Revised Penal Code Reviewer - Articles 11-15

Chapter Two

Justifying Circumstances and Circumstances Which Exempt From Criminal Liability

The circumstances affecting criminal liability are:

I. Justifying circumstances (Art. 11)

II. Exempting circumstances (Art. 12)

III. Mitigating circumstances (Art. 13)

IV. Aggravating circumstances (Art. 14)

V. Alternative circumstances (Art. 15)

Imputability, defined.

Imputability - the quality by which an act may be ascribed to a person as its author or owner. It implies that the act committed has been freely and consciously done and may, therefore, be put down to the doer as his very own.

Responsibility, defined.

Responsibility - the obligation of suffering the consequences of crime. It is the obligation of taking the penal and civil consequences of the crime.

Imputability, distinguished from responsibility.

While imputability implies that a deed may be imputed to a person, responsibility implies that the person must take the consequence of such a deed.

Meaning of “guilt.”

Guild - an element of responsibility, for a man cannot be made to answer for the consequences of a crime unless he is guilty.

JUSTIFYING CIRCUMSTANCES

Definition

Justifying circumstances are those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability.

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 AGRESSION;

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 PRECEEDING 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.

Self-defense.

In self-defense, the burden of proof rests upon the accused. His duty is to establish self-defense by clear an convincing evidence, otherwise, conviction would follow from his admission that he killed the victim. He must rely on the strength of his own evidence and not on the weakness of that for the prosecution.

The Plea of self-defense cannot be justifiably entertained where it is not only uncorroborated by any separate competent evidence but in itself is extremely doubtful.

Requisites of self-defense

1. Unlawful aggression

- is equivalent to assault of an immediate and imminent kind. There is unlawful aggression when the peril to one’s life, limb or right is either actual or imminent. There must be actual physical force or actual use of weapon. 

- there must be an actual physical assault upon a person, or at least a threat to inflict real injury.

- it presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and not merely threatening or intimidating attitude. 

Peril to one’s life

Actual - That the danger must be present, that is, actually in existence.

Imminent - that the danger is on the point of happening. It is not required that the attack already begins, for it may be too late.

Mere belief of an impending attack is not sufficient.

Retaliation is not self-defense

Retaliation is different from an act of self-defense. In retaliation, the aggression that was begun by the injured party already ceased to exist when the accused attacked him. In self-defense, the aggression was still existing when the aggressor was injured or disabled by the person making a defense.

Retaliation is not a justifying circumstance.

The settled rule in jurisprudence is that when unlawful aggression ceases, the defender no longer has the right to kill or even wound the former aggressor. Retaliation is not a justifying circumstance. Upon the cessation of the unlawful aggression and the danger or risk to life and limb, the necessity for the person invoking self-defense to attack his adversary ceases. If he persists in attacking his adversary, he can no longer invoke the justifying circumstance of self-defense. Self-defense does not justify the unnecessary killing of an aggressor who is retreating from the fray.

The attacked made by the deceased and the killing of the deceased by the defendant should succeed each other without appreciable interval of time.

- In order to justify homicide on the ground of self-defense, it is essential that the killing of the deceased by the defendant be simultaneous with the attack made by the deceased, or at least both acts succeeded each other without appreciable interval of time.

- When the killing of the deceased by the accused was after the attack made by the deceased, the accused mut have no time nor occasion for deliberation and cool thinking.

Unlawful aggression in defense of other rights.

A. Attempt to rape a woman.

B. Defense of property.

C. Defense of home.

The belief of the accused may be considered in determining the existence of unlawful aggression.

There is self-defense even if the aggressor used a toy pistol, provided the accused believed it was a real gun.

Threat to inflict a real injury as unlawful aggression.

A mere threatening or intimidating attitude, not preceded by an outward and material aggression, is not unlawful aggression, because it is required that the act be offensive and positively strong.

2. Reasonable necessity on the means employed to prevent or repel it

- presupposes the existence of unlawful aggression, which is either imminent or actual.

- the means employed by the person making a defense must be rationally necessary to prevent or repel an unlawful aggression.

When only minor physical injuries are inflicted after unlawful aggression has ceased to exist, there is still self-defense if mortal wounds were inflicted at the time the requisites of self- defense were present.

The test of reasonableness of the means used.

Whether the means employed is reasonable, will depend upon:

A. The nature and quality of the weapon used by the aggressor;

B. His physical condition

C. His size, character;

D. Other circumstances

E. The person defending himself;

F. The place and occasion of the assault.

Perfect equality between the weapon used by the one defending himself and that of the aggressor is not required, because the person assaulted does not have sufficient tranquility of mind to think, to calculate and to choose which weapon to use.

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

Cases in which third requisite of self-defense considered present.

The third requisite of self-defense is present --

A. When no provocation at all was given to the aggressor by the person defending himself; or

B. When, even if a provocation was given, it was not sufficient; or

C. Whe, even if the provocation was sufficient, it was not given by the person defending himself; or

D. When, even if a provocation was given by the person defending himself, it was not proximate and immediate to the act of aggression.

Battered Woman Syndrome as a defense.

Under R.A. No. 9262 otherwise known as “Anti-Violence Against Women and their Children Act of 2004,” which took effect on March 27, 2004, it provides that --

“Sec. 26. Battered Women Syndrome as a Defense. --  Victim-survivors who are found by the courts to be suffering from battered women syndrome do not incur criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.

The Battered Woman Syndrome, explained.

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

More graphically, the battered woman syndrome is characterized by the so-called “cycle of violence,” which has three phases:

(1) the tension-building phase;

(2) The acute battering incident; and

(3) The tranquil, loving (or, at least, nonviolent) phase.

PARAGRAPH 2 - DEFENSE OF RELATIVES

ANYONE WHO ACTS IN DEFENSE OF THE PERSON OR RIGHTS OF HIS SPOUSE, ASCENDANTS, DESCENDANTS, OR LEGITIMATE, NATURAL OR ADOPTED BROTHERS OR SISTER, 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.

Relatives that can be defended.

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 fourth civil degree.

Requisites of defense of relatives:

1. Unlawful aggression;

2. Reasonable necessity of the means employed to prevent or repel it; and

3. In case the provocation was given by the person attacked, the one making a defense had no part therein.

PARAGRAPH 3 - DEFENSE OF STRANGER

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 AD THAT THE PERSON DEFENDING BE NOT INDUCED BY REVENGE, RESENTMENT, OR OTHER EVIL MOTIVE.

Requisites:

1. Unlawful aggression;

2. Reasonable necessity of the means employed to preven or repel it; and

3. The person defending be not induced by revenge, resentment, or other evil motive.

Who are deemed strangers?

Any person not included in the enumeration of relatives mentioned in paragraph 2 of this article, is considered stranger for the purpose of paragraph 3. Hence, even a close friend or a distance relative is a stranger within the meaning of paragraph 3.

The person defending “be not induced.”

Paragraph 3 of Article 11 uses the phrase “be not induced.” Hence,even if a person has a standing grudge against the assailant, if he enters upon the defense of a stranger from serious bodily harm or possible death, the third requisite of defense of stranger still exists. The third requisite would be lacking if such person was prompted by his grudge against the assailant, because the alleged defense of the stranger would be only a pretext.

PARAGRAPH 4 -- AVOIDANCE OF GREATER EVIL OR INJURY.

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.

“Damage to another.”

This term covers injury to persons and damage to property.

“That the evil sought to be avoided actually exists.”

The evil must actually exist. If the evil sought to be avoided is merely expected or anticipated or may happen in the future, paragraph 4 of Art. 11 is not applicable.

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

“The greater evil should not be brought about by the negligence or imprudence of the actor.”

“When the accused was not avoiding any evil, he cannot invoke the justifying circumstance of avoidance of a greater evil or injury.”

“The evil which brought about the greater evil must not result from a violation of law by the actor.”

PARAGRAPH 5 -- FULFILLMENT OF DUTY OR LAWFUL EXERCISE OF RIGHT OR OFFICE.

ANY PERSON WHO ACTS IN THE FULFILLMENT OF A DUTY OR IN THE LAWFUL EXERCISE OF A RIGHT OR OFFICE.

Requisites:

1. That the accused acted in the performance of a duty or in the lawful exercise or a right or office;

2. That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.

Shooting an offender who refused to surrender is justified.

PARAGRAPH 6 - OBEDIENCE TO AN ORDER ISSUED FOR SOME LAWFUL PURPOSE.

ANY PERSON WHO ACTS IN OBEDIENCE TO AN ORDER ISSUED BY A SUPERIOR FOR SOME LAWFUL PURPOSE.

Requisites:

1. That an order has been issued by a superior.

2. That such order must be for some lawful purpose.

3. That the measn used by the subordinate to carry out said order is lawful.

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

When the order is not for a lawful purpose, the subordinate who obeyed it is criminally liable.

When subordinate is not liable for carrying out an illegal order of his superior, if he is not aware of the illegality of the order and he is not negligent.

EXEMPTING CIRCUMSTANCES

Definition

- are those 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.

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 IMECILE 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 ERSONS THUS AFFLICATED, 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 ATICLE 80 OF THIS CODE.

WHEN SUCH MINOR IS ADJUDGED TO BE CRIMINALLY IRRESPONSIBLE, THE COURT, IN CONFORMIT WITH THE PROVISIONS OF THIS AND THE PRECEEDING 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 BE 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 IMPLUSE 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 INSUPERABLE CAUSE.

In exempting circumstances, there is a crime committed but no criminal liability arises.

Technically, one who acts by virtue of any of the exempting circumstances commits a crime, although by the complete absence of any of the conditions which constitute free will or voluntariness of the act, no criminal liability arise.

PARAGRAPH 1 - AN IMBECILE OR AN INSANE PERSON, UNLESS THE LATTER HAS ACTED DURING A LUCID INTERVAL.

Imbecility distinguished from insanity

- While the imbecile is exempt in all cases from criminal liability, the insane is not exempt if it can be shown that he acted during a lucid interval. During lucid interval, the insane acts with intelligence.

- an imbecile is one who, while advanced in age, has a mental development comparable to that of children between two and seven years of age. It is one who is deprived completely of reason or discernment and freedom of the will at the time of committing the crime.

To constitute insanity, there must be complete deprivation of intelligence or that there be a total deprivation of the freedom of the will.

- in order that the exempting circumstance of insanity may be taken into account, it is necessary that there be a complete deprivation of intelligence while committing the act, that is, that the accused be deprived of reason; that he acts without the least discernment; or that there be a total deprivation of freedom of the will.

- insanity exists when there is a complete deprivation of intelligence in committing the act, that is, the accused is deprived of reason, he acts without the least discernment, because there is a complete absence of the power to discern, or that there is a total deprivation of freedom of the will. Thus, mere abnormality of mental faculties is not enough, especially if the offender has not lost consciousness of his acts. At most, it is only a mitigating circumstance.

Insanity at the time of the commission of the felony distinguished from insanity at the time of the trial.

- when he was sane at the time of the commission of the crime, but he becomes insane at the time of the trial, he is liable criminally. The trial, however, will be suspended until the mental capacity of the accused be restored to afford him a fair trial.

PARAGRAPH 2. - A PERSON UNDER NINE YEARS OF AGE.

“Under nine years” to be construed “nine years of less.”

Age of absolute irresponsibility raised to fifteen years of age.

- Republic Act No. 9344, otherwise known as “Juvenile Justice and Welfare Act of 2006,” raised the age of absolute irresponsibility from nine years to fifteen years of age. Under Section 6 of the said law, a child fifteen years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subject to an intervention program as provided under Section 20 of the same law.

PARAGRAPH 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.

Paragraph 3, Article 12 of the RPC impliedly repealed by Republic Act No. 9344.

Children above fifteen but below eighteen years of age who acted without discernment exempt from criminal liability.

- a minor under eighteen but above fifteen must have acted with discernment to incur criminal liability. The minor is presumed to have acted without discernment since the phrase “unless he/she acted with discernment” indicates an exception to the general rule that a minor under 18 but above 15 has acted without discernment.

- Thus, it is incumbent upon the prosecution to prove that a minor who is over 15 but under 18 years of age has acted with discernment, in order for the minor not to be entitled to this exempting circumstance.

Periods of criminal responsibility

1. The age of absolute irresponsibility - 15 years and below (infancy).

2. The age of conditional responsibility - 15 years and 1 day to 18 years.

3. The age of full responsibility - 18 years or over (adolescence) to 70 (maturity).

4. The age of mitigated responsibility - 15 years and 1 day to 18 years, the offender acting with discernment; over 70 years of age.

Meaning of “discernment.”

- Discernment means the capacity of the child at the time of the commission of the offense to understand the difference between right and wrong and the consequence of the wrongful act.

Discernment and Intent distinguished

- While both are products of the mental processes within a person, “intent” refers to the desired act of the person while “discernment” relates to the moral significance that a ascribes to the said act. Hence, a person may not intend to shoot another but may be aware of the consequences of his negligent act which may cause injury to the same person in negligently handling the air rifle.

PARAGRAPH 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.

Elements:

1. A person is performing a lawful act;

2. With due care;

3. He causes an injury to another by mere accident;

4. Without fault or intention of causing it.

What is an accident?

- an accident is something that happens outside the sway of our will, and although it comes about through some act of our will, lies beyond the bounds of humanly foreseeable consequences. If the consequences are plainly foreseeable, it will be a case of negligence.

PARAGRAPH 5 - ANY PERSON WHO ACTS UNDER THE COMPULSION OF AN IRRESISTIBLE FORCE.

Elements:

1. That the compulsion is by means of physical force.

2. That the physical force must be irresistible.

3. That the physical force must come from a third person.

Passion or obfuscation cannot be irresistible force.

- the irresistible force can never consist in an impulse or passion, or obfuscation. It must consist of an extraneous force coming from a third person.

PARAGRAPH 6 - ANY PERSON WHO ACTS UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY.

- this exempting circumstance also presupposes that a person is compelled to commit a crime by another, but the compulsion is by means of intimidation or threat, not force or violence.

Elements:

1. That the threat which causes the fear is an evil greater than or at least equal to, that which he is required to commit;

2. That it promises an evil of such gravity and imminence that the ordinary man would have succumb to it.

Requisites:

1. Existence of an uncontrollable fear;

2. The fear must be real and imminent; and

3. The fear of an injury is greater than or at least equal that committed.

The accused must not have opportunity for escape or self-defense.

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

Distinction between irresistible force and uncontrollable fear.

- in irresistible force, the offender uses violence or physical force to compel another person to commit a crime; in uncontrollable fear, the offender employs intimidation or threat in compelling another to commit a crime.

“Actus me invito factus non est meus actus.” (“An act done by me against my will is not my act.”

PARAGRAPH 7 - ANY PERSON WHO FAILS TO PERFOR AN ACT REQUIRED BY LAW, WHEN PREVENTED BY SOME LAWFUL OR INSUPERABLE CAUSE.

Elements:

1. That an act is required by law to be done;

2. That a person fails to perform such act;

3. That his failure to perform such act was due to some lawful or insuperable cause.

Distinction between justifying and exempting circumstances.

1. A person who acts by virtue of a justifying circumstances does not transgress the law, that is, he does not commit any crime in the eyes of the law, because there is nothing unlawful in the act as well as in the intention of the actor. The act of such person is in itself bot just and lawful. 

In justifying circumstances, there is neither a crime nor a criminal. No civil liability, except in Par. 4 (causing damage to another state of necessity).

2. In exempting circumstances, there is a crime but no criminal liability. The act is not justified, but the actor is not criminally liable. There is civil liability, except in Pars. 4 and 7 (causing an injury by mere accident; failing to perform an act required by law when prevented by some lawful or insuperable cause) of Art. 12.

Absolutory Causes, defined.

Absolutory causes are those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed.

Entrapment and instigation distinguished.

- there is a wide difference between an entrapment and instigation, for while in the latter case the instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal, in entrapment, ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan. Entrapment is no bar to the prosecution and conviction of the lawbreaker. But when there is instigation, the accused must be acquitted.

Instigation  must be made by public officers or private detectives.

- a criminal act may not be punishable if the accused was induced to commit it by active cooperation and instigation on the part of public detectives.

- if the one who made the instigation is a private individual, not performing public function, both he and the one induced are criminally liable for the crime committed: the former, as principal by induction and the latter, as principal by direct participation.

Assurance of immunity by a public officer does not exempt a person from criminal liability.

MITIGATING CIRCUMSTANCES

Definition

- are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but served only to reduce the penalty.

Classes of mitigating circumstances.

1. Ordinary mitigation - those enumerated in subsections 1 to 10 of Article 13.

2. Privileged mitigating - 

A. Art. 68. Penalty to be imposed upon a person under eighteen years of age. - when the offender is a minor under 18 years of age and his case falls under the provisions of the Juvenile Justice and Welfare Act, the following rules shall be observed:

(1) a person under fifteen years of age, and a person over fifteen and under eighteen years of age who acted without discernment, are exempt from criminal liability;

(2) Upon a person over fifteen and under eighteen years of age who acted with discernment, and the penalty next lower than that prescribed by law shall be imposed, but always in the proper period

B. Art. 69. Penalty to be imposed when the crime committed is not wholly excusable - a penalty lower by one or two decrees than that prescribed by law, provided that the majority of such conditions are present.

C. Art. 64. Rules for the application if penalties which contain three periods. When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.

Distinctions

1. Ordinary mitigating is susceptible of being offset by any aggravating circumstance; while privilege mitigating cannot be offset by aggravating circumstance.

2. Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect of applying the penalty provided by law for the crime in its minimum period, in case of divisible penalty; whereas, privileged mitigating produces the effect of imposing upon the offender the penalty lower by one or two degrees than that provided by law for the crime. 

Circumstances which mitigate criminal liability

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.

7. THAT THE OFFENDER HAD VOLUNTARILY SURRENDERED HIMSELF TO A PERSON IN AUTHORITY OR HIS AGENTS, OR THAT HE HAD VOLUNATRILY 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 HIM MEANS OF ACTION, DEFENSE, OR COMMUNICATION WITH HIS FELLOW BEINGS.

9. SUCH ILLNESS OF THE OFFENDER AS WOULD DIMINISH THE EXERCISE OF THE WILL-POWE OF THE OFFENDER WITHOUT HOWEVER DEPRIVING HIM OF CONSCIOUSNESS OF HIS ACTS.

10. AND, FINALLY, ANY OTHER CIRCUMSTANCES OF A SIMILAR NATURE AND ANALOGOUS TO THOSE ABOVE-MENTIONED.

PARAGRAPH 1 - THOSE MENTIONED IN THE PRECEDING CHAPTER WHEN ALL THE REQUISITES NECESSARY TO JUSTIFY THE ACT OR TO EXEMPT FROM CRIMINAL LIABILITY IN THE RESPECTIVE CASES ARE NOT ATTENDANT.

Circumstances of justification or exemption which may give place to mitigation.

- the circumstances of justification or exemption which may give place to mitigation, because not all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are attendant, are the following:

(1) Self-defense (Art. 11, par. 1)

(2) Defense of relatives (Art. 11, par. 2)

(3) Defense of stranger (Art. 11, par. 3)

(4) State of necessity (Art. 11, par. 4)

(5) Performance of duty (Art. 11, par. 5)

(6) Obedience to order of superior (Art. 11, par. 6)

(7) Minority above 15 but below 18 years of age (R.A. No. 9344)

(8) Causing injury by mere accident (Art. 12, par. 4)

(9) Uncontrollable fear (Art. 12, par. 6)

Paragraph 1 of Article 13 is applicable only when unlawful aggression is present but the other two requisites are not present in any of the cases referred to in circumstances Nos. 1,2 and 3 of Article 11.

PARAGRAPH 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.

Paragraph 2, Article 13 of the RPC impliedly repealed by Republic Act No. 9344

-  whereas before, an offender fifteen or over but under eighteen years of age is entitled only to the benefits provided under Article 68 of the RPC, under R.A. No. 9344, such offender may be exempt from criminal liability if he/she acted without discernment. On the other hand, if such offender acted with discernment, such child in conflict with the law shall undergo diversion programs provided under chapter 2 of R.A. No. 9344.

Meaning of Diversion and Diversion Program under Republic Act No. 9344

- Diversion refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological, or educational background without resulting to formal court proceedings.

- Diversion Program refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings.

PARAGRAPH 3 - THAT THE OFFENDER HAD NO INTENTION TO COMMIT SO GRAVE A WRONG AS THAT COMMITTED.

This circumstance can be taken into account only when the facts proven show that there is a notable and evident disproportion between the means employed to execute the criminal act and its consequences.

Article 13, paragraph 3, is not applicable when the offender employed brute force.

- to prove this circumstance, the accused testified that “my only intention was to abuse her, but when she tried to shout, I covered her mouth and chocked her and later I found out that because of that she died.” The Supreme Court: “It is easy enough for the accused to say that he had no intention to do great harm. But he knew the girl was very tender in age, weak in body, helpless and defenseless. He knew or ought to have known the natural and inevitable result of the act of strangulation, committed by men of superior strength, specially on an occasion when she was resisting the onslaught upon her honor. The brute force employed by the appellant, completely contradicts the claim that he had no intention to kill the victim.”

Not applicable to felonies by negligence.

The reason is that in felonies through negligence, the offender acts without intent. The intent in intentional felonies is replaced by negligence, imprudence, lack of foresight or lack of skill in culpable felonies. Hence, in felonies through negligence, there is no intent on the part of the offender which may be considered as diminished.

Applicable only to offenses resulting in physical injuries or material harm.

- thus, the mitigating circumstance that the offender did not intent to commit so grave a wrong as that committed was not appreciated in cases of defamation or slander.

PARAGRAPH 4 - THAT SUFFICIENT PROVOCATION OR THREAT ON THE PART OF THE OFFENDED PART IMMEDIATELY PRECEDED THE ACT.

What is provocation?

- is understood as any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating any one.

Requisites:

1. That the provocation must be sufficient;

2. That it must originate from the offended party; and

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

The provocation must be sufficient.

- sufficient means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity.

Provocation must originate from the offended party.

Where the alleged provocation did not come from the deceased but from the latter’s mother, the same may not be appreciated in favor of the accused.

Difference between sufficient provocation as requisite of incomplete self-defense and as a mitigating circumstance.

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

Provocation must be immediate to the commission of the crime.

Between the provocation by the offended party and the commission of the crime by the person provoked, there should not be any interval of time. The reason for this requirement is that the law states that the provocation “immediately preceded the act.” When there is an interval of time between the provocation and the commission of the crime, 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.

PARAGRAPH 5 - 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 ROTHERS OR SISTERS, OR RELATIVES BY AFFINITY WITHIN THE SAME DEGREES.

Requisites:

1. That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendant, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees;

2. That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication ad the doing of the grave offense.

Distinguish provocation from vindication.

1. In the case of provocation, it is made directly only to the person committing the felony; in vindication, the grave offense may be committed also against the offender’s relatives mentioned by the law.

2. In vindication, the offended party must have done a grave offense to the offender or his relatives mentioned by the law; in provocation, the cause that brought about the provocation need not be a grave offense.

3. In provocation, it is necessary that the provocation or threat immediately preceded the act, i.e., that there be no interval of time between the provocation and the commission of the crime; while vindication, the vindication of the grave offense may be proximate, which admits of an interval of time between the grave offense done by the offended party ad the commission of the crime by the accused.

PARAGRAPH 6 - THAT OF HAVING ACTED UPON AN IMPULSE SO POWERFUL AS NATURALLY TO HAVE PRODUCED PASSION OR OBFUSCATION.

This paragraph requires that --

1. The accused acted upon an impulse.

2. The impulse must be so powerful that it naturally produced passion or obfuscation in him.

Rule for the application of this paragraph

Passion or obfuscation may constitute a mitigating circumstance only when the same arose from lawful sentiments. For this reason, even if there is actually passion or obfuscation on the part of the offender, there is no mitigating circumstance, when:

1. The act is committed in a spirit of lawlessness; or

2. The act is committed in a spirit of revenge.

Requisites of the mitigating circumstance of passion or obfuscation:

1. That there be an act, both unlawful and sufficient to produce such a condition of mind; and

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

No passion or obfuscation after 24 hours, or several hours or half an hour.

Obfuscation - when relationship is illegitimate - not mitigating.

Passion or obfuscation MAY lawfully arise from causes existing only in the honest belief of the offender.

Vindication of grave offense cannot co-exist with passion and obfuscation.

Passion or obfuscation compatible with lack of intention to commit so grave a wrong.

Passion or obfuscation incompatible with treachery

- passion or obfuscation cannot co-exist with treachery, for while in the mitigating circumstance of passion or obfuscation of the offender loses his reason and self-control, in the aggravating circumstance of treachery, the mode of attach must be consciously adopted. One who loses his reason and self-control cannot deliberately employ a particular means, method or form of attack in the execution of a crime.

Passion and obfuscation cannot co-exist with evident premeditation

- the aggravating circumstance of evident premeditation cannot co-exist with the circumstance of passion and obfuscation. The essence of premeditation is that the execution of the criminal act must be preceded by calm thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a composed judgment.

Passion or obfuscation distinguished from irresistible force.

1. While passion or obfuscation is a mitigating circumstance, irresistible force is an exempting circumstance.

2. Passion of obfuscation cannot give rise to an irresistible force because irresistible force requires physical force.

3. Passion or obfuscation, is in the offender himself, while irresistible force must come from a third person.

4. Passion or obfuscation must arise from lawful sentiments; whereas, the irresistible force is unlawful.

Passion or obfuscation distinguished from provocation.

1. Provocation comes from the injured party; passion or obfuscation is produced by an impulse which may be caused by provocation.

2. Provocation must immediately precede the commission of the crime; in passion or obfuscation, the offense which engenders perturbation of mind need not be immediate. It is only required that the influence thereof lasts until the moment the crime is committed.

3. In both, the effect is the loss of reason and self-control on the part of the offender.

PARAGRAPH 7 - THAT THE OFFENDER HAD VOLUNTARY SURRENDERED HIMSELF TO A PERSON IN AUTHORITY OR HIS AGENT, OR THAT HE HAD VOLUNTARILY CONFESSED HIS GUILT BEFORE THE COURT PRIOR TO THE PRESENTATION OF THE EVIDENCE FOR THE PROSECUTION.

Two mitigating circumstances are provided in this paragraph.

1. Voluntary surrender to a person in authority or his agents.

2. Voluntary confession of guilt before the court prior to the presentation of evidence for the prosecution.

Requisites of voluntary surrender.

A. That the offender had not been actually arrested.

B. That the offender surrendered himself to a person in authorty or the latter’s agent.

C. That the surrender was voluntary.

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

The law does not require that the surrender be prior to the order of arrest.

The surrender must be made to a person in authority or his agent.

- a “person in authority” is one directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws whether as an individual or as a member of some court or governmental corporation, board or commission.

- an “agent of a person in authority” is a person, who, by direct provision of the law, or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority.

Voluntary surrender does not simply mean non-flight.

- voluntary surrender does not simply mean non-flight. As a matter of law, it does not matter if the accused never avoided arrest and never hid or fled. What the law considers as mitigating is the voluntary surrender of an accused before his arrest, showing either acknowledgment of his guilt or an intention to save the authorities from the trouble and expense that his search and capture would require. 

- the fact that the accused did not escape or go into hiding after the commission of the murder and in fact he accompanied the chief of police to the scene of the crime without however surrendering to him and admitting complicity in the killing did not amount to voluntary surrender to the authorities and this circumstance would not be extenuating in that case.

The Revised Penal Code does not make any distinction among the various moments when the surrender may occur.

The surrender must be by reason of the commission of the crime for which defendant is prosecuted.

Surrender through an intermediary.

When is surrender voluntary?

- a surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either (1)because he acknowledges his guilt, or (2)because he wishes to save them the trouble and expenses necessarily incurred in his search and capture.

Requisites of plea of guilty.

1. That the offender spontaneously confessed his guilt.

2. That the confession of guilt was made in open court, that is, before the competent court that is to try the case; and

3. That the confession of guilt was made  prior to the presentation of evidence for the prosecution.

Please of guilty to a lesser offense than that charged, not mitigating.

- plea bargain

Reasons why plea of guilty is mitigating

- it is an act or repentance and respect for the law; it indicates a moral disposition in the accused, favorable to his reform.

PARAGRAPH 8 - THAT THE OFFENDER IS DEAF AND DUMB, BLIND OR OTHERWISE SUFFERING FROM SOME PHYSICAL DEFECT WHICH THUS RESTRICTS HIS MEANS OF ACTION, DEFENSE, OR COMMUNICATION WITH HIS FELLOW BEINGS.

Physical defect must restrict means of action, defense, or communication with fellow beings.

- physical defect referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his means to act, defend himself or communicate with his fellow beings are limited.

PARAGRAPH 9 - SUCH ILLNESS OF THE OFFENDER AS WOULD DIMINISH THE EXERCISE OF HIS WILL-POWER OF THE OFFENDER WITHOUT HOWEVER DEPRIVING HIM OF CONSCIOUSNESS OF HIS ACTS.

Requisites:

1. That the illness of the offender must diminish the exercise of his will-power.

2. That 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.

- when a person becomes affected by:

A. Dementia praecox

B. Manic depressive psychosis

Does this circumstance include illness of the mind?

Question: Does this paragraph refer to the mental condition more or less disturbed?

Answer: In accordance with some ruling of the court, illness of the mind is included. It would seem that a diseased mind, not amounting to insanity, may give place to mitigation.

PARAGRAPH 10 - AND, FINALLY, ANY OTHER CIRCUMSTANCE OF A SIMILAR NATURE AND ANALOGOUS TO THOSE ABOVEMENTIONED.

Examples of Analogous Mitigating Circumstance:

1. Over 60 years old with failing sight, similar to over 70 years of age mentioned in paragraph two.

2. Outraged feeling of owner of animal taken from ransom analogous to vindication of a grave offense.

3. Outraged feeling of creditor, similar to passion passion and obfuscation mentioned in paragraph 

4. Impluse of jealous feeling, similar to passion and obfuscation.

5. Manifestations of Battered Wife Syndrome, analogous to an illness that diminishes the exercise of will power.

6. Esprit de corps, similar to passion an obfuscation.

7. Voluntary restitution of stolen property, similar to voluntary surrender mentioned in paragraph 

8. Extreme poverty and necessity, similar to incomplete justification based on state of necessity.

9. Testifying for the prosection, analogous to plea of guilt.

Examples of Not Analogous Mitigating Circumstance:

1. Not resisting arrest, not analogous to voluntary surrender.

2. The condition of running amuck is not mitigating.

Mitigating circumstances which are personal to the offenders

Mitigating circumstances which arise from:

1. From the moral attributes of the offender

Example: A and B killed C, acting under an impulse which produced obfuscation. The circumstance of obfuscation arose from the moral attribute of A and it shall mitigate the liability of A only. It shall not mitigate the liability of B.

2. From his private relations with the offended party.

Example: A son of B, committed robbery against the latter, which C, a stranger, bought the property taken by A from B, knowing that the property was the effect of the crime of robbery. The circumstance of relationship arose from the private relation of A with B and it shall mitigate the liability of A only. It shall not mitigate the liability of C, an accessory.

3. From any other personal cause, shall only serve to mitigate the liability of the principals, accomplices, and accessories as to whom such circumstances are attendant.

Example: A, 16 years old and acting with discernment, inflicted serious physical injuries on C. B, seeing what A had done to C, kicked the latter, thereby concurring in the criminal purpose of A and cooperating with him by simultaneous act. The circumstance of minority arose from other personal cause and it shall mitigate the liability of A only. It shall not mitigate the liability of B, an accomplice.

Chapter Four

Circumstances Which Aggravate Ciminal Liability

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 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 PACE, 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 O THE OCCASSION 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 BAVE BEE PREVIOUSLY CONVICTED BY FINAL JUDGMENT OF ANOTHER CRIME EMBRACED IN THE SAME TITLE OF THIS CODE.

10. THAT THE OFFENDER HAS BEEN PREVIOUSLY PUNISHED FR AN OFFENSE TO WHICH THE LAW ATTACHES AN EQUAL OR GREATER PENALTY OF 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 STRENGHT, OR MEANS BE EMPLOYED TO WEAKEN THE DEFENSE.

16. THAT THE ACT BE COMMITTED WITH TREACHERY (ALEVOSIA).

THERE IS TREACHERY WHEN THE OFFENDER COMMITES 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 VEHICLE, 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.

It must be alleges in the information. If not alleged, they may still be considered in the award of damages.

Definistion:

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

Four Kinds of Aggravating Circumstances

1. Generic - those that can generally apply to all crimes.

   -It increases penalty to a maximum but not increase 1 degree higher than the penalty      

   provided by law for the offense.

   - it can be offset by ordinary mitigating circumstance.

 - In Art. 14, the circumstances in paragraphs nos. 1,2,3 (dwelling), 4,5,6,9,10,14,18,19 and 20, except “by means of motor vehicles,” are generic aggravating circumstances.

2. Specific/Special - those that apply only to particular crimes.

   - cannot be offset by any ordinary mitigating circumstances.

   - In Art. 14, the circumstances in paragraphs nos. 3 (except dwelling),15,16,17 and 21 are specific aggravating circumstances.

3. Qualifying - those that change the nature of the crime to a graver or more serious crime.

- Cannot be offset by any mitigating circumstance.

- it must be alleged during the information and prove during trial.

4. Inherent - those that must of necessity accompany the commission of the crime. 

Example: Evident premeditation is inherent in robbery, theft, estafa, adultery and concubinage.

Qualifying aggravating circumstance distinguished from generic aggravating circumstance.

1. The effect of a generic aggravating circumstance, not offset by any mitigating circumstance, is to increase the penalty which should be imposed upon the accused to the maximum period, but without exceeding the limit prescribed by law; while that of a qualifying circumstance is not only to give the crime its proper and exclusive name but also to place the author thereof in such a situation as to deserve no other penalty than that specially prescribed by law for said crime.

2. A qualifying aggravating circumstance cannot be offset by a mitigating circumstance; a generic aggravating circumstance may be compensated by a mitigating circumstance.

3. A qualifying aggravating circumstance to be such must be alleged in the information. It it is not alleged, it is a generic aggravating circumstance only.

Aggravating circumstance not alleged

- an aggravating circumstance, even if not alleged in the information, may be proved over the objection of the defense. This is true only as regards a generic aggravating circumstance. As regards a qualifying aggravating circumstance, the same must be alleged in the information because it is an integral part of the offense.

PARAGRAPH 1 - THAT ADVANTAGE BE TAKEN BY THE OFFENDER OF HIS PUBLIC POSITION.

- this is applicable only when the person committing the crime is a public officer who takes advantage of his public position.

Meaning of “advantage be taken by the offender of his public position”.

- the public officer must use the influence, prestige or ascendancy which his office gives him as the means by which he realizes his purpose. The essence of the matter is presented in the inquiry, “Did the accused abuse his office in order to commit the crime?

- “When a public officer commits a common crime independent of his official functions and does acts that are not connected with the duties of his office, he should be punished as a private individual without this aggravating circumstance.

Not aggravating when it is an integral element of , or inherent in, the offense.

This circumstances, taking advantage of public position, cannot be taken into consideration in offenses where taking advantage of official-position is made by law a integral element of the crim, such as in malversation or in falsification of document committed by public.

If the accused could have perpetrated the crime even without occupying his position, there is no abuse of position.

PARAGRAPH 2 - THAT THE CRIME BE COMMITTED IN CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES.

Requisites of this circumstance

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.

Meaning of Public Authority

- is a public officer who is directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws. 

Not applicable when crime is committed in the presence of an agent only.

Example of agent: Chief of Police, barangay policemen, barangay leader, barrio councilman, etc.

“Agent of a person in authority”

- is any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as barrio councilman, barrio policeman and barangay leader, and any person who comes to the aid of persons in authority.

The crime should not be committed against the publi authority.

- if the crime is committed against a public authority while he is in the performance of his official duty, the offender commits direct assault without this aggravating circumstance, because it is not a crime committed “in contempt of or with insult” to him, but a crime directly committed against him.

Knowledge that a public authority is present is essential.

- lack of knowledge on the part of the offender that a public authority is present indicates lack of intention to insult the public.

PARAGRAPH 3 - THAT THE ACT 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.

If all the four circumstances are present, they have the weigh of one aggravating circumstances only.

Applicable only to crimes against persons or honor.

- this circumstance (rank, age or sex) may be taken into account only in crimes against persons or honor.

Meaning of “with insult or in disregard.”

- there must be evidence that in the commission of the crime, the accused deliberately intended to offend or insult the sex or age of the offended party.

Not applicable in certain 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.

Example: (a)parricide, (b) rape, (c) abduction, or (d) seduction

That the crime be committed in the dwelling of the offended party

-dwelling must be a building or structure, exclusively used for rest and comfort. A “combination house and store” or a market stall where the victim slept is not a dwelling.

- dwelling is considered an aggravating circumstance primarily because of the sanctity of privacy the law accords to human abode.

Offended party must not give provocation

-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.

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.

Because the provocation is not immediate, dwelling is aggravating

The defendant learned that the deceased and the former’s wife were maintaining illicit relations. One night, he went to the house of the deceased and killed him then and there. During the trial of the case, the defense contended that the deceased provoked the crime by his illicit relations with the defendant’s wife.

Held: That the provocation (the illicit relations) was not given immediately prior to the commission of the crime. Dwelling is still aggravating.

Even if the defendant came to know of the illicit relations immediately before he went to the house of the deceases, the aggravating circumstance of dwelling may still be considered against the defendant because the provocation (the illicit relations) did not take place in that house.

Prosecution must prove that no provocation was given by the offended party.

Even if the offender did not enter the dwelling, this circumstance applies.

- 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. 

Even if the killing took place outside the dwelling, it is aggravating provided that the commission of the crime began in the dwelling.

- but dwelling was not aggravating in a case where the deceased was called down from his house and he was murdered in the vicinity.

What dwelling includes

- dwelling includes dependencies, the foot of the staircase and enclosure under the house.

When the deceased had two houses where he used to live, the commission of the crime in any of them is attended by the aggravating circumstance of dwelling.

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 the offender is a servant in the house.

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

3. In the crime of trespass to dwelling, it is inherent or included by law in defining the crime. This crime can only be committed in the dwelling of another.

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

5. When the dwelling where the crime was committed did not belong to the offended party

6. When the rape was committed in the ground floor of a two-story structure, the lower floor being used as a video rental store and not as a private place of abode or residence.

Dwelling was found aggravating in the following cases although the crimes were committed not in the dwelling of the victims.

1. The victim was raped in the boarding house where she was a bedspacer.

2. The victims were raped in their paternal home where they were guests at the time and did not reside there.

3. The victim was kiled in the house of her aunt where she was living with her niece. Dwelling was considered aggravating because dwelling may mean temporary dwelling.

4. The victims, while sleeping as guests in the house of another person, were shot to death in that house.

Dwelling is aggravating when the husband killed his estranged wife in the house solely occupied by her.

In case of adultery

- when adultery is committed in the dwelling of the husband even if it is also the dwelling of the unfaithful wife, it is aggravating because besides the latter’s breach of the fidelity she owes her husband, she and her paramour violated the respect due to the conjugal home and they both thereby injured and committed a very grave offense against the head of the house. BUT the rule is different if both the defendants (the wife and her paramour) and the offended party were living in the same house because the defendants had the right to be in the house. 

The aggravating circumstance present in such case is abuse of confidence, if the offender availed himself of the favorable position in which he was placed by the very act of the injured party, thus grossly abusing the confidence of the latter in admitting him into his dwelling.

PARAGRAPG 4 - THAT THE ACT BE COMMITTED WITH (1) ABUSE OF CONFIDENCE OR (2) OBVIOUS UNGRATEFULNESS.

Abuse of confidence.

- this circumstance exists only when the offended party has trusted the offender who later abuses such trust b committing the crime.

Requisites:

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: There is no abuse of confidence in attempted rape where on the day of the crime, the accused was in the company of the offended girl, not because of her confidence in him, but because they were partners in a certain business.

The confidence between the offender and the offended party must be immediate and personal.

- the mere fact that the voters had reposed confidence in the defendant by electing him to a public office does not mean that he abused their confidence when he committed estafa against them. 

Ungratefulness must be obvious, i.e., manifest and clear

PARAGRAPH 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.

Place where public authorities are engaged in the discharge of their duties (par.5), distinguished from contempt or insult to public authorities. (par.2)

1. In both, the public authorities are in the performance of their duties.

2. Under par. 5, the public authorities who are in the performance of their duties must be in their office; while in par. 2, the public authorities are performing their duties outside of their office.

3. Under par.2, the public authority should not be the offended party; while under par. 5, he may be the offended party.

Official or religious functions, not necessary.

- the place of the commission of the felony (par.5), if it is Malacanang palace or a church, is aggravating, regardless of whether State or official or religious functions are being held.

- the Chief Executive need not be in Malacanang palace. His presence alone in any place where the crime is committed is enough to constitute the aggravating circumstance. This aggravating circumstance is present even if he is not engaged in the discharge of his duties in the place where the crime is committed.

Offender must have intention to commit a crime when he entered the place.

Facts: At the time of the commission of the crime, both the deceased and defendant were inside a chapel. The deceased placed his hand on the right thigh of defendant girl, who pulled out with her right hand a fan knife and stabbed him.

Held: The aggravating circumstance that the killing was done in a place dedicated to religious worship cannot be legally considered, where there is no evidence to show that the defendant had murder in her heart when she entered the chape on the fatal night.

PARAGRAPH 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.

When aggravating:

Nighttime, uninhabited place or band is 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

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

Nighttime

- that period of darkness beginning at the end of dusk and ending at dawn. Nights are from sunset to sunrise.

Not aggravating when crime began at daytime.

- when the crime was the result of a succession of acts which took place within the period of two hours, commencing at 5pm and ending at 7pm, without a moment’s interruption in which it can be said that the thought of nighttime, being the most favorable occasion for committing the crime, occurred to the accused, there is no aggravating circumstance of nighttime.

The commission of the crime must begin and be accomplished in the nighttime.

The offense must be actually committed in the darkness of the night.

When the place of the crime is illuminated by light, nighttime is not aggravating.

The lighting of a matchstick or use of flashlights does not negate the aggravating circumstance of nighttime.

Uninhabited place.

What is uninhabited place?

- is one where there are no houses at all, a place at a considerable distance from town, or where the houses are scattered at a great distance from each other.

- the fact that the persons occasionally passed in the uninhabited place and that on the night of the murder another hunting party was not at a great distance away, does not matter. It is the nature of the place which is decisive.

Solitude must be sought to better attain the criminal purpose.

- it must appear that the accused sought the solitude of the place where the crime was committed, in order to better attain his purpose.

- Not present if the offended party was casually encountered by the accused and the latter did not take advantage of the place or there is no showing that it facilitated the commission of the crime.

By a band

What is a band?

- whenever more than three armed malefactors shall have acted together in the commission of a offense, it shall be deemed to have been committed by a band.

- the armed men must act together in the commission of the crime.

- all the armed men, at least four in number, must take direct part in the execution of the act constituting the crime.

Not applicable to crimes against chastity

PARAGRAPH 7 - THAT THE CRIME BE COMMITTED ON THE OCCASION OF A CONFLAGRATION, SHIPWRECK, EARTHQUAKE, EPIDEMIC OR OTHER CALAMITY OR MISFORTUNE.

Basis

- in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune to despoil them.

PARAGRAPH 8 - THAT THE CRIME BE COMMITTED WITH THE AID OF (1) ARMEND MEN, OR (2) PERSONS WHO INSURE OR AFFORD IMPUNITY.

Requisites:

1. That the 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.

Rule for the application of this circumstances

- the casual presence of armed men near the place where the crime was committed does not constitute an aggravating circumstance when it appears that the accused did not avail himself of their aid or rely upon them to commit the crime.

Exceptions:

1. This aggravating circumstance shall not be considered when both the attacking party and the party attached were equally armed.

2. This aggravating circumstance is not present when the accued as well as those who cooperated with him in the commission of the crime acted under the same plan for the same purpose.

“With the aid of armed men” (Par. 8), distinguished from “by a band.” (Par. 6)

- by a band requires that more than three armed malefactors shall have acted together in the commission of an offense. Aid of armed men is present even if one of the offenders merely relied on their aid, for actual aid is not necessary.

“Aid of armed men” is absorbed by “employment of a band.”

PARAGRAPH 9 - THAT THE ACCUSED IS A RECIDIVIST.

Who 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 the Revised Penal Code.

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.

No recidivism  if the subsequent conviction is for an offense committed before the offense involved in the prior conviction.

There is recidivism even if the lapse of time between two felonies is more than 10 years.

Pardon does not obliterate the fact that the accused was a recidivist; but amnesty extinguishes the penalty and its effects.

PARAGRAPH 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 WHICH IT ATTACHES A LIGHTER PENALTY. (REITERACION)

Requisites:

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 equal or greater penalty, or for two or more crimes to which it attaches lighter penalty than that for the new offense; and

3. That he is convicted of the new offense.

Recidivism and reiteracion, distinguished.

a. In reiteracion, it is necessary that the offender shall have served out his sentence for the first offense; whereas, in recidivism, it is enough that a final judgment has been rendered in the first offense.

b. In reiteracion, the previous and subsequent offenses must not be embraced in the same title of the Code; whereas, recidivism, requires that the offenses be included in the same title of the Code.

c. Reiteracion is not always an aggravating circumstance; whereas, recidivism is always to be taken into consideration in fixing the penalty to be imposed upon the accused.

The four forms of repetition are:

1. Recidivism (Paragraph 1, Article 14)

2. Reiteracion or habituality. (Paragraph 10, Article 14)

3. Multi-recidivism or habitual delinquency. (Article 62, Paragraph 5)

4. Quasi-recidivism. (Article 160)

Habitual delinquency.

- there is habitual delinquency when a person, within a period of ten years from the date of his release or last conviction of the crimes or serious or less serious physical injuries, robbery, theft, estafa or falsification, is found guilty of any of said crimes a third time or oftener. - In habitual delinquency, the offender is either a recidivist or one who has been previously punished for two or more offenses (habituality). He shall suffer an additional penalty for being a habitual delinquent.

Quasi-recidivism.

- any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony.

PARAGRAPH 11 - THAT THE CRIME BE COMMITTED IN CONSIDERATION OF A PRICE, REWARD OR PROMISE.

Principal by direct participation - the hired killer.

Principal by inducement - the one who offers the reward.

Price, reward or promise must be for the purpose of inducing another to perform the deed.

- 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 accused, it should not be taken into consideration for the purpose of increasing the penalty.

PARAGRAPH 12 - THAT THE CRIME BE COMMITTED BY MEANS OF INUNDIATION, 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.

- when another aggravating circumstance already qualifies the crime, any of these aggravating circumstances shall be considered as generic aggravating circumstance only..

- When there is not actual design to kill a person in burning a house, it is plain arson even if a person is killed.

- When the crime intended to be committed is arson and somebody dies as a result thereof, the crime is simply arson and the act resulting in the death of that person is not even an independent crime of homicide, it being absorbed.

- On the other hand, if the offender had the intent to kill the victim, burned the house where the latter was, and the victim dies as a consequence, the crime is murder, qualified by the circumstance that the crime was committed “by means of fire”.

- but if a house was set on fire after the killing of the victim, there would be two separate crimes of arson and murder or homicide. There would not be an aggravating circumstance of “by means of fire”.

PARAGRAPH 13 - THAT THE ACT BE COMMITTED WITH EVIDENT PREMEDITATION.

Essence of premeditation.

- the essence of premeditation is that 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.

Requisites of evident premeditation:

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 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.

The date and time when the offender determined to commit the crime is essential.

- the date and, if possible, the time when the offender determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from that date and time.

Why sufficient time is required.

- the offender must have an opportunity to coolly and serenely think and deliberate on the meaning and the consequences of what he planned to do, an interval long enough for his conscience and better judgment to overcome his evil desire and scheme.

When victim is different from that intended, premeditation is not aggravating.

PARAGRAPH 14 - THAT (1)CRAFT, (2)FRAUD, OR (3) DISGUISE BE EMPLOYED.

Craft

- involves intellectual trickery and cunning on the part of the accused.

- is 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.

Fraud

- insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design.

How is craft distinguished from fraud?

- when there is a direct inducement by insidious words or machinations, fraud is present; otherwise, the act of the accused done in order not to arouse the suspicion of the victim constitutes craft.

Disguise

- resorting to any devise to conceal identity.

PARAGRAPH 15 - THAT (1) ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH, OR (2) MEANS BE EMPLOYED TO WEAKEN THE DEFENSE.

Illustrations of no advantage of superior strength.

1. One who attacks another with passion and obfuscation does not take advantage of his superior strength.

2. This aggravating circumstance does not apply 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.

Illustrations of abuse of superior strength

1. When a strong man has ill-treated a child, an old or decrepit person, or one weakened by disease, r where a person’s physical strength has been overcome by the use of drugs or intoxicants.

When the attach was made on the victim alternately, there is no abuse of superior strength.

No abuse of superior strength in parricide against the wife.

- it is generally accepted that the husband is physically stronger than the wife.

There is abuse of superior strength when weapon used is out of proportion to the defense available to the offended party

When there is an allegation of treachery, superior strength is absorbed.

Means employed to weaken defense

Example:

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’s eyes and then wounds or kills him, evidently employs means which weaken the defense of his opponent.

Applicable only to crimes against persons, etc. 

PARAGRAPH 16 - THAT THE ACT BE COMMITTED WITH TREACHERY. (ALEVOSIA)

Meaning of treachery

- there is treachery when the offender commits any of the crimes against the person, employing means, methos 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.

- the offended party was not given opportunity to make a defense.

Rules regarding treachery

1. Applicable only to crimes against the person.

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

3. The mode of attack must be consciously adopted.

When the meeting between the accused and the victim is casual and the attach impulsively done, there is no treachery even if the attack was sudden and unexpected.

Requisites of treachery:

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

2. That the offender consciously adopted the particular means, method or form of attach employed by him.

There is treachery in killing a child

- this is because the weakness of the victim due to his tender age results in the absence of an danger to the accused.

Treachery may exist even if the attach is face to face.

Treachery must be proved by clear and convincing evidence.

Must treachery be present at the beginning of the assault?

- 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 the fatal wound was inflicted on the deceased he was defenseless, the circumstance of treachery must be taken into account.

Summary of the Rules:

1. When the aggression is continuous, treachery must be present at the beginning of the assault.

2. When the assault was not continuous, in that there was an interruption, it is sufficient that treachery was present at the moment the fatal blow was given.

In treachery, it makes no difference whether or not the victim was the same person whom the accused intended to kill.

When there is conspiracy, treachery is considered against all the offenders.

The mastermind should have knowledge of the employment of treachery if he was not present when the crime was committed.

Treachery is inherent in murder by poisoning.

Treachery cannot co-exist with passion and obfuscation.

- treachery cannot co-exist with passion or obfuscation, for while in the mitigating circumstance of passion or obfuscation, the offender loses his reason and self-control, in the aggravating circumstance of treachery the mode of attach must be consciously adopted. Once who loses his reason and self-control could not deliberately employ a particular means, method or form of attach in the execution of the crime.

PARAGRAPH 17 - THAT MEANS BE EMPLOYED OR CIRCUMSTANCES BROUGHT ABOUT WHICH ADD IGNOMINY TO THE NATURAL EFFECTS OF THE ACT.

Ignominy, defined.

- is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime.

Applicable to crimes against chastity, less serious physical injuries, light or grave coercion, and murder.

“Which add ignominy to the natural effects of the act.”

- according to this clause, the means employed or the circumstances brought about must tend to make the effects of the crime more humiliating or to put the offended party to shame.

Rape is ignominy in robbery with homicide.

PARAGRAPH 18 - THAT THE CRIME BE COMMITTED AFTER AN UNLAWFUL ENTRY.

Meaning of unlawful entry

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

- unlawful entry must be a means to effect entrance and not for escape.

Dwelling and unlawful entry taken separately in murders committed in a dwelling.

- when the accused gained access to the dwelling by climbing through the window and once inside, murdered certain persons in the dwelling, there were two aggravating circumstances which attended the commission of the crimes -- dwelling and unlawful entry.

Unlawful entry not aggravating in trespass to dwelling.

PARAGRAPH 19 - THAT AS A MEANS TO THE COMMISSION OF A CRIME, A WALL, ROOF, FLOOR, DOOR, OR WINDOW BE BROKEN.

PARAGRAPH 20 - THAT THE CRIME BE COMMITTED (1) WITH THE AID OF PERSONS UNDER FIFTEEN YEARS OF AGE, OR (2) BY MEANS OF MOTOR VEHICLES, AIRSHIPS, OR OTHER SIMILAR MEANS.

“Other similar means.”

- the expression should be understood as referring to motorized vehicle or other efficient means of transportation similar to automobile or airplane. Thus, if the culprit, before committing and after committing the crime, rode in a bicycle and escaped, there is no aggravating circumstance. But it is aggravating if he used a motorcycle.

PARAGRAPH 21 - THAT THE WRONG DONE IN THE COMMISSION OF THE CRIME BE DELIBERATELY AUGMENTED BY CAUSING OTHER WRONG NOT NECESSARY FOR ITS COMMISSION.

What is cruelty?

- there is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act.

Requisites of cruelty:

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.

The mere fact of inflicting various successive wounds upon a person in order to cause his death, no appreciable time intervening between the infliction of one wound and that of another to show that the offender wanted to prolong the suffering of his victim, is not sufficient for taking this aggravating circumstance into consideration.

Ignominy distinguished from cruelty.

- ignominy involves moral suffering, while cruelty refers to physical suffering.

Chapter 5

Alternative Circumstance

ARTICLE 15. THEIR CONCEPT - ALTERNATIVE CIRCUMSTANCES ARE THOSE WHICH MUST BE TAKEN INTO CONSIDERATION AS AGGRAVATING OR MITIGATING ACCORDING TO THE ATURE 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 DEGREE 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.

Definition

- 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.

The alternative circumstances are:

1. Relationship;

2. Intoxication; and

3. Degree of instruction and education of the offender.

I.Relationship.

- the alternative circumstance of relationship shall be taken into consideration when the offended party is the --

A. Spouse,

B. Ascendant,

C. Descendant,

D. Legitimate, natural, or adopted brother or sister, or

E. Relative by affinity in the same degree of the offender.

Other relatives included.

- the relationship of stepfather or stepmother and stepson or stepdaughter is included by analogy as similar to that of ascendant and descendant.

- the relationship of adopted parent and adopted child may also be included, as similar to that of ascendant and descendant.

- but the relationship between uncle and niece is not covered by any of the relationships mentioned.

When mitigating and when aggravating.

- as a rule, relationship is mitigating in crimes against property, by analogy to the provisions of Article 332. Thus, relationship is mitigating in the crimes of robbery, usurpation, fraudulent insolvency, and arson.

- in view of the provision of Article 332, when the crime committed is (1)theft, (2)swindling or estafa, or (3)malicious mischief, relationship is exempting.

- it is aggravating in crimes against persons in cases where the offended party is a relative of a higher degree than the offender, or when the offender and the offended party are relatives of the same level, as killing a brother, a brother-in-law, a half-brother, or adopted brother.

- when the crime against persons is any of the serious physical injuries, even if the offended party is a descendant of the offender, relationship is an aggravating circumstance.

- if the offense of serious physical injuries is committed by the offender against his child, whether legitimate or illegitimate, or any of his legitimate other descendants, relationship is aggravating. But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement.

When the crime is less serious physical injuries or slight physical injuries, the ordinary rule applies.

- but when the offense committed is less serious physical injuries; or slight physical injuries, relationship is a mitigating circumstance, if the offended party is a relative of a lower degree of the offender; and an aggravating circumstance, if the offended party is a relative of a higher degree of the offender.

When the crime is against persons is homicide or murder, relationship is aggravating even if the victim of the crime is a relative of lower degree.

Relationship is mitigating in trespass to dwelling.

Relationship is neither mitigating nor aggravating, when relationship is an element of the offense.

Examples: Parricide, adultery and concubinage.

In crimes against chastity, relationship is always aggravating.

II. Intoxication.

A. Mitigating - (1) if intoxication is not habitual, or (2) if intoxication is not subsequent to the plan to commit a felony.

B. Aggravating - (1) if intoxication is habitual; or (2) if it is intentional (subsequent to the plan to commit a felony).

It is intentional when the offender drinks liquor fully knowing its effects, to find in the liquor a stimulant to commit a crime or a means to suffocate any remorse.

The accused’s state of intoxication must be proved.

Drunkenness must affect mental faculties

- the amount of wine taken must be of such quantity as to blur the offender’s reason and deprive him of self-control.

Note: If he was aware of everything that occurred on that day and he was able to give a detailed account thereof, intoxication is not mitigating.

“When the intoxication is habitual,”

- a habitual drunkard is one given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed, but it is not necessary that it be continuous or by daily occurrence.

Reasons for alternative circumstance of intoxication.

- as a mitigating circumstance, it finds its reason in the fact that when a person is under the influence of liquor, his exercise of will power is impaired.

- as an aggravating circumstance, because it is intentional, the reason is that the offender resorted to it in order to bolster his courage to commit a crime.

- it is aggravating when intoxication is habitual, because the constant use of intoxicating liquor lessens the individual resistance to evil thoughts and undermines the will power making himself a potential evildoer against whose activities, society has the right for its own protection to impose a more severe penalty.

Presumption is that intoxication is accidental.

- in the absence of proof to the contrary, it will be presumed that intoxication is not habitual but accidental, and the fact that the accused was drunk at the time of the commission of the crime must then be considered as a mitigating circumstance.

III. Degree of instruction and education of the offender.

- low degree of instruction and education or lack of it is generally mitigating. High degree of instruction and education is aggravating, when the offender avails himself of his learning in committing the crime.

Lack of sufficient intelligence is required in illiteracy.

- not illiteracy alone, but also lack of sufficient intelligence are necessary to invoke the benefit of the alternative circumstance of lack of instruction, the determination of which is left to the trial court.

Lack of instruction must be proved by the defense.

The question of lack of instruction cannot be raised for the first time in the appellate court.

- it is the trial court rather than the appellate court to find and consider the circumstance of lack of instruction.

Ordinarily, low degree of lack of instruction is mitigating in all crimes.

Exception:

1. Not mitigating in crimes against property, such as estafa, theft, robbery, arson.

2. Not mitigating in crimes against chastity, such as rape and adultery. No one is so ignorant as not to know that the crime of rape is wrong and in violation of the law.

3. Lack of education and instruction cannot mitigate in the crime of murder because to kill is forbidden by natural law which every rational being is endowed to know and feel.

High degree of instruction is aggravating.

High degree of instruction is aggravating when the offender availed himself or took advantage of it in committing the crime.