ART.1 RPC When Act Takes Effect February 1, 1932

Article 1. Time when Act takes effect. — This Code shall take effect on the first

day of January, nineteen hundred and thirty-two.

Criminal law is that branch or division of municipal law which

- defines crimes,

- treats of their nature and

- provides for their punishment.

Characteristics of Criminal Law:

1. General – binding on all persons who reside or sojourn in

the Philippines

Exceptions:

a. Treaty Stipulation

b. Laws of Preferential Application

c. Principles of Public International Law

Example

(1). sovereigns and other chiefs of state

(2). Ambassadors, ministers plenipotentiary, minister resident

and charges d’affaires (BUT consuls, vice-consuls and

other foreign commercial representatives CANNOT claim the

privileges and immunities accorded to ambassadors and

ministers.)

2. Territorial – penal laws of the Philippines are enforceable

only within its territory

Exceptions: (Art. 2 of RPC – binding even on crimes

committed outside the Philippines)

a. offense committed while on a Philippine ship or airship

b. forging or counterfeiting any coin or

currency note of the Philippines or obligations and the

securities issued by the Government

c. introduction into the country of the above-mentioned

obligations and securities d. while being public officers and employees, an offense

committed in the exercise of their functions

e. crimes against national security and the law of the

nations defined in Title One of Book Two

The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere.

Terrestrial: jurisdiction exercised over the land

Fluvial: jurisdiction over maritime and interior waters (3-5 nautical miles from the shore)

Aerial: jurisdiction over the atmosphere French Rule The French Rule provides that the nationality of the vessel follows the flag

which the vessel flies, unless the crime committed endangers the national security of a foreign country where the vessel is within jurisdiction in which case such foreign country will never lose jurisdiction over such vessel. American Rule / Anglo-Saxon Rule This rule strictly enforces the territoriality of criminal law. The law of the

foreign country where a foreign vessel is within its jurisdiction is strictly applied, except if the crime affects only the internal management of the vessel in which case it is subject to the penal law of the country where it is

registered.

3. Prospective – the law does not have any retroactive effect.

Exception: when the law is favorable to the accused

Exceptions to the Exception:

a. The new law is expressly made inapplicable to pending

actions or existing causes of action

b. Offender is a habitual criminal

Effect of repeal of penal law to liability of offender

Total or absolute, or partial or relative repeal. — As to the effect of repeal of penal

law to the liability of offender, qualify your answer by saying whether the repeal is

absolute or total or whether the repeal is partial or relative only.

A repeal is absolute or total when the crime punished under the repealed law has been

decriminalized by the repeal. Because of the repeal, the act or omission which used to

be a crime is no longer a crime. An example is Republic Act No. 7363, which

decriminalized subversion.

A repeal is partial or relative when the crime punished under the repealed law

continues to be a crime inspite of the repeal. This means that the repeal merely

modified the conditions affecting the crime under the repealed law. The modification may be prejudicial or beneficial to the offender. Hence, the following rule:

Consequences if repeal of penal law is total or absolute

(1) If a case is pending in court involving the violation of the repealed law, the

same shall be dismissed, even though the accused may be a habitual delinquent.

(2) If a case is already decided and the accused is already serving sentence by

final judgment, if the convict is not a habitual delinquent, then he will be entitled to a

release unless there is a reservation clause in the penal law that it will not apply to

those serving sentence at the time of the repeal. But if there is no reservation, those

who are not habitual delinquents even if they are already serving their sentence will

receive the benefit of the repealing law. They are entitled to release.

If they are not discharged from confinement, a petition for habeas corpus should be

filed to test the legality of their continued confinement in jail.

If the convict, on the other hand, is a habitual delinquent, he will continue serving the

sentence in spite of the fact that the law under which he was convicted has already

been absolutely repealed. This is so because penal laws should be given retroactive

application to favor only those who are not habitual delinquents.

Consequences if repeal of penal law is partial or relative

(1) If a case is pending in court involving the violation of the repealed law, and

the repealing law is more favorable to the accused, it shall be the one applied to him.

So whether he is a habitual delinquent or not, if the case is still pending in court, the

repealing law will be the one to apply unless there is a saving clause in the repealing

law that it shall not apply to pending causes of action. (2) If a case is already decided and the accused is already serving sentence by

final judgment,even if the repealing law is partial or relative, the crime still remains to

be a crime. Those who are not habitual delinquents will benefit on the effect of that

repeal, so that if the repeal is more lenient to them, it will be the repealing law that will

henceforth apply to them.

Under Article 22, even if the offender is already convicted and serving sentence, a law

which is beneficial shall be applied to him unless he is a habitual delinquent in

accordance with Rule 5 of Article 62.

Consequences if repeal of penal law is express or implied

(1) If a penal law is impliedly repealed, the subsequent repeal of the repealing

law will revive the original law. So the act or omission which was punished as a crime

under the original law will be revived and the same shall again be crimes although

during the implied repeal they may not be punishable.

(2) If the repeal is express, the repeal of the repealing law will not revive the first

law, so the act or omission will no longer be penalized.

These effects of repeal do not apply to self-repealing laws or those which have

automatic termination. An example is the Rent Control Law which is revived by

Congress every two years.

Theories of Criminal Law:

1. Classical Theory – basis is man’s free will to choose between

good and evil, that is why more stress is placed upon the

result of the felonious act than upon the criminal himself.

The purpose of penalty is retribution. The RPC is generally

governed by this theory.

Man is essentially a moral creature with an absolute free will to

choose between good and evil and therefore more stress is placed upon the result

of the felonious act than upon the criminal himself.

2. Positivist Theory – basis is the sum of social and economic

phenomena which conditions man to do wrong in spite of or

contrary to his volition. This is exemplified in the provisions

on impossible crimes and habitual delinquency.

Man is subdued occasionally by a strange and morbid phenomenon

which conditions him to do wrong in spite of or contrary to his volition.

3. Mixed Theory – combination of the classical and positivist

theories wherein crimes that are economic and social in nature

should be dealt in a positive manner. The law is thus

more compassionate.

BASIC MAXIMS IN CRIMINAL LAW

Doctrine of Pro Reo

Whenever a penal law is to be construed or applied and the law admits of two

interpretations – one lenient to the offender and one strict to the offender – that

interpretation which is lenient or favorable to the offender will be adopted.

Nullumcrimen, nullapoena sine lege

There is no crime when there is no law punishing the same. This is true to civil law

countries, but not to common law countries.

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

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

Actus non facitreum, nisi mens sit rea

The act cannot be criminal where the mind is not criminal. This is true to a felony

characterized by dolo, but not a felony resulting from culpa. This maxim is not an

absolute one because it is not applied to culpable felonies, or those that result from

negligence.

Utilitarian Theory or Protective Theory

The primary purpose of the punishment under criminal law is the protection of society

from actual and potential wrongdoers. The courts, therefore, in exacting retribution

for the wronged society, should direct the punishment to potential or actual

wrongdoers, since criminal law is directed against acts and omissions which the

society does not approve. Consistent with this theory, the mala prohibita principle

which punishes an offense regardless of malice or criminal intent, should not be

utilized to apply the full harshness of the special law.

Sources of Criminal Law

1. The Revised Penal Code

2. Special Penal Laws – Acts enacted of the Philippine Legislature punishing

offenses or omissions.

Construction of Penal Laws:

1. Liberally construed in favor of offender

Ex:

a. the offender must clearly fall within the terms of the law

b. an act is criminal only when made so by the statute

2. In cases of conflict with official translation, original

Spanish text is controlling,

3. No interpretation by analogy.

LIMITATIONS ON POWER OF CONGRESS TO ENACT PENAL

LAWS

1. ex post facto law

2. bill of attainder

3. law that violates the equal protection clause

of the constitution

4. law which imposes cruel and unusual punishments nor excessive

fines

R.A. No. 75 - penalizes acts which would impair the proper

observance by the Republic and inhabitants of the Philippines of

the immunities, rights, and privileges of duly accredited

foreign diplomatic representatives in the Philippines

Art. 2. Application of RPC Provisions

Art. 2. Application of its provisions. — Except as provided in the treaties and

laws of preferential application, the provisions 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

Islands or obligations and securities issued by the Government of the

Philippine Islands; chan robles virtual law library

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

of the obligations and securities mentioned in the presiding number;

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

exercise of their functions; or

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

nations, defined in Title One of Book Two of this Code.

1. Should commit an offense while on a Philippine ship or

airship

RULES:

1. Philippine vessel or airship – Philippine law shall apply to

offenses committed in vessels registered with the Philippine

Bureau of Customs. It is the registration, not the

citizenship of the owner which matters.

2. Foreign vessel

a. French Rule

General Rule: Crimes committed aboard a foreign vessel

within the territorial waters of a country are NOT

triable in the courts of such country.

Exception: commission affects the peace and security of

the territory, or the safety of the state is endangered.

b. English Rule

General Rule: Crimes committed aboard a foreign vessel

within the territorial waters of a country are triable

in the courts of such country.

Exception: When the crime merely affects things within

the vessel or it refers to the internal management

thereof.

This is applicable in the Philippines.

When the crime is committed in a war vessel of a foreign

country, the NATIONALITY of the vessel will ALWAYS

determine jurisdiction because war vessels are part of

the sovereignty of the country to whose navel

force they belong.

These rules are NOT applicable if the vessel is on the

high seas when the crime was committed, in these cases,

the laws of the nationality of the ship will always apply.

The country of registry determines the nationality of

the vessel, NOT ITS OWNERSHIP. A Filipino-owned

vessel registered in China must fly the Chinese flag.

Extraterritorial refers to the application of the

Revised Penal Code outside the Philippines territory:

Three International Theories on Aerial Jurisdiction

a. Free Zone Theory

The atmosphere over the country is free and not

subject to the jurisdiction of the subjacent state,

except for the protection of its national security

and public order.

b. Relative Theory

The subjacent state exercises jurisdiction over the

atmosphere only to the extent that it can effectively

exercise control thereof.

c. Absolute Theory

1. The subjacent state has complete jurisdiction

over the atmosphere above it subject only to the

innocent passage by aircraft of a foreign country.

NOTE: The Philippines adopts this theory.

2. Under this theory, if the crime is committed in an

aircraft, no matter how high, as long as it can be

established that it is within the Philippine

atmosphere, Philippine criminal law will govern.

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

the Philippine Islands or obligations and securities issued by

the Government of the Philippine Islands;

1. The forgery is committed abroad

2. And it refers to Philippine coin, currency note,

obligation and security

3. Should be liable for acts connected with the

introduction into these islands of the obligations and

securities mentioned in the presiding number;

4. While being public officers or employees, should commit

an offense in the exercise of their functions; or

a) Those having to do with the discharge of their duties

in a foreign country.

b) The functions contemplated are those, which are, under

the law:

i) to be performed by the public officer

ii) in the Foreign Service of the Philippine government

iii) in a foreign country.

NOTE: The Revised Penal Code governs if the crime

(whether or not in relation to the exercise of

public functions) was committed within the

Philippine Embassy or within the embassy grounds

in a foreign country. This is because embassy

grounds are considered an extension of sovereignty.

Thus the crime is deemed to have been committed

in Philippine soil.

Illustration: A Philippine consulate official who is

validly married here in the Philippines and who marries

again in a foreign country cannot be prosecuted

here for bigamy because this is a crime not connected

with his official duties. However, if the second marriage

was celebrated within the Philippine embassy, he may be

prosecuted here, since it is as if he contracted the

marriage here in the Philippines.

5. Should commit any of the crimes against national

security and

the law of nations, defined in Title One of Book Two of this

Code.

1. Rebellion is not included.

2. Any crime against public order is under the jurisdiction

of the host country.

Art. 3. Felonies

Art. 3. Definitions. — Acts and omissions punishable by law are felonies

(delitos). Felonies are committed not only be 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.

Felonies – acts and omissions punishable by the Revised Penal Code

Crime – acts and omissions punishable by any law.

Act – an overt or external act

Omission – failure to perform a duty required by law

Misdemeanor: a minor infraction of the law, such as a violation of an

ordinance, is referred to as a misdemeanor.

MALA IN SE AND MALA PROHIBITA

Violations of the Revised Penal Code are referred to as malum in se, which literally

means, that the act is inherently evil or bad or per se wrongful. On the other hand,

violations of special laws are generally referred to as malumprohibitum.

Note, however, that not all violations of special laws are mala prohibita. While intentional felonies are always mala in se, it does not follow that prohibited acts done

in violation of special laws are always mala prohibita. Even if the crime is punished

under a special law, if the act punished is one which is inherently wrong, the same is

malum in se, and, therefore, good faith and the lack of criminal intent is a valid

defense; unless it is the product of criminal negligence or culpa.

Likewise when the special laws requires that the punished act be committed knowingly

and willfully, criminal intent is required to be proved before criminal liability may arise.

When the act penalized is not inherently wrong, it is wrong only because a law

punishes the same.

ELEMENTS OF FELONIES

a. There must be an act or omission

b. That the act or omission must be punishable by the RPC

c. That the act is performed or the commission incurred by means

of dolo or culpa

Dolo - deliberate intent.Must be coupled with freedom of action

and intelligence on the part of the offender as to the

act done by him.

Actus Reus - Physical act

Mens rea - a guilty mind, a guilty or wrongful purpose or

criminal intent.

Gravamen of the offense

Omission is a. the failure to perform a duty

b. required by law.

c. It is important that there is a law requiring

the performance of an act, if there is no

positive duty, there is no liability.

Examples: Omission

1. Failure to render assistance

2. Failure to issue receipt

3. non disclosure of knowledge of conspiracy

against the government.

NULLUM CRIMEN, NULLA POENA SINE LEGE – There is no crime

when there is no law punishing it.

Classification Of Felonies According To The Means By Which They Are

Committed:

1. Intentional Felonies- by means of deceit (dolo)

Requisites:

a. freedom

b. intelligence

c. intent. Examples: murder, treason, and robbery

Criminal intent is not necessary in these cases:

(1) When the crime is the product of culpa or negligence, reckless imprudence, lack of

foresight or lack of skill;

(2) When the crime is a prohibited act under a special law or what is called

malumprohibitum.

In criminal law, intent is categorized into two:

1.) General criminal intent is presumed from the mere doing of a wrong act. This does not require proof. The burden is upon the wrong doer to prove that he

acted without such criminal intent.

2.) Specific criminal intent is not presumed because it is an ingredient or element

of a crime, like intent to kill in the crimes of attempted or frustrated

homicide/parricide/murder. The prosecution has the burden of proving the

same.

Distinction between intent and discernment

Intent is the determination to do a certain thing, an aim or purpose of the mind. It is

the design to resolve or determination by which a person acts.

Discernment is the mental capacity to tell right from wrong. It relates to the moral

significance that a person ascribes to his act and relates to the intelligence as an

element of dolo, distinct from intent.

Distinction between intent and motive

Intent is demonstrated by the use of a particular means to bring about a desired result

– it is not a state of mind or a reason for committing a crime.

On the other hand, motive implies motion. It is the moving power which impels one to do an act. When there is motive in the commission of a crime, it always comes before

the intent. But a crime may be committed without motive.

If the crime is intentional, it cannot be committed without intent. Intent is manifested

by the instrument used by the offender. The specific criminal intent becomes material

if the crime is to be distinguished from the attempted or frustrated stage.

MISTAKE OF FACT – (Ignorantia Facti Excusat) misapprehension

of fact on the part of the person who caused injury to

another. He is not criminally liable.

Requisites:

a. the act done would have been lawful had the facts

been as the accused believed them to be

b. intention is lawful

c. mistake must be without fault or carelessness by

the accused

Example:

People v. Ah Chong (1910)

A houseboy who stabs his roommate in the dark,

honestly mistaking the latter to be a robber

responsible for a series of break-ins in the area,

and after crying out sufficient warnings and

believing himself to be under attack, cannot be

held criminally liable for homicide.

2. Culpable Felonies- by means of fault (culpa)

Requisites:

a. freedom

b. intelligence

c. negligence (lack of foresight) and imprudence (lack of skill)

d.Lack of intent

1. by means of fault (culpa) – There is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

1. Imprudence – deficiency of action; e.g. A was driving a truck along a road.

He hit B because it was raining – reckless imprudence.

2. Negligence - deficiency of perception; failure to foresee impending danger,

usually involves lack of foresight

ART.4 Criminal Liability

Art. 4. Criminal liability. — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done

be different from that which he intended.

2. By any person performing an act which would be an offense against

persons or property, were it not for the inherent impossibility of its

accomplishment or an account of the employment of inadequate or ineffectual

means.

Par.1 Criminal liability for a felony committed different from

that intended to be committed

Requisites:

1. felony has been committed intentionally

2. injury or damage done to the other party is the direct,

natural and logical consequence of the felony

Hence, since he is still motivated by criminal intent,

the offender is criminally liable in:

1. Error in personae – mistake in identity

2. Abberatio ictus – mistake in blow

3. Praetor intentionem - lack of intent to commit so

grave a wrong

PROXIMATE CAUSE – the cause, which in the natural and

continuous sequence unbroken by any efficient intervening

cause, produces the injury, without which the result would

not have occurred

Requisites:

1. the felony was intentionally committed 2. the felony is the proximate cause of the wrong done

Doctrine of Proximate Cause – such adequate and efficient cause as, in the

natural order of events, and under the particular circumstances surrounding

the case, which would necessarily produce the event.

Requisites:

1. the direct, natural, and logical cause

2. produces the injury or damage

3. unbroken by any sufficient intervening cause

4. without which the result would not have occurred

Proximate Cause is negated by: 1. Active force, distinct act, or fact absolutely foreign from the felonious act of

the accused, which serves as a sufficient intervening cause.

2. Resulting injury or damage is due to the intentional act of the victim.

proximate cause does not require that the offender needs to actually touch the body

of the offended party. It is enough that the offender generated in the mind of the

offended party the belief that made him risk himself.

Requisite for Presumption blow was cause of the death – Where there has been an injury inflicted sufficient to produce death followed by the demise of

the person, the presumption arises that the injury was the cause of the death.

Provided:

1. victim was in normal health

2. death ensued within a reasonable time

The one who caused the proximate cause is the one liable. The one who caused

the immediate cause is also liable, but merely contributory or sometimes totally not

liable.

Par. 2 Impossible Crime

Requisites:

1. Act would have been an offense against persons or property.

2. There was criminal intent.

3. Accomplishment is inherently impossible; or inadequate

or ineffectual means are employed.

4. Act is not an actual violation of another provision of

the Code or of special law.

Impossible crime occurs when there is:

1. inherent impossibility to commit the crime

2. inadequate means to consummate the crime

3. ineffectual means to consummate the crime

Art. 5: Duty Of The Courts, Acts Not Covered By Law

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

reasons which induce the court to believe that said act should be made the

subject of 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

suspending the execution of the sentence, when a strict enforcement of the

provisions 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: Paragraph 2 does not apply to crimes punishable by special

law, including profiteering, and illegal possession of firearms

or drugs. There can be no executive clemency for these crimes.

Article 5 covers two situations:

1. The court cannot convict the accused because the acts do not

constitute a crime.

a. The proper judgment is acquittal.

b. The court is mandated to report to the Chief Executive that

said act be made subject of penal legislation and why.

2. Where the court finds the penalty prescribed for the crime

too harsh considering the conditions surrounding the

commission of the crime,

a. The judge should impose the law.

b. The most that he could do is recommend to the Chief

Executive to grant executive clemency.

ART.6 Consummated, Frustrated, And Attempted Felonies

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated

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

A felony is consummated when all the elements necessary for its execution

and accomplishment are present; and it is frustrated when the offender

performs all the acts of execution which would produce the felony as a

consequence but which, nevertheless, do not produce it by reason of causes

independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony

directly or over acts, and does not perform all the acts of execution which

should produce the felony by reason of some cause or accident other than this

own spontaneous desistance.

STAGES OF EXECUTION:

1. CONSUMMATED – when all the elements necessary for

its execution

and accomplishment are present

2. FRUSTRATED

Elements: a. offender performs all acts of execution

b. all these acts would produce the felony as a consequence

c. BUT the felony is NOT produced

d. by reason of causes independent of the will of the

perpetrator

3. ATTEMPTED

Elements:

a. offender commences the felony directly by overt acts

b. does not perform all acts which would produce the felony

c. his acts are not stopped by his own spontaneous desistance

Crimes, which do not admit of Frustrated and Attempted Stages:

1. Offenses punishable by Special Penal Laws, unless the law

provides otherwise

2. Formal crimes – consummated in one instance

(Ex: slander, adultery, etc.)

3. Impossible Crimes

4. Crimes consummated by mere attempt

(Ex: attempt to flee to an enemy country, treason, corruption of

minors)

5. Felonies by omission

6. Crimes committed by mere agreement (Ex: betting in sports:

“ending,”

corruption of public officers)

Crimes which do not admit of Frustrated Stage:

1. Rape

2. Bribery

3. Corruption of Public Officers

4. Adultery

5. Physical Injury

2 stages in the development of a crime:

1. Internal acts

- e.g. mere ideas of the mind

- not punishable

2. External acts

a. Preparatory acts - ordinarily not punishable except when

considered by law as independent crimes (e.g. Art. 304,

Possession of picklocks and similar tools)

b. Acts of Execution - punishable under the RPC

Attempted vs. Frustrated Felony

Desistance

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

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

desistance will negate criminal liability.

The spontaneous desistance of the offender negates only the attempted stage but

not necessarily all criminal liability. Even though there was desistance on the part of

the offender, if the desistance was made when acts done by him already resulted to a

felony, that offender will still be criminally liable for the felony brought about his act

In deciding whether a felony is attempted or frustrated or consummated, there

are three criteria involved:

(1) The manner of committing the crime;

(2) The elements of the crime; and

(3) The nature of the crime itself.

Formal Crimes – are crimes which are consummated in one instance.

ART.7 When Light Felonies Are Punishable

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.

General Rule: Punishable only when they have been consummated

Exception:

Even if not consummated, if committed against persons or

property

Ex: slight physical injuries, theft, alteration of

boundary marks, malicious mischief, and intriguing

against honor.

Note: Only principals and accomplices are liable;

accessories are NOT liable even if committed against

persons or property.

ART.8 Conspiracy and Proposal To Commit Felony

Art. 8. Conspiracy and proposal to commit felony. — Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially

provides a penalty therefor.

A conspiracy exists when two or more persons come to an agreement

concerning the commission of a felony and decide to commit it.

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

proposes its execution to some other person or persons.

CONSPIRACY a matter of substance which must be alleged in the information, otherwise, the court

will not consider the same.

Requisites:

1. Two or more persons come to an agreement

2. For the commission of a felony

3. And they decide to commit it

Two ways for conspiracy to exist:

(1) There is an agreement.

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

meeting of the minds towards a common criminal goal or criminal objective. When

several offenders act in a synchronized, coordinated manner, the fact that their acts

complimented each other is indicative of the meeting of the minds. There is an implied

agreement.

Concepts of Conspiracy:

1. As a crime in itself

Ex: conspiracy to commit rebellion, insurrection, treason,

sedition, coup d’ etat

2. Merely as a means to commit a crime

Requisites:

a. a prior and express agreement

b. participants acted in concert or simultaneously, which is

indicative of a meeting of the minds towards a

common criminal objective

Note: Conspiracy to commit a felony is different from

conspiracy as a manner of incurring criminal liability.

General Rule: Conspiracy to commit a felony is not punishable since

it is merely a preparatory act.

Exception: when the law specifically provides for a penalty

Ex: rebellion, insurrection, sedition,

coup d’ etat

General Rule: The act of one is the act of all.

Exception: Unless one or some of the conspirators

committed some other crime which

is not part of the intended crime.

Exception to the exception: When the act

constitutes an indivisible offense.

People v. Abut, et al. (GR No. 137601, April 24, 2003)

OVERT ACTS IN CONSPIRACY MUST CONSIST OF:

1. Active participation in the actual commission of the crime

itself, or

2. Moral assistance to his co-conspirators by being present at

the time of the commission of the crime, or

3. Exerting a moral ascendance over the other co-conspirators

by moving them to execute or implement the criminal plan

PROPOSAL TO COMMIT A FELONY

Requisites:

1. A person has decided to commit a felony

2. And proposes its execution to some other person or persons

People vs. Nierra

If a co-conspirator merely cooperated in the commission of

the crime with insignificant or minimal acts, such co-conspirator

should be punished as an accomplice only.

The common notion is that when there is conspiracy involved,

the participants are punished as principals. This notion is

no longer absolute. The reason given is that penal laws

always favor a milder form of responsibility upon and offender.

Illustration:

There was a planned robbery, and the taxi driver was present

during the planning. The taxi driver agreed for the use of

his cab but said, “I will bring you there, and after

committing the robbery I will return later.” The taxi driver

brought the conspirators where the robbery would be committed.

After the robbery was finished, he took the conspirators

back to his taxi and brought them away. It was held that

the taxi driver was liable only as an accomplice. His

cooperation was not really indispensable. The robbers could

have engaged another taxi. The taxi driver did not really

stay during the commission of the robbery. At most,

what he only extended was his cooperation.

A conspiracy is possible even when participants are not known

to each other. When several persons who do not know each

other simultaneously attack the victim, the act of one is the

act of all, regardless of the degree of injury inflicted by

any one of them. All will be liable for the consequences.

Do not think that participants are always known to each other.

The Supreme Court has ruled that one who desisted is not

criminally liable. As pointed out earlier, desistance is true

only in the attempted stage. Before this stage, there is only

a preparatory stage. Conspiracy is only in the preparatory stage..

Illustrations:

A thought of having her husband killed because the latter was

maltreating her. She hired some persons to kill him and

pointed at her husband. The goons got hold of her husband

and started mauling him. The wife took pity and shouted

for them to stop but the goons continued. The wife ran away.

The wife was prosecuted for parricide. But the Supreme Court

said that there was desistance so she is not criminally

liable.

Do not search for an agreement among the participants. If they

acted simultaneously to bring about their common intention,

conspiracy exists. And when conspiracy exists, do not consider

the degree of participation of each conspiracy because the act

of one is the act of all. As a general rule, they have equal

responsibility.

Illustration:

A, B and C have been courting the same lady for several years.

On several occasions, they even visited the lady on intervening

hours. Because of this, A, B and C became hostile with one

another.

One day, D invited the young lady and she accepted the invitation.

Eventually, the young lady agreed to marry D. When A, B and C

learned about this, they all stood up to leave the house of the young lady feeling disappointed. When A looked back at the

young lady with D, he saw D laughing menacingly. At that

instance,

A stabbed D. C and B followed. In this case, it was held that

conspiracy was present

People v. Pangilinan,

Implied Conspiracy Conspiracy need not be direct but may be

inferred

from the conduct of the parties, their joint purpose, community

of interest and in the mode and manner of commission of

the offense.

The legal effects of implied conspiracy are:

a. Not all those present at the crime scene will be considered

conspirators;

b. Only those who participated in the criminal acts during the

commission of the crime will be considered co-conspirators;

c. Mere acquiescence to or approval of the commission of the

crime, without any act of criminal participation, shall not render

one

criminally liable as co-conspirator.

Siton vs. CA,

The idea of a conspiracy is incompatible with the idea of a free

for all. There is no definite opponent or definite intent as when

a basketball crowd beats a referee to death.

Composite crimes – are crimes which, in substance, consist of more than one crime but in the eyes of the law, there is only one crime. Ex. Crimes with

robbery with rape, robbery with homicide, robbery with physical injuries. Complex crimes – are crimes which in sum, consist of a mixture of two

crimes, but the penalty that will be imposed shall be the one with the graver offense

ART.9 Grave Felonies, Less Grave Felonies And Light Felonies

Grave felonies, less grave felonies and light felonies. — Grave felonies are

those to which the law attaches the capital punishment or penalties which in

any of their periods are afflictive, in accordance with Art. 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 Art..

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

penalty of arrest menor or a fine not exceeding 200 pesos or both; is provided.

Importance of Classification

1. To determine whether the felonies can be complexed or not.

2. To determine the prescription of the crime and of the penalty.

Penalties (imprisonment):

1. Grave felonies – afflictive penalties: 6 yrs. and 1 day to

reclusion perpetua (life)

2. Less grave felonies – correctional penalties: 1 month and 1

day to 6 years

3. Light felonies - arresto menor (1 day to 30 days)

As to the liability of the participants in a grave, less grave

or light felony:

1. When the felony is grave, or less grave, all participants are

criminally liable.

2. But where the felony is only light, only the principal and

the accomplice are liable. The accessory is not.

Therefore, it is only when the light felony is against persons

or property that criminal liability attaches to the principal

or accomplice, even though the felony is only attempted or

frustrated, but accessories are not liable for light felonies.

CLASSIFICATION OF FELONIES

This question was asked in the bar examination: How do you classify felonies or how

are felonies classified?

What the examiner had in mind was Articles 3, 6 and 9. Do not write the classification

of felonies under Book 2 of the Revised Penal Code. That was not what the examiner

had in mind because the question does not require the candidate to classify but also to

define. Therefore, the examiner was after the classifications under Articles 3, 6 and 9.

ART.10 Offenses Not Subject To The Provisions Of RPC ARTICLE 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.

General Rule: RPC provisions are supplementary to special laws.

For Special Laws: Penalties should be imprisonment, and not reclusion perpetua, etc.

Offenses that are attempted or frustrated are not punishable, unless otherwise

stated.

Plea of guilty is not mitigating for offenses punishable by special laws.

No minimum, medium, and maximum periods for penalties.

No penalty for an accessory or accomplice, unless otherwise stated

Exceptions:

1. when special law provides otherwise

2. when provision of RPC are impossible of application, either

by express provision or by necessary implication

Provisions of RPC applicable to special laws:

- Art. 16 Participation of Accomplices

- Art. 22 Retroactivity of Penal laws if favorable to the accused

- Art. 45 Confiscation of instruments used in the crime

Note: When the special law adopts the penalties

imposed in the RPC i.e. penalties as reclusion

perpetua, prision correccional, etc. the provisions of

the RPC on imposition of penalties based on stages

of execution, degree of participation and attendance

of mitigating and aggravating circumstance may be

applied by necessary implication.

Special Laws vs. Penal Laws

Absolutory cause

The effect of this is to absolve the offender from criminal liability, although not from

civil liability. It has the same effect as an exempting circumstance, but you do not call

it as such in order not to confuse it with the circumstances under Article 12.

Extenuating circumstances

The effect of this is to mitigate the criminal liability of the offender. In other words,

this has the same effect as mitigating circumstances, only you do not call it mitigating

because this is not found in Article 13.

Distinctions between justifying circumstances and exempting circumstances

In justifying circumstances –

(1) The circumstance affects the act, not the actor;

(2) The act complained of is considered to have been done within the bounds

of law; hence, it is legitimate and lawful in the eyes of the law;

(3) Since the act is considered lawful, there is no crime, and because there is

no crime, there is no criminal;

(4) Since there is no crime or criminal, there is no criminal liability as well

as civil liability.

In exempting circumstances –

(1) The circumstances affect the actor, not the act;

(2) The act complained of is actually wrongful, but the actor acted without

voluntariness. He is a mere tool or instrument of the crime;

(3) Since the act complained of is actually wrongful, there is a crime. But

because the actor acted without voluntariness, there is absence of dolo or culpa. There is no criminal;

(4) Since there is a crime committed but there is no criminal, there is civil

liability for the wrong done. But there is no criminal liability. However, in

paragraphs 4 and 7 of Article 12, there is neither criminal nor civil liability.

When you apply for justifying or exempting circumstances, it is confession and

avoidance and burden of proof shifts to the accused and he can no longer rely on

weakness of prosecution’s evidence.

ART.11 Justifying Circumstances ARTICLE 11. Justifying Circumstances. — The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur: First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself.

2. Anyone who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, 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 rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this article 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, does 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; Third. That there be no other practical and less 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 – where the act of a person is

in accordance with law such that said person is deemed not to

have violated the law.

General Rule: No criminal and civil liability incurred.

Exception: There is civil liability with respect to par. 4

where the liability is borne by persons benefited

by the act.

Par. 1 Self-defense

Elements:

1. Unlawful Aggression

- indispensable requirement

- There must be actual physical assault or aggression or

an immediate and imminent threat, which must be offensive

and positively strong.

- The defense must have been made during the existence of

aggression, otherwise, it is no longer justifying.

- While generally an agreement to fight does not constitute

unlawful aggression, violation of the terms of the agreement

to fight is considered an exception.

2. Reasonable necessity of the means employed to prevent or

repel it

*Means were used to prevent or repel *Means must be necessary and there is no other way to prevent or repel it *Means must be reasonable – depending on the circumstances, but generally proportionate to the force of the aggressor.

Test of reasonableness depends on:

(1) weapon used by aggressor (2) physical condition, character, size and other circumstances

of aggressor

(3) physical condition, character, size and circumstances of

person defending himself

(4) place and occasion of assault

*The gauge of reasonable necessity is the instinct of self-preservation, i.e. a person did not use his rational mind to pick a means of defense but acted out of self-preservation, using the nearest or only means available to defend himself, even if such means be disproportionately advantageous as compared with the means of violence employed by the aggressor.

3. Lack of sufficient provocation on the part of the person

defending himself

NOTE: Perfect equality between the weapons used,

nor material commensurability between the means of

attack and defense by the one defending himself and

that of the aggressor is not required

REASON: the person assaulted does not have sufficient

opportunity or time to think and calculate.

Rights included in self-defense:

1. defense of person

2. defense of rights protected by law

3. defense of property (only if there is also an actual and

imminent danger on the person of the one defending)

4. defense of chastity

Kinds of Self-Defense:

1. self-defense of chastity – there must be an attempt to

rape the victim

2. defense of property – must be coupled with an attack on the

person of the owner, or on one entrusted with the care of

such property.

People v. Narvaez, (GR No. L-33466-67, April 20, 1983)

Attack on property alone was deemed sufficient to comply

with element of unlawful aggression.

3. self-defense in libel – justified when the libel is aimed

at a person’s good name.

“Stand ground when in the right” - the law does not require

a person to retreat when his assailant is rapidly advancing

upon him with a deadly weapon.

NOTE: Under Republic Act 9262 (Anti-Violence Against Women

and Their Children Act of 2004), victim-survivors who are

found by the Courts to be suffering from Battered Woman Syndrome (BWS) do not incur any criminal or civil liability

despite absence of the necessary elements for the justifying

circumstance of self-defense in the RPC. BWS is a

scientifically defined pattern of psychological and behavioral

symptoms found in women living in battering relationships as

a result of cumulative abuse.

*Burden of proof – on the accused (sufficient, clear and convincing evidence; must rely on the strength of his own evidence and not on the weakness of the prosecution).

Par. 2 Defense of Relative

Elements:

1. Unlawful Aggression (indispensable requirement)

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

3. In case the provocation was given by the person attacked,

the one making the defense had no part in such provocation.

Relative entitled to the defense:

1. spouse

2. ascendants

3. descendants

4. legitimate, natural or adopted brothers and sisters, or

relatives by affinity in the same degrees

5. relatives by consanguinity within the 4th civil degree

NOTE: The relative defended may be the original

aggressor. All that is required to justify the act of the

relative defending is that he takes no part in such

provocation.

Par. 3 Defense of Stranger

Elements:

1. unlawful aggression (indispensable requirement)

2. reasonable necessity of the means employed to prevent or

repel it

3. person defending be not induced by revenge, resentment or

other evil motive

Par. 4 State of Necessity (Avoidance of Greater Evil or Injury)

Elements:

1. evil sought to be avoided actually exists 2. injury feared be greater than that done to avoid it

3. no other practical and less harmful means of preventing it

NOTE: The necessity must not be due to the negligence or

violation of any law by the actor.

Par. 5 Fulfillment of Duty or Lawful Exercise of a Right or

Office

Elements:

1. accused acted in the performance of duty or in the lawful

exercise of a right or office

2. the injury caused or offense committed be the necessary

consequence of the due performance of the duty, or the

lawful exercise of such right or office.

NOTE: The accused must prove that he was duly

appointed to the position claimed he was discharging

at the time of the commission of the offense. It must

also be shown that the offense committed was the

necessary consequence of such fulfillment of duty, or

lawful exercise of a right or office.

Par. 6 Obedience to a Superior Order

Elements:

1. an order has been issued

2. order has a lawful purpose (not patently illegal)

3. means used by subordinate to carry out said order is lawful

NOTE: The superior officer giving the order cannot

invoke this justifying circumstance. Good faith is

material, as the subordinate is not liable for carrying

out an illegal order if he is not aware of its illegality

and he is not negligent.

General Rule: Subordinate cannot invoke this

circumstance when order is patently illegal.

Exception: When there is compulsion of an

irresistible force, or under impulse of

uncontrollable fear.

ART.12 Circumstances Which Exempt from Criminal Liability ARTICLE 12. Circumstances Which Exempt from Criminal Liability. — The following are exempt from criminal liability: 1. 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 established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court.

2. A person under nine years of age.

3. A person over nine years of age and under fifteen, unless he has acted with 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. 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.

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

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

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

EXEMPTING CIRCUMSTANCES – grounds for exemption from

punishment because there is wanting in the agent of the crime any

of the conditions which make the act voluntary or negligent.

Basis: The exemption from punishment is based on the complete

absence of intelligence, freedom of action, or intent, or on the

absence of negligence on the part of the accused.

Burden of proof: Any of the circumstances is a matter of defense

and must be proved by the defendant to the satisfaction of the court.

Par. 1 Imbecility or Insanity

IMBECILE – one while advanced in age has a mental development

comparable to that of children between 2 and 7 years old.

He is exempt in all cases from criminal liability.

INSANE – one who acts with complete deprivation of

intelligence/reason or without the least discernment or with

total deprivation of freedom of will. Mere abnormality of the

mental faculties will not exclude imputability.

General Rule: Exempt from criminal liability

Exception: The act was done during a lucid interval.

NOTE: Defense must prove that the accused was insane at the

time of the commission of the crime because the presumption is

always in favor of sanity.

*Continuance of insanity will only be presumed in cases wherein the accused has been adjudged insane or has been committed to a hospital or an asylum for the insane. Procedure: court is to order the confinement of such persons in the hospitals or asylums established. Such persons will not be permitted to leave without permission from the court. The court, on the other hand, has no power to order such permission without first obtaining the opinion of the DOH that such persons may be released without danger.

Insanity at the time of the commission of the crime and not that at the time of the trial will exempt one from criminal liability. In case of insanity at the time of the trial, there will be a suspension of the trial until the mental capacity of the accused is restored to afford him a fair trial.

Reyes: Feeblemindedness is not imbecility because the offender can distinguish right from wrong. An imbecile and an insane to be exempted must not be able to distinguish right from wrong.

Relova: Feeblemindedness is imbecility.

Crimes committed while in a dream, by a somnambulist are embraced in the plea of insanity. Hypnotism, however, is a debatable issue.

Crime committed while suffering from malignant malaria is characterized by insanity at times thus such person is not criminally liable.

Dementia praecox is covered by the term insanity because homicidal attack is common in such form of psychosis. It is characterized by delusions that he is being interfered with sexually, or that his property is being taken, thus the person has no control over his acts.

Kleptomania or presence of abnormal, persistent impulse or tendency to steal, to be considered exempting, will still have to be investigated by competent psychiatrist to determine if the unlawful act is due to the irresistible impulse produced by his mental defect, thus loss of will-power. If such mental defect only diminishes the exercise of his willpower and did not deprive him of the consciousness of his acts, it is only mitigating.

Epilepsy which is a chronic nervous disease characterized by convulsive motions of the muscles and loss of consciousness may be covered by the term insanity. However, it must be shown that commission of the offense is during one of those epileptic attacks.

Par. 2 Under Nine Years of Age

Requisite: Offender is under 9 years of age at the time of the

commission of the crime. There is absolute criminal

irresponsibility in the case of a minor under 9

years of age.

NOTE: Under R.A. 9344 or the Juvenile Justice And Welfare Act

a minor 15 years and below is exempt from criminal liability *Age is computed up to the time of the commission of the crime. Age can be established by the testimonies of families and relatives.

Par. 3 Person Over 9 and Under 15 Acting Without Discernment

NOTE: Such minor must have acted without discernment to be

exempt. If with discernment, he is criminally liable.

Presumption: The minor committed the crime without

discernment.

DISCERNMENT – mental capacity to fully appreciate

the consequences of the unlawful act, which is shown by the: 1. manner the crime was committed

2. conduct of the offender after its commission

NOTE: Under R.A. 9344 a minor over 15 but but below 18 who

acted without discernment is exempt from criminal liability

Age Criminal Responsibility

15 years and below Absolute irresponsibility

Between 15 and 18 years old

Conditional responsibility

Without discernment – no liability With Discernment – mitigated liability

Between 15 and 18 years old Mitigated responsibility

Between 18 and 70 years old Full responsibility

Over 70 years old Mitigated responsibility

Presumption is always that such minor has acted without discernment. The prosecution is burdened to prove if otherwise.

Discernment means the mental capacity of a minor between 9 and 15 years of age to fully appreciate the consequences of his unlawful act. Such is shown by: (1) manner the crime was committed (i.e. commission of the crime during nighttime to avoid detection; taking the loot to another town to avoid discovery), or (2) the conduct of the offender after its commission (i.e. elation of satisfaction upon the commission of his criminal act as shown by the accused cursing at the victim).

Facts or particular facts concerning personal appearance which lead officers or the court to believe that his age was as stated by said officer or court should be stated in the record.

If such minor is adjudged to be criminally liable, he is charged to the custody of his family, otherwise, to the care of some institution or person mentioned in article 80. This is because of the court’s presupposition that the minor committed the crime without discernment.

Allegation of “with intent to kill” in the information is sufficient allegation of discernment as such conveys the idea that he knew what would be the consequences of his unlawful act. Thus is the case wherein the information alleges that the accused, with intent to kill, willfully, criminally and feloniously pushed a child of 8 1/2 years of age into a deep place. It was held that the requirement that there should be an allegation that she acted with discernment should be deemed amply met.

Par. 4 Accident without fault or intention of causing it ACCIDENT: Basis: lack of negligence and intent happens outside the sway of our will, and although it comes about some act of our will, lies beyond the bounds of humanly foreseeable consequences.

Elements:

1. A person is performing a lawful act

2. with due care

3. He causes injury to another by mere accident

4. Without fault or intention of causing it.

Par. 5 Irresistible Force

IRRESISTIBLE FORCE – offender uses violence or physical force to compel another person to commit a crime.

Basis: complete absence of freedom, an element of voluntariness

Elements:

1. The compulsion is by means of physical force.

2. The physical force must be irresistible.

3. The physical force must come from a third person

NOTE: Force must be irresistible so as to reduce the

individual to a mere instrument.

Par. 6 Uncontrollable Fear

UNCONTROLLABLE FEAR – offender employs intimidation or threat

in compelling another to commit a crime.

Basis: complete absence of freedom

DURESS – use of violence or physical force

Elements:

1. The threat which causes the fear is of an evil greater than, or at

least equal to, that which he is required to commit.

2. It promises an evil of such gravity and imminence that

an ordinary man would have succumbed to it.

NOTE: Duress to be a valid defense should be based on real, imminent or reasonable fear for one’s life or

limb. It should not be inspired by speculative, fanciful

or remote fear. A threat of future injury is not enough.

ACTUS ME INVITO FACTUS NON EST MEUS ACTUS – Any act done by

me against my will is not my act.

PAR 7. Insuperable Cause

INSUPERABLE CAUSE – some motive, which has lawfully, morally

or physically prevented a person to do what the law commands

Elements:

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

2. A person fails to perform such act.

3. His failure to perform such act was due to some lawful or

insuperable cause.

Ex:

1. A priest can’t be compelled to reveal what was confessed to him.

2. No available transportation – officer not liable for

arbitrary detention

3. Mother who was overcome by severe dizziness and extreme

debility, leaving child to die – not liable for infanticide

(People v. Bandian, 63 Phil 530)

ABSOLUTORY CAUSES – where the act committed is a crime but for

some reason of public policy and sentiment, there is no penalty

imposed. Exempting and justifying circumstances are absolutory

causes.

Examples of such other circumstances are:

1. spontaneous desistance (Art. 6)

2. accessories exempt from criminal liability (Art. 20)

3. Death or physical injuries inflicted under exceptional

circumstances (Art. 247)

4. persons exempt from criminal liability from theft, swindling,

malicious mischief (Art 332)

5. instigation

NOTE: Entrapment is NOT an absolutory cause. A buy-bust

operation conducted in connection with illegal drug-related

offenses is a form of entrapment.

Entrapment from Instigation

1. The ways and means are resorted to for the purpose of trapping

and capturing the lawbreaker in the execution of his

criminal plan. while The Instigator practically induces the would-be accused into the commission of the offense and

himself becomes a co-principal

2. In Entrapment, not a bar to accused prosecution and conviction

while in Instigation, Accused will be acquitted.

3. Entrapment is not an absolutoty cause while Instigation is an

absolutory cause.

INSTIGATION ENTRAPMENT

Instigator practically induces the would-be accused into the commission of the offense and himself becomes co-principal

The ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan.

Accused will be acquitted NOT a bar to accused’s prosecution and conviction

Absolutory cause NOT an absolutory cause

Complete Defenses in Criminal Cases:

1.) any of the essential elements of the crime charged is not proved by the prosecution and the elements proved do not constitute any

crime.

2.) act of the accused falls under justifying circumstances.

3.) case of the accused falls under exempting circumstances.

4.) covered by absolutory causes:

a.)spontaneous desistance; no crime under other provision or

penal law is committed

b.) attempted or frustrated light felony not against person or

property

c.) accessory is relative of principal

d.) legal grounds for arbitrary detention

e.) legal grounds for trespass

f.) theft, swindling or malicious mischief is committed against a

relative

g.) slight or less serious physical injuries are inflicted by the

person who surprised spouse/daughter in the act of sexual

intercourse w/ another

h.) marriage of the offender with the offended party in crimes of

rape, abduction, seduction or acts of lasciviousness

i.) instigation

5.) guilt of the accused not established beyond reasonable doubt.

6.) prescription of crimes

7.) pardon by the offended party before the institution of criminal

action in crime against chastity.

ART.13 Mitigating Circumstances

ARTICLE 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 eighteen years of age or over seventy 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.

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.

9. Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of consciousness of his acts.

10. And, finally, any other circumstance of a similar nature and analogous to those above mentioned.

MITIGATING CIRCUMSTANCES – those which if present in the

commission of the crime reduces the penalty of the crime but does

not erase criminal liability nor change the nature of the crime These are accompanying or accessory condition, event, or fact that (though not constituting a justification or excuse of an offense) may be considered

by the courts as reducing the degree of culpability or liability of the accused. Such circumstances may include family or personal situations, and may help in attracting a sentence less severe than a typical sentence for similar offenses. There are two distinctions: ordinary and privileged. o As to the nature of the circumstances, ordinary mitigating

circumstance can be offset by aggravating circumstances, while privileged can never be offset.

As to effect, ordinary, if not offset will operate to reduce the penalty

to a minimum period, provided the penalty is a divisible one (negotiable. Meaning if you hear the words of an officer Man 1, but because of the offender’s confession and divulging of other vital

information, Man 1 with reduced sentence of up to 5 years with

probation). With privileged, it operates to reduce the penalty by one or two degree, depending on what the law provides.

Privileged Mitigating Ordinary Mitigating

Offset by any aggravating circumstance

Cannot be offset by any aggravating circumstance

Can be offset by a generic aggravating circumstance

Effect on the penalty

Has the effect of imposing the penalty by 1 or 2 degrees than that provided by law

If not offset, has the effect of imposing the penalty in the minimum period

Kinds

Minority, Incomplete Self-defense, two or more mitigating circumstances without any aggravating circumstance (has the effect of lowering the penalty by one degree)

Those circumstances enumerated in paragraph 1 to 10 of Article 13

NOTE: A mitigating circumstance arising from a single fact absorbs

all the other mitigating circumstances arising from that same fact.

Par. 1 Incomplete Justifying or Exempting Circumstances

NOTE: This applies when not all the requisites are present.

If two requisites are present, it is considered a privileged

mitigating circumstance. However, in reference to Art.11(4) if

any of the last two requisites is absent, there is only an

ordinary mitigating circumstance. Remember though, that in self-

defense, defense of relative or stranger, unlawful aggression

must always be present as it is an indispensable requirement

Justifying circumstances a. Self-defense/defense of relative/defense of stranger – unlawful aggression must be present for Art 13 to be applicable. Other 2 elements not necessary. If 2 requisites are present – considered a privileged mitigating circumstance. Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and tries to stab Juan. Juan grabs his own knife and kills Pedro. Incomplete self-defense because although there was unlawful aggression and reasonable means to repel was taken, there was sufficient provocation on the part of Juan. But since 2 elements are present, it considered as privileged mitigating. b. State of Necessity (par 4) avoidance of greater evil or injury; if any of the last 2 requisites is absent, there’s only an ordinary Mitigating Circumstance. Example: While driving his car, Juan sees Pedro carelessly crossing the street. Juan swerves to avoid him, thus hitting a motorbike with 2 passengers, killing them instantly. Not all requisites to justify act were present because harm done to avoid injury is greater. Considered as mitigating. c. Performance of Duty (par 5) Example: Juan is supposed to arrest Pedro. He thus goes to Pedro’s hideout. Juan sees a man asleep. Thinking it was Pedro, Juan shot him. Juan may have acted in the performance of his duty but the crime was not a necessary consequence thereof. Considered as mitigating.

Exempting circumstance a. Minority over 9 and under 15 – if minor acted with discernment, considered mitigating Example: 13 year old stole goods at nighttime. Acted with discernment as shown by the manner in which the act was committed. b. Causing injury by mere accident – if 2

nd requisite (due care) and 1

st part

of 4th requisite (without fault – thus negligence only) are ABSENT, considered

as mitigating because the penalty is lower than that provided for intentional felony. Example: Police officer tries to stop a fight between Juan and Pedro by firing his gun in the air. Bullet ricocheted and killed Petra. Officer willfully discharged his gun but was unmindful of the fact that area was populated. c. Uncontrollable fear – only one requisite present, considered mitigating Example: Under threat that their farm will be burned, Pedro and Juan took turns guarding it at night. Pedro fired in the air when a person in the shadows refused to reveal his identity. Juan was awakened and shot the unidentified person. Turned out to be a neighbor looking for is pet. Juan may have acted under the influence of fear but such fear was not entirely uncontrollable. Considered mitigating

Par. 2 Under 18 or Over 70 Years Old

NOTE: Age of accused is determined by his age at

the date of commission of crime, not date of trial.

Par. 3 No Intention to Commit so Grave a Wrong

NOTE: Can be used only when the proven facts show that there

is a notable and evident disproportion between the means

employed to execute the criminal act and its consequences.

Factors that can be considered are:

1. weapon used

2. injury inflicted

3. part of the body injured

4. mindset of offender at the time of commission of crime

This provision addresses the intention of the offender at the

particular moment when the offender executes or commits the

criminal act, not to his intention during the planning stage

NOTE: In crimes against persons – if victim does not die, the

absence of the intent to kill reduces the felony to mere

physical injuries. It is not considered as mitigating. It is

mitigating only when the victim dies.

NOTE: It is not applicable to felonies by negligence because

in felonies through negligence, the offender acts without

intent. The intent in intentional felonies is replaced by

negligence or imprudence. There is no intent on the part of

the offender, which may be considered as diminished *Basis of par 3: intent, an element of voluntariness in intentional felony, is diminished

Par. 4 Provocation or Threat

Provocation – any unjust or improper conduct or act of the

offended party, capable of exciting, inciting or

irritating anyone.

Requisites:

1. provocation must be sufficient

2. it must originate from the offended party

3. must be immediate to the commission of the crime by the

person who is provoked Sufficient – adequate enough to excite a person to commit the wrong and must accordingly be proportionate to its gravity.

Sufficiency depends on:

the act constituting the provocation

the social standing of the person provoked

time and place provocation took place

When it was the defendant who sought the deceased, the challenge to fight by the deceased is NOT sufficient provocation.

. Provocation must be immediate to the act., i.e., to the commission of the crime by the person who is provoked

Why? If there was an interval of time, the conduct of the offended party could not have excited the accused to the commission of the crime, he having had time to regain his reason and to exercise self-control.

NOTE: Threat should not be offensive and positively strong.

Otherwise, it would be an unlawful aggression, which may

give rise to self-defense and thus no longer a mitigating

circumstance.

Par. 5 Vindication of Grave Offense

Requisites:

1. a grave offense done to the one committing the felony, his

spouse, ascendants, descendants, legitimate, natural or

adopted brothers or sisters or relatives by affinity within

the same degrees

2. the felony is committed in immediate vindication of such

grave offense

NOTE: “Immediate” allows for a lapse of time, as long as

the offender is still suffering from the mental agony

brought about by the offense to him. (proximate time, not

just immediately after)

PROVOCATION VINDICATION

Made directly only to the person committing the felony

Grave offense may be also against the offender’s relatives mentioned by law

Cause that brought about the provocation need not be a grave offense

Offended party must have done a grave offense to the offender or his relatives

Necessary that provocation or threat immediately preceded the act. No time interval

May be proximate. Time interval allowed

More lenient in vindication because offense concerns the honor of the person. Such is more worthy of consideration than mere spite against the one giving the provocation or threat.

Vindication of a grave offense and passion and obfuscation can’t be counted separately and independently

Par. 6 Passion or Obfuscation

mitigating: when there are causes naturally producing in a person powerful excitement, he loses his reason and self-control. Thereby dismissing the exercise of his will power.

Requisites:

1. offender acted upon an impulse

2. the impulse must be so powerful that it naturally produced

passion or obfuscation in him

Requisites for Passion & Obfuscation a. The offender acted on impulse powerful enough to produce passion or obfuscation b. That the act was committed not in the spirit of lawlessness or revenge c. The act must come from lawful sentiments

NOTE: Act must have been committed not in the spirit of

lawlessness or revenge; act must come from lawful sentiments.

Act, Which Gave Rise To Passion And Obfuscation:

1. That there be an act, both unlawful and unjust

2. The act be sufficient to produce a condition of mind 3. That the act was proximate to the criminal act, not admitting

of time during which the perpetrator might recover his normal

equanimity

4. The victim must be the one who caused the passion or

obfuscation

NOTE: Passion and obfuscation cannot co-exist with treachery

since this means that the offender had time to ponder his

course of action.

Passion or Obfuscation from Irresistable Force

1. Passion or obfuscation is mitigating while Irresistable force

is exempting

2. Passion or Obfuscation, no physical force needed while

irresistable force requires physical force.

3. Passion and Obfuscation must come from the offender himself

while Irresistable Force must come from 3rd peson

4. Paasion or Obfuscation must come from lawful sentiments

while Irresistable force is unlawful.

PASSION AND OBFUSCATION IRRESITIBLE FORCE

Mitigating Exempting

No physical force needed Requires physical force

From the offender himself Must come from a 3rd person

Must come from lawful sentiments Unlawful

PASSION AND OBFUSCATION PROVOCATION

Produced by an impulse which may be caused by provocation Comes from injured party

Offense, which engenders perturbation of mind, need not be immediate. It is only required that the influence thereof lasts until the crime is committed

Must immediately precede the commission of the crime

Effect is loss of reason and self-control on the part of the offender Same

Par. 7 Surrender and Confession of Guilt

WHEN SURRENDER VOLUNTARY

- must be spontaneous, showing the intent of the accused to

submit himself unconditionally to the authorities, either because:

1. he acknowledges his guilt; or

2. he wishes to save them the trouble and expense necessarily

incurred in his search and capture.

NOTE: If both are present, considered as two independent

mitigating circumstances. Further mitigates penalty

Requisites of voluntary surrender: a) offender not actually arrested b) offender surrendered to a person in authority or the latter’s agent c) surrender was voluntary

Surrender must be spontaneous – shows his interest to surrender unconditionally to the authorities

Spontaneous – emphasizes the idea of inner impulse, acting without external stimulus. The conduct of the accused, not his intention alone, after the commission of the offense, determines the spontaneity of the surrender.

Conduct must indicate a desire to own the responsibility

Not mitigating when warrant already served. Surrender may be considered mitigating if warrant not served or returned unserved because accused can’t be located.

Surrender of person required. Not just of weapon.

Person in authority – one directly vested with jurisdiction, whether as an individual or as a member of some court/government/corporation/board/commission. Barrio captain/chairman included.

Agent of person in authority – person who by direct provision of law, or be election, or by appointment by competent authority is charged

with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority.

RPC does not make distinction among the various moments when surrender may occur.

Surrender must be by reason of the commission of the crime for which defendant is charged

Requisites for plea of guilty a) offender spontaneously confessed his guilt b) confession of guilt was made in open court (competent court) c) confession of guilt was made prior to the presentation of evidence for the prosecution

NOTES:

Plea made after arraignment and after trial has begun does

not entitle accused to the mitigating circumstance

If accused pleaded not guilty, even if during arraignment,

he is entitled to mitigating circumstance as long as he

withdraws his plea of not guilty to the charge before the

fiscal could present his evidence.

Plea to a lesser charge is not a Mitigating Circumstance

because to be such, the plea of guilt must be to the

offense charged.

Plea to the offense charged in the amended info, lesser

than that charged in the original info, is Mitigating

Circumstance.

Par. 8 Physical Defect of Offender

The offender is deaf and dumb, blind or otherwise suffering

from some physical defect, restricting his means of action,

defense or communication with others.

Basis: one suffering from physical defect which restricts him does not have complete freedom of action and therefore, there is diminution of that element of voluntariness.

No distinction between educated and uneducated deaf-mute or blind persons

The physical defect of the offender should restrict his means of action, defense or communication with fellow beings, this has been extended to cover cripples, armless people even stutterers.

The circumstance assumes that with their physical defect, the offenders do not have a complete freedom of action therefore diminishing the element of voluntariness in the commission of a crime

NOTE: The physical defect must relate to the offense committed.

Par. 9 Illness of the Offender

Basis: diminution of intelligence and intent

Requisites:

1. The illness of the offender must diminish the exercise of

his will-power.

2. Such illness should not deprive the offender of

consciousness of his acts.

when the offender completely lost the exercise of will-power, it may be an exempting circumstance

diseased mind, not amounting to insanity, may give place to mitigation

Par. 10 Similar and Analogous Circumstances

Example: 1. Defendant who is 60 years old with failing eyesight is

similar to a case of one over 70 years old.

2. Outraged feeling of an owner of an animal taken for

ransom is analogous to vindication of grave offense.

3. Impulse of jealous feeling, similar to passion and

obfuscation.

4. Voluntary restitution of property, similar to voluntary

surrender.

5. Extreme poverty, similar to incomplete justification based

on state necessity.

NOT analogous: a) killing wrong person b) not resisting arrest not the same as voluntary surrender c) running amuck is not mitigating

MITIGATING CIRCUMSTANCE which arise from: a) moral attributes of the offender

Example: Juan and Tomas killed Pedro. Juan acted w/ PASSION AND OBFUSCATION. Only Juan will be entitled to Mitigating Circumstance

b) private relations with the offended party

Example: Juan stole his brother’s watch. Juan sold it to Pedro, who knew it was stolen. The circumstance of relation arose from private relation of Juan and the brother. Does not mitigate Pedro.

c) other personal cause

Example: Minor, acting with discernment robbed Juan. Pedro, passing by, helped the minor. Circumstance of minority, mitigates liability of minor only.

Shall serve to mitigate the liability of the principals, accomplices and accessories to whom the circumstances are attendant.

Circumstances which are neither exempting nor mitigating: a) mistake in the blow b) mistake in the identity of the victim c) entrapment of the accused d) accused is over 18 years old e) performance of a righteous action Example: Juan saved the lives of 99 people but caused the death of the last person, he is still criminally liable

Introduction - Aggravating Circumstances

AGGRAVATING CIRCUMSTANCES – Those which, if attendant in

the commission of the crime, serve to have the penalty imposed in

its maximum period provided by law for the offense or those that

change the nature of the crime.

BASIS: The greater perversity of the offender manifested in the

commission of the felony as shown by:

1. the motivating power itself, 2. the place of the commission,

3. the means and ways employed

4. the time, or

5. the personal circumstances of the offender, or the offended party.

KINDS OF AGGRAVATING CIRCUMSTANCES:

1. Generic - those which apply to all crimes

2. Specific - those which apply only to specific crimes, (ignominy – for chastity crimes; treachery – for persons crimes)

3. Qualifying - those that change the nature of the crime (evident premeditation – becomes murder)

4. Inherent - which of necessity accompany the commission of the

crime, therefore not considered in increasing the penalty

to be imposed (evident premeditation in theft, estafa)

5. Special - those which arise under special conditions to

increase the penalty of the offense and cannot be offset

by mitigating circumstances

QUALIFYING AGGRAVATING CIRCUMSTANCE

GENERIC AGGRAVATING CIRCUMSTANCE

Gives the proper and exclusive name, places the author thereof in such a situation as to deserve no other penalty than that specifically prescribed by law

Increase penalty to the maximum, without exceeding limit prescribed by law

Can’t be offset by Mitigating Circumstance

May be compensated by Mitigating Circumstance

Must be alleged in the information. Integral part of the offense

Need not be alleged. May be proved over the objection of the defense. Qualifying if not alleged will make it generic

Generic Aggravating Circumstance Distinguished From Qualifying

Aggravating Circumstance

1. Generic Aggravating Circumstances - EFFECT : When not set

off by any mitigating circumstance, Increases the penalty

which should be imposed upon the accused to the maximum

period but without exceeding the limit prescribed by law

Qualifying Aggravating Circumstance - EFFECT: Gives the crime

its proper and exclusive name and places the author of the

crime in such a situation as to deserve no other penalty

than that specially prescribed by law for said crimes

(People v. Bayot, 64Phil269, 273)

2. Generic Aggravating Circumstances - If not alleged in the

information, a qualifying aggravating circumstance will be

considered generic

Qualifying Aggravating Circumstances - To be considered

as such, MUST be alleged in the information.

3. Generic Aggravating Circumstances - May be offset by a

mitigating circumstance.

Qualifying Aggravating Circumstances - Cannot be offset by a

mitigating circumstance.

RULES ON AGGRAVATING CIRCUMSTANCES:

1. Aggravating circumstances shall NOT be appreciated if:

a) They constitute a crime specially punishable by law, or

b) It is included by the law in defining a crime with a penalty

prescribed, and therefore shall not be taken into account

for the purpose of increasing the penalty.

Ex: “That the crime be committed by means of ...fire,...

explosion” (Art. 14, par. 12) is in itself a crime of arson

(Art. 321) or a crime involving destruction (Art. 324). It

is not to be considered to increase the penalty for the

crime of arson or for the crime involving destruction.

2. The same rule shall apply with respect to any aggravating

circumstance inherent in the crime to such a degree that it

must of necessity accompany the commission thereof

(Art.62, par.2)

3. Aggravating circumstances which arise:

a) From the moral attributes of the offender;

b) From his private relations with the offended party; or

c) From any personal cause,

shall only serve to aggravate the liability of the

principals, accomplices and accessories as to whom such

circumstances and a attendant. (Art.62, par. 3)

4. The circumstances which consist :

a) In the material execution of the act, or b) In the means employed to accomplish it,

shall serve to aggravate the liability of only those

persons who had knowledge of them at the time

of the execution of the act or their cooperation

therein. Except when there is proof of conspiracy

in which case the act of one is deemed to be the

act of all, regardless of lack of knowledge of the

facts constituting the circumstance. (Art. 62, par.4)

5. Aggravating circumstances, regardless of its kind, should

be specifically alleged in the information AND proved as

fully as the crime itself in order to increase the penalty.

(Sec. 9, Rule 110, 2000 Rules of Criminal Procedure)

6. When there is more than one qualifying aggravating

circumstance present, one of them will be appreciated as

qualifying aggravating while the others will be considered

as generic aggravating.

ART.14 Aggravating Circumstances ARTICLE 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 nighttime, or in an uninhabited place, or by a band, whenever 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.

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

10. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

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 craft, fraud, or disguise be employed.

15. That 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 an unlawful entry when an entrance is effected by a way not intended for the purpose.

19. That as a means to the commission of a crime a wall, roof, floor, door, or window be broken.

20. That the crime be committed with the aid of persons under fifteen years of age or by means of motor vehicles, airships, or other similar means.

21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission.

Par. 1. That advantage be taken by the offender of his public

position

Requisites:

1. Offender is public officer

2. Public officer must use the influence, prestige, or ascendancy

which his office gives him as means to realize criminal purpose

It is not considered as an aggravating circumstance where taking

advantage of official position is made by law an integral element

of the crime or inherent in the offense,

Ex: malversation (Art. 217), falsification of a document

committed by public officers (Art. 171).

When the public officer did not take advantage of the influence of his

position, this aggravating circumstance is not present

NOTE : Taking advantage of a public position is

also inherent in the case of accessories under

Art. 19, par. 3 (harboring, concealing, or assisting

in the escape of the principal of the crime), and in

crimes committed by public officers (Arts. 204-245).

Essential – Public officer used the influence, prestige or ascendancy which his office gives him as the means by which he realized his purpose.

Failure in official is tantamount to abusing of office

Wearing of uniform is immaterial – what matters is the proof that he indeed took advantage of his position

Par. 2. That the crime be committed in contempt of or with

insult to public authorities

Requisites:

1. That the public authority is engaged in the exercise of his

functions.

2. That he who is thus engaged in the exercise of said functions is

not the person against whom the crime is committed.

3. The offender knows him to be a public authority.

4. His presence has not prevented the offender from committing the

criminal act.

PERSON IN AUTHORITY – public authority, or person who is directly

vested with jurisdiction and has the power to govern and execute the

laws

Ex:

1. Governor

2. Mayor

3. Barangay captain/ chairman

4. Councilors

5. Government agents

6. Chief of Police

NOTE: A teacher or professor of a public or recognized

private school is not a “public authority within the contemplation of this paragraph. While he is a person

in authority under Art. 152, that status is only for

purposes of Art. 148 (direct assault) and Art.

152 (resistance and disobedience)

The crime should not be committed against the public authority

(otherwise it will constitute direct assault under Art.148) This is NOT

applicable when committed in the presence of a mere agent.

AGENT – subordinate public officer charged w/ the maintenance of

public order and protection and security of life and property

Ex: barrio vice lieutenant, barrio councilman

Par. 3. That the act be committed:

(1) with insult or in disregard of the respect due the

offended party on account of his

(a)rank,

(b) age, or

(c) sex or

(2) that it be committed in the dwelling of the offended

party, if the latter has not given provocation

Rules regarding par 3(1):

1. These circumstances shall only be considered as one aggravating

circumstance.

2. Rank, age, sex may be taken into account only in crimes against

persons or honor, they cannot be invoked in crimes against property.

3. It must be shown that in the commission of the

crime the offender deliberately intended to offend or insult the sex,

age and rank of the offended party.

RANK – The designation or title of distinction used to fix the relative

position of the offended party in reference to others (There must

be a difference in the social condition of the offender and the

offended party). *refers to a high social position or standing by which to determine one’s pay and emoluments in any scale of comparison within a position

AGE – may refer to old age or the tender age of the victim.

SEX– refers to the female sex, not to the male sex.

The AC of disregard of rank, age, or sex is not applicable in the

following cases:

1. When the offender acted with passion and obfuscation.

2. When there exists a relationship between the offended party and the offender.

3. When the condition of being a woman is indispensable in the

commission of the crime.

(Ex: in parricide, abduction, seduction and rape)

Requisite of disregard to rank, age, or sex

1. Crimes must be against the victim’s person or his honor 2. There is deliberate intent to offend or insult the respect due to the

victim’s rank, age, or sex

People vs. Lapaz, March 31, 1989

Disregard of sex and age are not absorbed in treachery

because treachery refers to the manner of the commission

of the crime, while disregard of sex and age pertains

to the relationship of the victim.

DWELLING – must be a building or structure exclusively used for rest

and comfort (combination of house and store not included), may be

temporary as in the case of guests in a house or bedspacers. It

includes dependencies, the foot of the staircase and the enclosure

under the house *basis for this is the sanctity of privacy the law accords to human abode

Elements of the aggravating circumstance of dwelling 1. Crime occurred in the dwelling of the victim 2. No provocation on the part of the victim

When dwelling may and may not be considered

When it may be considered When it may not be considered

although the offender fired the shot from outside the house, as long as his victim was inside

even if the killing took place outside the dwelling, so long as the commission began inside the dwelling

when adultery is committed in the dwelling of the husband, even if it is also the dwelling of the wife, it is still aggravating because she and her paramour committed a grave offense to the head of the house

In robbery with violence against persons, robbery with homicide, abduction, or illegal detention

If the offended party has given provocation

If both the offender and the offended party are occupants of the same dwelling

In robbery with force upon things, it is inherent

NOTES:

The aggravating circumstance of dwelling requires that

the crime be wholly or partly committed therein or in

any integral part thereof.

Dwelling does not mean the permanent residence or

domicile of the offended party or that he must be the

owner thereof. He must, however, be actually living or

dwelling therein even for a temporary duration or purpose.

It is not necessary that the accused should have actually

entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own

house, although the assailant may have devised means to

perpetrate the assault from without.

What aggravates the commission of the crime in one’s dwelling:

1. The abuse of confidence which the offended party reposed in

the offender by opening the door to him; or

2. The violation of the sanctity of the home by trespassing therein

with violence or against the will of the owner.

Meaning of provocation in the aggravating circumstance of dwelling:

The provocation must be:

1. Given by the owner of the dwelling,

2. Sufficient, and

3. Immediate to the commission of the crime.

NOTE: If all these conditions are present, the offended

party is deemed to have given the provocation, and the

fact that the crime is committed in the dwelling of the

offended party is NOT an aggravating circumstance.

REASON: When it is the offended party who has provoked

the incident, he loses his right to the respect and

consideration due him in his own house

Dwelling is not aggravating in the following cases:

1. When both the offender and the offended party are occupants of

the same house, and this is true even if offender is a servant in the

house.

exception: In case of adultery in the conjugal dwelling, the

same is aggravating. However, if the paramour also dwells in the

conjugal dwelling, the applicable aggravating circumstance is abuse

of confidence.

2. When robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent.

However, dwelling is aggravating in robbery with violence against or

intimidation of persons because this class of robbery can be

committed without the necessity of trespassing the sanctity of the

offended party’s house.

3. In the crime needed to see this picture. dwelling, it is inherent or

included by law in defining the crime.

4. When the owner of the dwelling gave sufficient and immediate

provocation.

There must exist a close relation between the provocation made by

the victim and the commission of the crime by the accused.

5. The victim is not a dweller of the house.

Par. 4. That the act be committed with:

(1) abuse of confidence or

(2) obvious ungratefulness

Requisites of Abuse of Confidence Requisite of Obvious Ungratefulness

a) Offended party has trusted the offender

b) Offender abused such trust

c) Abuse of confidence facilitated the commission of the crime

a) ungratefulness must be obvious, that is, there must be something which the offender should owe the victim a debt of gratitude for

Note: robbery or theft committed by a visitor in the house of the offended party is aggravated by obvious ungratefulness

There are two aggravating circumstances present under par.4 which

must be independently appreciated if present in the same case

While one may be related to the other in the factual situation in the

case, they cannot be lumped together.

Abuse of confidence requires a special confidential relationship

between the offender and the victim, while this is not required for

there to be obvious ungratefulness

Requisites Of Abuse Of Confidence:

1. That the offended party had trusted the offender.

2. That the offender abused such trust by committing a crime

against the offended party.

3. That the abuse of confidence facilitated the commission of the

crime.

NOTE: Abuse of confidence is inherent in malversation

(Art. 217), qualified theft (Art. 310), estafa by

conversion or misappropriation (Art. 315), and qualified

seduction (Art. 337).

Requisites of obvious ungratefulness:

1. That the offended party had trusted the offender;

2. That the offender abused such trust by committing a crime

against the offended party.

3. That the act be committed with obvious ungratefulness.

NOTE: The ungratefulness contemplated by par. 4 must be

such clear and manifest ingratitude on the part of

the accused.

Par. 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.

Actual performance of duties is not necessary when crime is

committed in the palace or in the presence of the Chief Executive

Requisites Regarding Public Authorities:

1. crime occurred in the public office

2. public authorities are actually performing their public duties

A polling precinct is a public office during election day

Nature of public office should be taken into account, like a police station which is on duty 24 hrs. a day

the offender must have intention to commit a crime when he entered the

place

Requisites (Place Dedicated To Religious Worship):

1. The crime occurred in a place dedicated to the worship of God

regardless of religion

2. The offender must have decided to commit the crime when he

entered the place of worship

Except for the third which requires that official functions are being

performed at the time of the commission of the crime, the other

places mentioned are aggravating per se even if no official duties or

acts of religious worship are being conducted there.

Cemeteries, however respectable they may be, are not considered as

place dedicated to the worship of God.

When Paragraph 2 and 5 of Article 14 are applicable

Committed in the presence of the

Chief Executive, in the Presidential

Palace or a place of worship(Par. 5,

Art. 14)

Committed in contempt of Public

Authority

(Par. 2, Art 14)

Public authorities are performing of

their duties when the crime is

committed Same

When crime is committed in the

public office, the officer must be

performing his duties, except in the

Presidential Palace

Outside the office (still performing

duty)

Public authority may be the offended

party

Public authority is not be the

offended party

Par. 6. That the crime be committed

(1) in the nighttime, or

(2) in an uninhabited place, or

(3) by a band,

whenever such circumstance may facilitate the commission

of the offense

NOTE: When present in the same case and their

element are distinctly palpable and can subsist

independently, they shall be considered separately.

When nighttime, uninhabited place or band aggravating:

1. When it facilitated the commission of the crime; or

2. When especially sought for by the offender to insure the

commission of the crime or for the purpose of impunity; or

3. When the offender took advantage thereof for the purpose of

impunity

*Impunity – means to prevent the accused’s being recognized or to secure himself against detection or punishment

NIGHTTIME (obscuridad) – that period of darkness beginning at the

end of dusk and ending at dawn.

Commission of the crime must begin and be accomplished in the

nighttime. When the place of the crime is illuminated by light,

nighttime is not aggravating. It is not considered aggravating when the crime began at daytime.

Nighttime is not especially sought for when the notion to commit the

crime was conceived of shortly before commission or when crime

was committed at night upon a casual encounter

However, nighttime need not be specifically sought for when

(1) it facilitated the commission of the offense, or

(2) the offender took advantage of the same to commit the crime

A bare statement that crime was committed at night is insufficient.

The information must allege that nighttime was sought for or taken

advantage of, or that it facilitated the crime

GENERAL RULE: Nighttime is absorbed in treachery.

EXCEPTION: Where both the treacherous mode of attack and

nocturnity were deliberately decided upon in the same case,

they can be considered separately if such circumstances

have different factual bases. Thus:

In People vs. Berdida, et. al. (June 30, 1966),

nighttime was considered since it was purposely sought,

and treachery was further appreciated because the

victim’s hands and arms were tied together before he

was beaten up by the accused.

In People vs. Ong, et. al. (Jan. 30, 1975), there was

treachery as the victim was stabbed while lying face

up and defenseless, and nighttime was considered upon

proof that it facilitated the commission of the offense

and was taken advantage of by the accused.

UNINHABITED PLACE (despoblado) – one where there are no houses

at all, a place at a considerable distance from town, where the

houses are scattered at a great distance from each other

Solitude must be sought to better attain the criminal purpose

What should be considered here is whether in the place of the

commission of the offense, there was a reasonable possibility of the

victim receiving some help.

Requisites:

1. The place facilitated the commission or omission of the crime 2. Deliberately sought and not incidental to the commission or omission

of the crime 3. Taken advantage of for the purpose of impunity

BAND (en cuadrilla) – whenever there are more than 3 armed

malefactors that shall have acted together in the commission of an

offense

NOTE: There must be four or more armed men

If one of the four-armed malefactors is a principal by inducement,

they do not form a band because it is undoubtedly connoted that he

had no direct participation.

“By a band” is aggravating in crimes against property or against

persons or in the crime of illegal detention or treason but does not

apply to crimes against chastity

“By a band” is inherent in brigandage

* in robbery committed in band and brigandage

This aggravating circumstance is absorbed in the circumstance of

abuse of superior strength

It is not considered in the crime of rape

It has been applied in treason and in robbery with homicide

Requisites: 1. Facilitated the commission of the crime 2. Deliberately sought 3. Taken advantage of for the purposes of impunity 4. There must be four or more armed men

Par. 7. That the crime be committed on the occasion of a

conflagration, shipwreck, earthquake, epidemic or

other calamity or misfortune.

Requisites:

1. The crime was committed when there was a calamity or

misfortune

2. The offender took advantage of the state of confusion or chaotic

condition from such misfortune *Basis: Commission of the crime adds to the suffering by taking advantage of the misfortune.

based on time

offender must take advantage of the calamity or misfortune

If the offended was PROVOKED by the offended party during the

calamity/misfortune, this aggravating circumstance may not be

taken into consideration.

Distinction between Paragraphs 7 and 12 of Article 14

Committed during a calamity or misfortune

Committed with the use of wasteful means

Crime is committed DURING any of the calamities

Crime is committed BY using fire, inundation, explosion or other wasteful means

Par. 8.That the crime be committed with the aid of

(1) armed men or

(2) persons who insure or afford impunity

Requisites:

1. That armed men or persons took part in the commission of the

crime, directly or indirectly.

2. That the accused availed himself of their aid or relied upon them

when the crime was committed

NOTE: This aggravating circumstance requires that the armed

men are accomplices who take part in a minor capacity

directly or indirectly, and not when they were merely

present at the crime scene. Neither should they constitute

a band, for then the proper aggravating circumstance

would be cuadrilla.

When This Aggravating Circumstance Shall Not Be Considered:

1. When both the attacking party and the party attacked were

equally armed.

2. When the accused as well as those who cooperated with him in

the commission of the crime acted under the same plan and for the

same purpose.

3. When the others were only “casually present” and the offender did

not avail himself of any of their aid or when he did not knowingly

count upon their assistance in the commission of the crime

WITH THE AID OF ARMED MEN BY A BAND

Present even if one of the offenders merely relied on their aid. Actual aid is not necessary

Requires more than 3 armed malefactors who all acted together in the commission of an offense

If there are four armed men, aid of armed men is absorbed in

employment of a band. If there are three armed men or less, aid of

armed men may be the aggravating circumstance.

“Aid of armed men” includes “armed women.”

Par. 9. That the accused is a recidivist

RECIDIVIST – one who at the time of his trial for one crime, shall

have been previously convicted by final judgment of another crime

embraced in the same title of the RPC.

Basis: Greater perversity of the offender as shown by his inclination to commit crimes

Requisites:

1. That the offender is on trial for an offense;

2. That he was previously convicted by final judgment of another

crime;

3. That both the first and the second offenses are embraced in the

same title of the Code;

4. That the offender is convicted of the new offense.

MEANING OF “at the time of his trial for one crime.”

It is employed in its general sense, including the rendering of the

judgment. It is meant to include everything that is done in the

course of the trial, from arraignment until after sentence is

announced by the judge in open court.

What is controlling is the TIME OF THE TRIAL,

not the time of the commission of the offense.

When does judgment become final? (Rules of Court)

1. after the lapse of a period for perfecting an appeal 2. when the sentence has been partially or totally satisfied or served 3. defendant has expressly waived in writing his right to appeal 4. the accused has applied for probation

GENERAL RULE: To prove recidivism, it is necessary to allege the

same in the information and to attach thereto certified copy of the

sentences rendered against the accused.

Exception: If the accused does not object and when he admits in his

confession and on the witness stand.

Recidivism must be taken into account no matter how many years

have intervened between the first and second felonies.

Amnesty extinguishes the penalty and its effects.

However, pardon does not obliterate the fact that the accused was a

recidivist. Thus, even if the accused was granted a pardon for the

first offense but he commits another felony embraced in the same

title of the Code, the first conviction is still counted to make him a

recidivist

Being an ordinary aggravating circumstance, recidivism affects only

the periods of a penalty, except in prostitution and vagrancy (Art.

202) and gambling (PD 1602) wherein recidivism increases the

penalties by degrees. No other generic aggravating circumstance

produces this effect

In recidivism it is sufficient that the succeeding offense be

committed after the commission of the preceding offense provided

that at the time of his trial for the second offense, the accused

had already been convicted of the first offense.

If both offenses were committed on the same date, they shall be

considered as only one, hence, they cannot be separately counted in

order to constitute recidivism. Also, judgments of convicted handed

down on the same day shall be considered as only one conviction.

REASON: Because the Code requires that to be considered as a

separate convictions, at the time of his trial for one crime the

accused shall have been previously convicted by final judgment of

the other.

Par. 10. That the offender has been previously punished for

an offense to which the law attaches an equal or greater

penalty or for two or more crimes to which it attaches a

lighter penalty.

Reiteracion or Habituality – it is essential that the offender be previously punished; that is, he has served sentence.

Par. 10 speaks of penalty attached to the offense, not the penalty actually imposed

Requisites Of Reiteracion Or Habituality:

1. That the accused is on trial for an offense;

2. That he previously served sentence for another offense to which the law attaches an

a) Equal or

b) Greater penalty, or

c) For two or more crimes to which it attaches a lighter penalty

than that for the new offense; and

3. That he is convicted of the new offense

REITERACION RECIDIVISM

Necessary that offender shall have served out his sentence for the first sentence

Enough that final judgment has been rendered in the first offense

Previous and subsequent offenses must not be embraced in the same title of the Code Same title

Not always an aggravating circumstance Always aggravating

Habituality vs Recidivism

1. As To The First offense

Habituality - It is necessary that the offender shall have served out

his sentence for the first offense.

Recidivism - It is enough that a final judgment has been rendered in

the first offense.

2. As to the kind of offenses involved

Habituality - The previous and subsequent offenses must not be

embraced in the same title of the code.

Recidivism - Requires that the offenses be included in the same title

of the code.

THE FOUR FORMS OF REPETITION ARE:

1. Recidivism (par. 9, Art. 14) – Where a person, on separate

occasions, is convicted of two offenses embraced in the same title in

the RPC. This is a generic aggravating circumstance.

2. Reiteracion or Habituality (par. 10, Art. 14) – Where the offender

has been previously punished for an offense to which the law

attaches an equal or greater penalty or for two crimes to which it

attaches a lighter penalty. This is a generic aggravating

circumstance.

3. Multi-recidivism or Habitual delinquency (Art. 62, par, 5) – Where a person within a period of ten years from the date of his release or

last conviction of the crimes of serious or less serious physical

injuries, robbery, theft, estafa or falsification, is found guilty of the

said crimes a third time or oftener. This is an extraordinary

aggravating circumstance.

4. Quasi-recidivism (Art. 160) – Where a person commits felony

before beginning to serve or while serving sentence on a previous

conviction for a felony. This is a special aggravating circumstance.

Since reiteracion provides that the accused has duly served the

sentence for his previous conviction/s, or is legally considered to

have done so, quasi-recidivism cannot at the same time constitute

reiteracion, hence this aggravating circumstance cannot apply to a

quasi-recidivist.

If the same set of facts constitutes recidivism and reiteracion, the

liability of the accused should be aggravated by recidivism which can

easily be proven.

Par. 11. That the crime be committed in consideration of

price, reward or promise.

Requisites:

1. There are at least 2 principals:

- The principal by inducement (one who offers)

- The principal by direct participation (accepts)

2. The price, reward, or promise should be previous to and in

consideration of the commission of the criminal act

NOTE: The circumstance is applicable to both principals.

It affects the person who received the price / reward as

well as the person who gave it.

If without previous promise it was given voluntarily after the crime

had been committed as an expression of his appreciation for the

sympathy and aid shown by the other accused, it should not be

taken into consideration for the purpose of increasing the penalty.

The price, reward or promise need not consist of or refer to material

things or that the same were actually delivered, it being sufficient

that the offer made by the principal by inducement be accepted by

the principal by direct participation before the commission of the

offense.

The inducement must be the primary consideration for the

commission of the crime.

Par. 12. That the crime be committed by means of inundation,

fire, explosion, stranding of a vessel or intentional damage

thereto, derailment of a locomotive, or by use of any artifice

involving great waste and ruin

The circumstances under this paragraph will only be considered as

aggravating if and when they are used by the offender as a means to

accomplish a criminal purpose (requisite).

When another aggravating circumstance already qualifies the crime,

any of these aggravating circumstances shall be considered as

generic aggravating circumstance only

When used as a means to kill another person, the crime is qualified

to murder.

Par. 13. That the act be committed with evident

premeditation

Requisites:

The prosecution must prove –

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his

determination; and

3. A sufficient lapse of time between the determination and

execution, to allow him to reflect upon the consequences of his act

and to allow his conscience to overcome the resolution of his will.

Essence of premeditation: The execution of the criminal act must be

preceded by cool thought and reflection upon the resolution to carry

out the criminal intent during the space of time sufficient to arrive at

a calm judgment.

Conspiracy generally presupposes premeditation

To establish evident premeditation, it must be shown that there was

a period sufficient to afford full opportunity for meditation and

reflection, a time adequate to allow the conscience to overcome the

resolution of the will, as well as outward acts showing the intent to

kill. It must be shown that the offender had sufficient time to reflect

upon the consequences of his act but still persisted in his

determination to commit the crime. (PEOPLE vs. SILVA, et. al., GR

No. 140871, August 8, 2002)

Premeditation is absorbed by reward or promise.

When the victim is different from that intended, premeditation is not

aggravating. However, if the offender premeditated on the killing of

any person, it is proper to consider against the offender the

aggravating circumstance of premeditation, because whoever is

killed by him is contemplated in his premeditation.

The premeditation must be based upon external facts, and must be evident, not merely suspected indicating deliberate planning

Evident premeditation is inherent in robbery, adultery, theft, estafa, falsification, and etc.

Par. 14. That (1) craft,

(2) fraud, or

(3) disguise be employed.

Requisite

The offender must have actually used craft, fraud, or disguise to

facilitate the commission of the crime.

CRAFT (astucia) – involved the use of intellectual trickery or

cunning on the part of the accused. A chicanery resorted to

by the accused to aid in the execution of his criminal design.

It is employed as a scheme in the execution of the crime (e.g. accused pretended to be members of the constabulary, accused in order to perpetrate rape, used chocolates containing drugs)

FRAUD (fraude) – insidious words or machinations used to induce

the victim to act in a manner which would enable the offender

to carry out his design

as distinguished from craft which involves acts done in order not to arouse the suspicion of the victim, fraud involves a direct inducement through entrapping or beguiling language or machinations

Craft and fraud may be absorbed in treachery if they have been

deliberately adopted as the means, methods or forms for the

treacherous strategy, or they may co-exist independently where

they are adopted for a different purpose in the commission

of the crime.

Ex:

In People vs. San Pedro (Jan. 22, 1980),

where the accused pretended to hire the driver in order to

get his vehicle, it was held that there was craft directed

to the theft of the vehicle, separate from the means

subsequently used to treacherously kill the defenseless

driver.

In People vs. Masilang (July 11, 1986)

there was also craft where after hitching a ride, the accused

requested the driver to take them to a place to visit somebody,

when in fact they had already planned to kill the driver.

DISGUISE (disfraz) – resorting to any device to conceal identity

The test of disguise is whether the device or contrivance

resorted to by the offender was intended to or did make

identification more difficult, such as the use of a mask or

false hair or beard.

The use of an assumed name in the publication of a libel

constitutes disguise.

Distinction between Craft, Fraud, and Disguise

Craft Fraud Disguise

Involves the use of intellectual trickery and cunning to arouse suspicion of the victim

Involves the use of direct inducement by insidious words or machinations

Involves the use of devise to conceal identity

Par. 15. That (1) advantage be taken of superior strength, or

(2) means be employed to weaken the defense.

Par. 15 contemplates two aggravating circumstances, either of

which qualifies a killing to murder.

MEANING OF “advantage be taken”:

To deliberately use excessiveforce that is out of proportion to the

means for self-defense available to the person attacked. (PEOPLE vs.

LOBRIGAS, et. al., GR No. 147649, December 17, 2002)

Superiority may arise from aggressor’s sex, weapon or number as compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim).

Requisites: 1. Means were purposely sought to weaken the defense of the victim to

resist the assault 2. The means used must not totally eliminate possible defense of the

victim, otherwise it will fall under treachery

No Advantage Of Superior Strength In The Following:

1. One who attacks another with passion and obfuscation does

not take advantage of his superior strength.

2. When a quarrel arose unexpectedly and the fatal blow was

struck at a time when the aggressor and his victim were

engaged against each other as man to man.

TEST for abuse of superior strength: the relative strength of the

offender and his victim and whether or not he took advantage of his greater strength.

When there are several offenders participating in the crime, they

must ALL be principals by direct participation and their attack

against the victim must be concerted and intended to be so.

Abuse of superior strength is inherent in the crime of parricide where

the husband kills the wife. It is generally accepted that the husband

is physically stronger than the wife.

Abuse of superior strength is also present when the offender uses a

weapon which is out of proportion to the defense available to the

offended party.

NOTE: Abuse of superior strength absorbs cuadrilla (“band”).

MEANING OF “Means employed to weaken defense” - the

offender employs means that materially weaken the resisting power

of the offended party.

Ex:

1. Where one, struggling with another, suddenly throws a

cloak over the head of his opponent and while in this

situation he wounds or kills him.

2. One who, while fighting with another, suddenly casts sand

or dirt upon the latter eyes and then wounds or kills him.

3. When the offender, who had the intention to kill the

victim, made the deceased intoxicated, thereby materially

weakening the latter’s resisting power.

NOTE: This circumstance is applicable only to crimes against

persons, and sometimes against person and property, such as

robbery with physical injuries or homicide.

Par. 16. That the act be committed with treachery (alevosia)

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.

Requisites:

1. That at the time of the attack, the victim was not in a position to defend himself; and

2. That the offender consciously adopted the particular means,

method or form of attack employed by him.

TEST: It is not only the relative position of the parties but, more

specifically, whether or not the victim was forewarned or afforded

the opportunity to make a defense or to ward off the attack.

Examples: victim asleep, half-awake or just awakened, victim grappling or being held, stacks from behind

But treachery may exist even if attack is face-to-face – as long as victim was not given any chance to prepare defense

* does not exist if the accused gave the deceased chance to prepare or there was warning given or that it was preceded by a heated argument * there is always treachery in the killing of child * generally characterized by the deliberate and sudden and unexpected attack of the victim from behind, without any warning and without giving the victim an opportunity to defend himself

TREACHERY

ABUSE OF SUPERIOR STRENGTH

MEANS EMPLOYED TO WEAKEN

DEFENSE

Means, methods or forms are employed by the offender to make it impossible or hard for the offended party to put any sort of resistance

Offender does not employ means, methods or forms of attack, he only takes advantage of his superior strength

Means are employed but it only materially weakens the resisting power of the offended party

Rules Regarding Treachery:

1. Applicable only to crimes against persons.

2. Means, methods or forms need not insure accomplishment of

crime.

3. The mode of attack must be consciously adopted.

Treachery is taken into account even if the crime against the person

is complexed with another felony involving a different classification

in the Code. Accordingly, in the special complex crime of robbery

with homicide, treachery but can be appreciated insofar as the killing

is concerned.

The suddenness of attack in itself does not constitute treachery,

even if the purpose was to kill, so long as the decision was made all

of a sudden and the victim’s helpless position was accidental.

Treachery applies in the killing of a child even if the manner of attack

is not shown.

Treachery must be convincing evidence proved by clear and

convincing evidence.

*can’t be considered when there is no evidence that the accused, prior to the moment of the killing, resolved to commit to crime, or there is no proof that the death of the victim was the result of meditation, calculation or reflection.

Treachery is considered against all the offenders when there is

conspiracy.

WHEN MUST TREACHERY BE PRESENT: 1. When the aggression is continuous, treachery must be present

in the beginning of the assault. (PEOPLE vs. MANALAD, GR

No. 128593, August 14, 2002)

Thus, even if the deceased was shot while he was lying wounded

on the ground, it appearing that the firing of the shot was

a mere continuation of the assault in which the deceased was

wounded, with no appreciable time intervening between the

delivery of the blows and the firing of the shot, it cannot

be said that the crime was attended by treachery.

2. When the assault was not continuous, in that there was

interruption, it is sufficient that treachery was present

at the moment the fatal blow was given.

Hence, even though in the inception of the aggression

which ended in the death of the deceased, treachery

was not present, if there was a break in the continuity of

the aggression and at the time of the fatal wound was

inflicted on the deceased he was defenseless, the

circumstance of treachery must be taken into account.

Treachery Should Be Considered Even If:

1. The victim was not predetermined but there was a generic

intent to treacherously kill any first two persons belonging

to a class. (The same rule obtains for evident premeditation).

2. There was aberratio ictus and the bullet hit a person different

from that intended. (The rule is different in evident

premeditation).

3. There was error in personae, hence the victim was not the

one intended by the accused. (A different rule is applied in

evident premeditation).

REASON FOR THE RULE: When there is treachery, it is impossible

for either the intended victim or the actual victim to defend

himself against the aggression.

TREACHERY ABSORBS:

1. Craft

2. Abuse of superior strength

3. Employing means to weaken the defense

4. Cuadrilla (“band”)

5. Aid of armed men

6. Nighttime

Par. 17. That means be employed or circumstances brought

about which add ignominy to the natural effects of the act

IGNOMINY – is a circumstance pertaining to the moral order, which

adds disgrace and obloquy to the material injury caused by the

crime.

MEANING OF “which add ignominy to the natural effects thereof”:

The means employed or the circumstances brought about must

tend to make the effects of the crime more humiliating to victim or

to put the offended party to shame, or add to his moral suffering.

Thus it is incorrect to appreciate ignominy where the victim was

already dead when his body was dismembered, for such act may not

be considered to have added to the victim’s moral suffering or

humiliation. (People vs. Carmina, G.R. No. 81404, January 28, 1991)

Applicable to crimes against chastity, less serious physical injuries,

light or grave coercion, and murder.

Requisite: 1. Crime must be against chastity, less serious physical injuries, light or

grave coercion, and murder 2. The circumstance made the crime more humiliating and shameful for

the victim

Par. 18. That the crime be committed after an unlawful entry.

UNLAWFUL ENTRY - when an entrance is effected by a way

not intended for the purpose.

NOTE: Unlawful entry must be a means to effect entrance and

not for escape.

REASON FOR AGGRAVATION: One who acts, not respecting the walls

erected by men to guard their property and provide for their

personal safety, shows a greater perversity, a greater audacity;

hence, the law punishes him with more severity.

Example: Rapist gains entrance thru the window

Inherent in: Trespass to dwelling, robbery with force upon things, and robbery with violence or intimidation against persons.

Par. 19. That as a means to the commission of a crime, a

wall, roof, floor, door, or window be broken.

Applicable only if such acts were done by the offender to effect

ENTRANCE. If the wall, etc., is broken in order to get out of the

place, it is not an aggravating circumstance.

Requisite: 1. A wall, roof, window, or door was broken 2. They were broken to effect entrance

It is NOT necessary that the offender should have entered the

building Therefore, If the offender broke a window to enable

himself to reach a purse with money on the table near that

window, which he took while his body was outside of the building,

the crime of theft was attended by this aggravating circumstance.

NOTE: Breaking in is lawful in the following instances:

1. An officer, in order to make an arrest, may break open a door

or window of any building in which the person to be arrested

is or is reasonably believed to be;

2. An officer, if refused admittance, may break open any door

or window to execute the search warrant or liberate himself,

3. Replevin, Section 4, Rule 60 of the Rules of Court

Par. 20. That the crime be committed

(1) with the aid of persons under fifteen (15) years of age, or

(2) by means of motor vehicles, airships, or other similar

means.

TWO DIFFERENT CIRCUMSTANCES GROUPED IN THIS PARAGRAPH:

1. With the aid of persons under fifteen years of age:

Intends to repress, so far as possible, the frequent

practice resorted to by professional criminals to avail

themselves of minors taking advantage of their

irresponsibility.

2. By means of motor vehicles, airships, or other similar means:

Intended to counteract the great facilities found by

modern criminals in said means to commit crime and flee

and abscond once the same is committed.

Use of motor vehicle is aggravating where the accused

purposely and deliberately used the motor vehicle in

going to the place of the crime, in carrying away the

effects thereof, and in facilitating their escape.

MEANING OF “or other similar means” Should be understood

as referring to motorized vehicles or other efficient means

of transportation similar to automobile or airplane.

Par. 21. That the wrong done in the commission of the crime

be deliberately augmented by causing other wrong

not necessary for its commission

CRUELTY – there is cruelty when the culprit enjoys and delights in

making his victim suffer slowly and gradually, causing unnecessary

physical pain in the consummation of the criminal act.

Requisites:

1. That the injury caused be deliberately increased by causing other

wrong;

2. That the other wrong be unnecessary for the execution of the

purpose of the offender.

Cruelty is not inherent in crimes against persons.

In order for it to be appreciated, there must be positive proof that

the wounds found on the body of the victim were inflicted while he

was still alive in order unnecessarily to prolong physical suffering.

Cruelty cannot be presumed *nor merely inferred from the body of the deceased. Has to be proven.

If the victim was already dead when the acts of mutilation were

being performed, this would also qualify the killing to murder due to

outraging of his corpse.

IGNOMINY CRUELTY

Moral suffering – subjected to humiliation Physical suffering

Ignominy involves moral suffering. Cruelty refers to physical suffering.

Unlike mitigating circumstances (par. 10, Art. 13), there is NO

provision for aggravating circumstances of a similar or analogous

character.

ART.15 Alternative Circumstances

Concept of Alternative Circumstances

ARTICLE 15. Their Concept. — Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. They are the relationship, intoxication and the degree of instruction and education of the offender.

The alternative circumstance of relationship shall be taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.

The intoxication of the offender shall be taken into consideration as a mitigating circumstance when the offender has committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit

said felony; but when the intoxication is habitual or intentional it shall be considered as an aggravating circumstance.

ALTERNATIVE CIRCUMSTANCES – Those which must be taken

into consideration as aggravating or mitigating according to the

nature and effects of the crime and the other conditions attending its

commission.

BASIS:

The nature and effects of the crime and the other conditions

attending its commission.

THE ALTERNATIVE CIRCUMSTANCES ARE:

1. Relationship;

2. Intoxication; and

3. Degree of instruction and education of the offender.

RELATIONSHIP

The alternative circumstance of relationship shall be taken into

consideration when the offended party is the – 1. Spouse,

2. Ascendant,

3. Descendant,

4. Legitimate, natural, or adopted brother or sister, or

5. Relative by affinity in the same degree of the offender.

Mitigating Circumstance Aggravating Circumstance

In crimes against property (robbery,

usurpation, fraudulent insolvency,

arson)

In crimes against persons – in

cases where the offender, or when

the offender and the offended party

are relatives of the same level, as

killing a brother, adopted brother or

half-brother.

Always aggravating in crimes

against chastity.

Exception: Art 332 of CC – no

criminal liability, civil liability only for

the crimes of theft, swindling or

malicious mischief committed or

caused mutually by spouses,

ascendants, descendants or

relatives by affinity (also brothers,

sisters, brothers-in-law or sisters-in-

law if living together). It becomes an

EXEMPTING circumstance.

Other Relatives Included (By Analogy):

1. The relationship of stepfather or stepmother and stepson or

stepdaughter.

REASON: It is the duty of the step-parents to bestow upon their stepchildren a mother’s/father’s affection,

care and protection.

2. The relationship of adopted parent and adopted child.

NOTE: But the relationship of uncle and niece is not covered by

any of the relationship mentioned.

When Relationship Mitigating And When Aggravating:

1. As a rule, relationship is mitigating in crimes against

property, by analogy to the provisions of Art. 332.

Thus, relationship is mitigating in the crimes of robbery

(Arts. 294-302), usurpation (Art. 312), fraudulent insolvency

(Art. 314) and arson (Arts. 321-322, 325-326).

2. In crimes against persons –

a) It is aggravating where the offended party is a relative of

(1). a higher degree than the offender, or

(2). when the offender and the offended party are relatives

of the same level (e.g. brothers)

b) But when it comes to physical injuries:

(1). It is aggravating when the crime involves serious

physical injuries (Art.263), even if the offended

party is a descendant of the offender. But the serious

physical injuries must not be inflicted by a parent upon

his child by excessive chastisement.

(2). It is mitigating when the offense committed is less

serious physical injuries or slight physical injuries,

if the offended party is a relative of a lower degree.

(3). It is aggravating if the offended party is a relative

of a higher degree of the offender.

c) When the crime is homicide or murder, relationship is

aggravating even if the victim of the crime is a relative

of a lower degree.

d) In rape, relationship is aggravating where a stepfather

raped his stepdaughter or in a case where a father raped his

own daughter.

3. In crimes against chastity, like acts of lasciviousness

(Art. 336), relationship is always aggravating, regardless of

whether the offender is a relative of a higher or lower degree

of the offended party. When the qualification given to the

crime is derived from the relationship between the offender

and the offended party, it is neither mitigating nor

aggravating, because it is inseparable from and inherent in the

offense. (e.g. parricide, adultery and concubinage).

INTOXICATION - When Intoxication Mitigating And When

Aggravating:

1. Mitigating –

a. If intoxication is not habitual, or

b. If intoxication is not subsequent to the plan to commit

a felony.

2. Aggravating –

a. If intoxication is habitual, or b. If it is intentional (subsequent to the plan to commit

a felony).

MITIGATING CIRCUMSTANCE AGGRAVATING CIRCUMSTANCE

a) if intoxication is not habitual

b) if intoxication is not subsequent to the plan to commit a felony

a) if intoxication is habitual – such habit must be actual and confirmed

b) if its intentional (subsequent to the plan to commit a felony)

To Be Entitled To The Mitigating Circumstance Of Intoxication,

It Must Be Shown:

1. That at the time of the commission of the criminal act, the

accused has taken such quantity of alcoholic drinks as to

blur his reason and deprive him of a certain degree of

control, and

2. That such intoxication is not habitual, or subsequent to the

plan to commit the felony.

To be mitigating, the accused’s state of intoxication must be

proved. Once intoxication is established by satisfactory

evidence, in the absence of proof to the contrary, it is

presumed to be non-habitual or unintentional.

INSTRUCTION OR EDUCATION

As an alternative circumstance it does not refer only to literacy

but more to the level of intelligence of the accused.

Refers to the lack or presence of sufficient intelligence and

knowledge of the full significance of one’s acts.

Low degree of instruction and education or lack of it is

generally mitigating. High degree of instruction and education

is aggravating, when the offender took advantage of his learning

in committing the crime.

MITIGATING CIRCUMSTANCE AGGRAVATING CIRCUMSTANCE

Low degree of instruction education or the lack of it. Because he does not fully realize the consequences of his criminal act. Not just mere illiteracy but lack of intelligence.

High degree of instruction and education – offender avails himself of his learning in committing the offense.

GENERAL RULE: Lack of sufficient education is mitigating

EXCEPTIONS:

1. Crimes against property (e.g. arson, estafa, theft, robbery)

2. Crimes against chastity, and

3. Treason – because love of country should be a natural feeling of

every citizen, however unlettered or uncultured he may be.

ART.16 Who Are Criminally Liable ARTICLE 16. Who are Criminally Liable. — The following are criminally liable for grave and less grave felonies: 1. Principals. 2. Accomplices. 3. Accessories. The following are criminally liable for light felonies: 1. Principals. 2. Accomplices.

Under the Revised Penal Code, when more than one person

participated in the commission of the crime, the law looks into

their participation because in punishing offenders, the Revised

Penal Code classifies them as:

PRINCIPAL;

ACCOMPLICE; OR

ACCESSORY.

This classification is true only under the Revised Penal Code

and is not applied under special laws, because the penalties

under the latter are never graduated.

Do not use the term “principal” when the crime committed is a

violation of special law (use the term “offender/s, culprit/s,

accused”).

As to the liability of the participants in a grave, less grave

or light felony:

1. When the felony is grave, or less grave, all participants are

criminally liable.

2. But where the felony is only light, only the principal and

the accomplice are liable. The accessory is not.

Therefore, it is only when the light felony is against persons

or property that criminal liability attaches to the principal

or accomplice, even though the felony is only attempted or

frustrated, but accessories are not liable for light felonies.

Note that accessories are not liable for light felonies.

REASON: In the commission of light felonies, the social wrong

as well as the individual prejudice is so small that penal

sanction is unnecessary.

The classification of the offenders as principal, accomplice

or an accessory is essential under the RPC. The classification

maybe applied to special laws only if the latter provides for

the same graduated penalties as those provided under the RPC.

There Are Two Parties In All Crimes:

1. Active subject (the criminal)

Art. 16 enumerates the active subjects of the crime.

2. Passive subject (the injured party) Is the holder of the

injured right: the man, the juristic person, the group, and

the State.

Note: Only natural persons can be the active subject of crime

because of the highly personal nature of the criminal

responsibility.

However, corporation and partnership can be a passive subject of

a crime.

GENERALLY: Corpses and animals cannot be passive subjects

because they have no rights that may be injured.

EXCEPTION: Under Art. 253, the crime of defamation may be

committed if the imputation tends to blacken the memory of

one who is dead.

This article applies only when the offenders are to be judged

by their individual, and not collective, liability.

ART.17. Principal By Direct Participation ARTICLE 17. Principals. — The following are considered principals: 1. Those who take a direct part in the execution of the act; 2. Those who directly force or induce others to commit it; 3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

PRINCIPALS

THREE TYPES OF PRINCIPALS:

1. Principal by DIRECT PARTICIPATION (par.1)

2. Principal by INDUCTION (par.2)

3. Principal by INDISPENSABLE COOPERATION (par.3)

Par. 1 – Principals by direct participation

Requisites:

1. That they participated in the criminal resolution (conspiracy);

2. That they carried out their plan and personally took part

in its execution by acts which directly tended to the same end.

NOTE: If the second element is missing, those who did not

participate in the commission of the acts of execution cannot

be held criminally liable, unless the crime agreed to be

committed is treason, sedition, coup d’etat or rebellion

MEANING OF “personally took part in its execution”:

- That the principal by direct participation must be at

the scene of the commission of the crime, personally

taking part in its execution.

- Under conspiracy, although he was not present in the

scene of the crime, he is equally liable as a principal

by direct participation.

Ex: One serving as guard pursuant to the conspiracy

is a principal by direct participation

CONSPIRACY – there is unity of purpose and intention.

How conspiracy is established:

- It is proven by overt act beyond reasonable doubt.

- Mere knowledge or approval is insufficient

- It is not necessary that there be formal agreement

- Conspiracy is implied when the accused had a common

purpose and were united in execution.

- Unity of purpose and intention in the commission of the

crime may be shown in the following cases:

1. Spontaneous agreement at the moment of the commission of the

crime

2. Active cooperation by all the offenders in the perpetration of the

crime

3. Contribution by positive acts to the realization of a common

criminal intent

4. Presence during the commission of the crime by a band and

lending moral support thereto.

While conspiracy may be implied from the circumstances attending

the commission of the crime, it is nevertheless a rule that conspiracy must be established by positive and conclusive evidence.

NOTES:

Conspirator is not liable for the crimes of the others which

are not the object of the conspiracy nor are logical or

necessary consequences thereof

Regarding multiple rape – each rapist is liable for another’s

crime because each cooperated in the commission of the rapes

perpetrated by the others

EXCEPTION: in the crime of murder w/ treachery – all the

offenders must at least know that there will be treachery

in executing the crime or cooperate therein.

No such thing as conspiracy to commit an offense through

negligence. However, special laws may make one a co-principal.

Conspiracy is negated by the acquittal of co-defendant.

Those who are liable:

1. Materially execute the crime

2. Appear at the scene of the crime

3. Perform acts necessary in the commission of the offense

Why one who does not appear at the scene of the crime is not liable:

1. His non-appearance is deemed desistance which is favored and

encouraged;

2. Conspiracy is generally not a crime unless the law specifically

provides a penalty therefor.

3. There is no basis for criminal liability because there is no criminal

participation.

Art.17 Par 2. Principal By Induction

Requisites:

1. That the inducement be made directly with the intention of

procuring the commission of the crime; and

2. That such inducement be the determining cause of the

commission of the crime by the material executor.

INDUCTOR PROPOSES TO COMMIT A FELONY

Induce others Same

Liable only when the crime is executed

Punishable at once when proposes to commit rebellion or treason. The person to whom one proposed should not commit the crime, otherwise the latter becomes an inductor

Covers any crime Covers only treason and rebellion

Forms of Inducements

1. By Price, reward or promise 2. By irresistible force or uncontrollable fear

*Imprudent advice does not constitute sufficient inducement

*Conspiracy is negated by the acquittal of the co-defendant. One cannot be held guilty of having instigated the commission of

the crime without first being shown that the crime was actually

committed (or attempted) by another.

Thus, there can be no principal by inducement (or by indispensable

cooperation) unless there is a principal by direct participation.

But there can be a principal by direct participation without a

principal by inducement (or by indispensable cooperation).

Two Ways Of Becoming Principal By Induction:

1. By directly forcing another to commit a crime by :

a) Using irresistible force.

b) Causing uncontrollable fear.

In these cases, there is no conspiracy, not even a unity

of criminal purpose and intention. Only the one using the

force or causing the fear is criminally liable. The

material executor is not criminally liable because of

Art. 12, pars. 5 and 6 (exempting circumstances)

2. By directly inducing another to commit a crime by –

a) Giving of price, or offering of reward or promise.

The one giving the price or offering the reward or

promise is a principal by inducement while the one

committing the crime in consideration thereof is a

principal by direct participation. There is collective

criminal responsibility.

b) Using words of command The person who used the words of

command is a principal by inducement while the person

who committed the crime because of the words of command

is a principal by direct participation. There is also

collective criminal responsibility.

Requisites for words of command to be considered inducement:

1. Commander has the intention of procuring the commission

of the crime

2. Commander has ascendancy or influence

3. Words used be so direct, so efficacious, so powerful

4. Command be uttered prior to the commission

5. Executor had no personal reason

NOTE: Words uttered in the heat of anger and in the

nature of the command that had to be obeyed do not

make one an inductor

The inducement must precede the act induced and must be so

influential in producing the criminal act that without it, the act would

not have been performed. Mere imprudent advice is not inducement.

If the person who actually committed the crime had reason of his

own to commit the crime, it cannot be said that the inducement was

influential in producing the criminal act.

Effects Of Acquittal Of Principal By Direct Participation

Upon Liability Of Principal By Inducement:

1. Conspiracy is negatived by the acquittal of co- defendant.

2. One cannot be held guilty of having instigated the commission

of a crime without first being shown that the crime has

been actually committed by another.

But if the one charged as principal by direct participation is acquitted

because he acted without criminal intent or malice, his acquittal is

not a ground for the acquittal of the principal by inducement.

REASON FOR THE RULE: In exempting circumstances, such as when

the act is not voluntary because of lack of intent on the part of the

accused, there is a crime committed, only that the accused is not a

criminal.

Examples:

While in the course of a quarrel, a person shouted to A, “Kill

him! Kill him!” A killed the other person. Is the person who

shouted criminally liable? Is that inducement?

- No. The shouting must be an irresistible force for the one

shouting to be liable.

There was a quarrel between two families. One of the sons of

family A came out with a shotgun. His mother then shouted,

“Shoot!” He shot and killed someone. Is the mother liable?

- No.

People v. Balderrama 226 SCRA 537 (1993),

Ernesto shouted to his younger brother Oscar, “Birahin mo na,

birahin mo na!” Oscar stabbed the victim. It was held that there

was no conspiracy. Joint or simultaneous action per se is not

indicia of conspiracy without showing of common design. Oscar

has no rancor with the victim for him to kill the latter.

Considering that Ernesto had great moral ascendancy and influence

over Oscar, being much older (35 years old), than the latter, who

was 18 years old, and it was Ernesto who provided his allowance,

clothing, as well as food and shelter, Ernesto is principal by

inducement.

People v. Agapinay, 188 SCRA 812 (1990),

The one who uttered “kill him, we will bury him.” while the

felonious aggression was taking place cannot be held liable as

principal by inducement. Utterance was said in the excitement

of the hour, not a command to be obeyed.

People v. Madall, 188 SCRA 69 (1990),

The son was mauled. The family was not in good terms with their

neighbors. The father challenged everybody and when the neighbors

approached, he went home to get a rifle. The shouts of his wife

“here comes another, shoot him” cannot make the wife a principal

by inducement. It is not the determining cause of the crime in

the absence of proof that the words had great influence over the

husband. Neither is the wife’s act of beaming the victim with a

flashlight indispensable to the killing. She assisted her husband

in taking good aim, but such assistance merely facilitated the

felonious act of shooting. Considering that it was not so dark and

the husband could have accomplished the deed without his wife’s

help, and considering further that doubts must be resolved in

favor of the accused, the liability of the wife is only that of

an accomplice.

Art.17 Par. 3 – Principal By Indispensable Cooperation

Requisites:

1. Participation in the criminal resolution, that is, there is either

anterior conspiracy or unity of criminal purpose and intention

immediately before the commission of the crime charged; and

2. Cooperation in the commission of the offense by performing

another act, without which it would not have been accomplished.

MEANING OF “cooperation in the commission of the offense”

- To desire or wish in common a thing. But that common will

or purpose does not necessarily mean previous understanding,

for it can be explained or inferred from the circumstances

of each case.

NOTE: If the cooperation is not indispensable, the offender is

only an accomplice.

Collective Criminal Responsibility:

- This is present when the offenders are criminally liable

in the same manner and to the same extent. The penalty to

be imposed must be the same for all.

Principals by direct participation have collective criminal

responsibility. Principals by induction, (except those who directly

forced another to commit a crime) and principals by direct

participation have collective criminal responsibility. Principals by

indispensable cooperation have collective criminal responsibilities

with the principals by direct participation.

Individual Criminal Responsibility:

- In the absence of any previous conspiracy, unity of

criminal purpose and intention immediately before the

commission of the crime, or community of criminal design,

the criminal responsibility arising from different acts

directed against one and the same person is considered as

individual and not collective, and each of the participants

is liable only for the act committed by him.

- QUASI-COLLECTIVE criminal responsibility: Some of the

offenders in the crime are principals and the others are

accomplices.

What is the essence of being a principal by indispensable

cooperation:

- The focus is not just on participation but on the

importance of participation in committing the crime.

- The basis is the importance of the cooperation to the

consummation of the crime.

- If the crime could hardly be committed without such

cooperation, then such cooperation would bring

about a principal.

- If the cooperation merely facilitated or hastened

the consummation of the crime, this would make the

cooperator merely an accomplice.

In case of doubt, favor the lesser penalty or liability. Apply

the doctrine of pro reo.

ART.18 Accomplices ARTICLE 18. Accomplices. — Accomplices are those persons who, not being included in article 17, cooperate in the execution of the offense by previous or simultaneous acts.

ACCOMPLICES - Persons who do not act as principals but cooperate

in the execution of the offense by previous and simultaneous acts,

which are not indispensable to the commission of the crime. They act as mere instruments that perform acts not essential to the

perpetration of the offense.

Requisites: (the following must concur)

1. That there be community of design; that is, knowing the criminal

design of the principal by direct participation, he concurs with

the latter his purpose;

2. That he cooperates in the execution of the offense by previous

or simultaneous acts, with the intention of supplying material

or moral aid in the execution of the crime in an efficacious

way; and

3. That there be a relation between the acts done by the principal

and those attributed to the person charged as an accomplice.

NOTES:

Before there could be an accomplice, there must be a principal by

direct participation.

The person charged as an accomplice should not have inflicted a

mortal wound. If he inflicted a mortal wound, he becomes a

principal by direct participation.

In case of doubt, the participation of the offender will be

considered that of an accomplice rather than that of a principal.

When is one regarded as an accomplice:

Determine if there is a conspiracy.

- If there is, as a general rule, the criminal liability of all

will be the same, because the act of one is the act of all.

Exception:

- If the participation of one is so insignificant

- such that even without his cooperation,

- the crime would be committed just as well,

- then notwithstanding the existence of a conspiracy, such offender will be regarded only as an accomplice.

What are the other traits of an accomplice

- does not have a previous agreement or understanding; or

- is not in conspiracy with the principal by direct participation

In Principal by Cooperation - Cooperation is indispensable in the

commission of the act.

Accomplice - Cooperation is not indispensable in the commission

of the act.

ART.19 Accessories ARTICLE 19. Accessories. — Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery. 3. By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.

Accessories are those who:

1. having knowledge of the commission of the crime, and

2. without having participated therein either as principals or

accomplices, take part subsequent to its commission in any

of the following acts:

a. By profiting themselves or assisting the offender to profit

by the effects of the crime.

b. Assisting the offender to profit by the effects of the crime.

c. By concealing or destroying the body of the crime to prevent

its discovery.

In profiting by the effects of the crime, the accessory must

receive the property from the principal. He should not take it

without the consent of the principal. If he took it without the

consent of the principal, he is not an accessory but a principal

in the crime of theft.

EXAMPLE:

PAR. 1 - person received and used property from another, knowing

it was stolen

PAR. 2 - placing a weapon in the hand of the dead who was

unlawfully killed to plant evidence, or burying the

deceased who was killed by the principals

PAR. 3 - a) public officers who harbor, conceal or assist in

the escape of the principal of any crime (not light

felony) with abuse of his public functions

b) private persons who harbor, conceal or assist in

the escape of the author of the crime – guilty of

treason, parricide, murder or an attempt against

the life of the President, or who is known to be

habitually guilty of some crime.

GENERAL RULE: If the Principal is acquitted the Accessory is

also acquitted. The responsibility of the accessory is

subordinate to that of the principal in a crime

Exception: When the crime was in fact committed by the

principal, but the principal is covered by exempting

circumstances (Art 12) and as a result he is not held liable.

However, it is possible that the accessory may still be held

liable even if the principal was acquitted by an

exempting circumstance.

Trial of accessory may proceed without awaiting the result

of the separate charge against the principal because the criminal responsibilities are distinct from each other.

Two classes of accessories contemplated in par. 3 of art. 19

1. PUBLIC officers, who harbor, conceal or assist in the escape

of the principal of any crime (not light felony) with abuse

of his public functions.

Requisites:

1. The accessory is a public officer.

2. He harbors, conceals, or assists in the escape of the

principal.

3. The public officer acts with abuse of his public functions.

4. The crime committed by the principal is any crime,

provided it is not a light felony.

2. PRIVATE persons who harbor, conceal or assist in the escape

of the author of the crime who is guilty of treason, parricide,

murder, or attempts against the life of the President, or

who is known to be habitually guilty of some other crime.

Requisites:

1. The accessory is a private person.

2. He harbors, conceals or assists in the escape of the

author of the crime.

3. The crime committed by the principal is either:

a. Treason,

b. Parricide,

c. Murder,

d. An attempt against the life of the President, or

e. That the principal is known to be habitually guilty

of some other crime.

Neither the letter nor the spirit of the law requires that

the principal be convicted before one may be punished as

an accessory. As long as the corpus delicti is proved and

the accessory’s participation as such is shown, he can be

held criminally responsible and meted out the corresponding

penalty (Inovero vs. Coronel, CA, 65 O.G.3160).

The prescribed acts of the accessory under par.2 must have

been intended to prevent the discovery of the crime, hence,

mere silence does not make one an accessory. If, however,

the crime involved is a conspiracy to commit treason, his

silence may hold him liable for misprision of treason

(Art. 116) but as a principal thereof.

Where the accused misleads the authorities by giving them

false information, such act is equivalent to concealment and he should be held as an accessory.

Principal Distinguished from Accessory

1. Principal - Takes direct part or cooperates in, or induces

the commission of the crime.

Accessory - Does NOT take direct part or cooperates in, or

induces the commission of the crime.

2. Principal - cooperates in the commission of the offense by

acts either prior thereto or simultaneous therewith.

Accessory - does not take part in the commission of the

offense.

3. Principal - Participates during commission of the crime.

Accessory - Participation of the accessory in all cases

always SUBSEQUENT to the commission of the crime.

ART.20 Accessories Who Are Exempt From Criminal Liability ARTICLE 20. Accessories Who are Exempt from Criminal Liability. — 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 single exception of accessories falling within the provisions of paragraph 1 of the next preceding article.

BASIS:

The exemption provided for in this article is based on the ties

of blood and the preservation of the cleanliness of one’s name,

which compels one to conceal crimes committed by relatives so

near as those mentioned in this article.

AN ACCESSORY IS EXEMPT FROM CRIMINAL LIABILITY WHEN

THE PRINCIPAL IS HIS :

1. spouse, or

2. ascendant, or

3. descendant, or

4. legitimate, natural or adopted brother, sister or relative by

affinity within the same degree.

Accessory Is Not Exempt From Criminal Liability Even If The

Principal Is Related To Him, If Such Accessory –

1. profited by the effects of the crime, or

2. assisted the offender to profit by the effects of the crime.

REASON: Because such acts are prompted not by affection but

by a detestable greed.

NOTES:

Nephew and Niece not included

Public officer contemplated in par. 3 of Art. 19 is exempt by

reason of relationship to the principal, even if such public

officer acted with abuse of his official functions.

REASON: Ties of blood or relationship constitutes a more

powerful incentive than the call of duty.

P.D. 1829 penalizes the act of any person who knowingly or

willfully obstructs, impedes, frustrates or delays the

apprehension of suspects and the investigation and prosecution

of criminal cases.

The benefits of the exception in Art. 20 do not apply to PD 1829.

PD 1829 - The law penalizing obstruction of justice.