Aggravating Circumstances

AGGRAVATING CIRCUMSTANCES  Those circumstances which raise the penalty for a crime in its maximum period provided by law applicable to that crime or change the nature of the crime.  Note: The list in this Article is EXCLUSIVE – there are no analogous aggravating circumstances.  The aggravating circumstances must be established with moral certainty, with the same degree of proof required to establish the crime itself  According to the Revised Rules of Criminal Procedure, BOTH generic and qualifying aggravating circumstances must be alleged in the Information in order to be considered by the Court in imposing the sentence. (Rule 110, Sec. 9)  Basis 1. the motivating power behind the act 2. the place where the act was committed 3. the means and ways used 4. the time 5. the personal circumstance of the offender and/or of the victim Kinds 1. GENERIC – Those that can generally apply to all crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19, and 20 except ―by means of motor vehicles. A generic aggravating circumstance may be offset by a generic mitigating circumstance. 2. SPECIFIC – Those that apply only to particular crimes. Nos. 3 (except dwelling), 15, 16, 17 and 21. 3. QUALIFYING –Those that change the nature of the crime. Art. 248 enumerates the qualifying AC which qualify the killing of person to murder. If two or more possible qualifying circumstances were alleged and proven, only one would qualify the offense and the others would be generic aggravating. (ASKED TWICE BAR EXAMS) 4. INHERENT – Those that must accompany the commission of the crime and is therefore not considered in increasing the penalty to be imposed such as evident premeditation in theft, robbery, estafa, adultery and concubinage. 5. SPECIAL – Those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances such as: a. quasi-recidivism (Art. 160) b. complex crimes (Art. 48) c. error in personae (Art. 49) d. taking advantage of public position and membership in an organized/syndicated crime group (Art. 62) Generic aggravating circumstances

Qualifying aggravating

The effect of a generic AC, not offset by any mitigating circumstance, is to increase the penalty which should be imposed upon the accused to the MAXIMUM PERIOD.

It is not an ingredient of the crime. It only affects the penalty to be imposed but the crime remains the same

The circumstance can be offset by an ordinary mitigating circumstance

circumstances The effect of a qualifying AC 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. The circumstance affects the nature of the crime itself such that the offender shall be liable for a more serious crime. The circumstance is actually an ingredient of the crime Being an ingredient of the crime, it cannot be offset by any mitigating circumstance

Aggravating circumstances which do not have the effect of increasing the penalty: 1. Aggravating circumstances which in themselves constitute a crime especially punishable by law. 2. Aggravating circumstances which are included by the law in defining a crime and prescribing the penalty therefore shall not be taken into account for the purpose of increasing the penalty. (Art. 62, par. 1). 3. 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). Aggravating circumstances which are personal to the offenders 1. Aggravating circumstances which arise: 2. from moral attributes of the offender; 3. from his private relations with the offended party; or 4. from any personal cause, shall only serve to aggravate the liability of the principals, accomplices, accessories as to whom such circumstances are attendant. (Art. 62, par. 3). Aggravating circumstances which depend for their application upon the knowledge of offenders The circumstances which consist 1. in the material execution of the act, or

2. in the means employed to accomplish it, shall serve to aggravate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. (Art. 62, par. 4). TWENTY-ONE aggravating circumstances under Art. 14: 1. Taking Advantage of Public Office 2. In Contempt Of Or With Insult To Public Authorities 3. With Insult Or Lack Of Regard Due To Offended Party By Reason Of Rank, Age Or Sex 4. Abuse Of Confidence And Obvious Ungratefulness 5. Crime In Palace Or In Presence Of The Chief Executive 6. Nighttime; Uninhabited Place; With A Band 7. On Occasion Of A Calamity 8. Aid Of Armed Men Or Means To Ensure Impunity 9. Recidivism 10. Reiteration or Habituality 11. Price, Reward Or Promise 12. Inundation, Fire, Poison 13. Evident Premeditation 14. Craft, Fraud Or Disguise 15. Superior Strength Or Means To Weaken Defense 16. Treachery 17. Ignominy 18. Unlawful Entry 19. Breaking Wall, Floor, Roof 20. With Aid Of Persons Under 15 By Motor Vehicle 21. Cruelty Taking Advantage of Public Office Par. 1 – ―that advantage be taken by the offender of his public position  This is applicable only if the offender is a public officer.  The public officer must: 1. Use the influence, prestige or ascendancy which his office gives him 2. As 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?‖(U.S. v. Rodriguez) When a public officer 1. commits a common crime independent of his official functions and 2. does acts that are not connected with the duties of his office, 3. he should be punished as a private individual without this aggravating circumstance.  Even if defendant did not abuse his office, if it is proven that he has failed in his duties as such public officer, this circumstance would warrant

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the aggravation of his penalty. Thus, the fact that the vice-mayor of a town joined a band of brigands made his liability greater. The circumstance cannot be taken into consideration in offenses where taking advantage of official position is made by law an integral element of the crime such as in malversation (Art. 217) or falsification of public documents under Art. 171. Taking advantage of public position is also inherent in the following cases: 1. Accessories under Art. 19, par. 3 (harboring, concealing or assisting in the escape of the principal of the crime); and 2. Title VII of Book Two of the RPC (Crimes committed by public officers)

In Contempt of or With Insult to Public Authorities  Par. 2 – ―that the crime be committed in contempt of or with insult to the 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 his 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.  Public Authority / Person in Authority – is a person directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws. The councilor, mayor, governor, barangay captain, barangay chairman etc. are persons in authority. (Art. 152, as amended by P.D. 1232) o A school teacher, town municipal health officer, agent of the BIR, chief of police, etc. are now considered a person in authority.  Par. 2 is not applicable if committed in the presence of an agent only such as a police officer.  Agent - A subordinate public officer charged with the maintenance of public order and the protection and security of life and property, such as barrio policemen, councilmen, and any person who comes to the aid of persons in authority. (Art. 152, as amended by BP 873).  Knowledge that a public authority is present is essential. Lack of such knowledge indicates lack of intention to insult public authority.  If crime is committed against the public authority while in the performance of his duty, the offender commits direct assault without this aggravating circumstance.

With Insult or Lack of Regard Due to Offended Party by Reason of Rank, Age or Sex  Par. 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 is be committed in the dwelling of the offended party, if the latter has not given provocation. o Four circumstances are enumerated in this paragraph, which can be considered singly or together. o If all the 4 circumstances are present, they have the weight of one aggravating circumstance only. o 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. o Disregard of rank, age or sex may be taken into account only in crimes against persons or honor  RANK OF THE OFFENDED PARTY o Designation or title used to fix the relative position of the offended party in reference to others. There must be a difference in the social condition of the offender and the offended party.  AGE OF THE OFFENDED PARTY o May refer to old age or tender age of the victim.  SEX OF THE OFFENDED PARTY o This refers to the female sex, not to the male sex. o The aggravating circumstance is NOT to be considered in the following cases: 1. When the offender acted with passion and obfuscation. (People v. Ibanez) 2. When there exists a relationship between the offended party and the offender. (People v. Valencia) 3. When the condition of being a woman is indispensable in the commission of the crime. Thus, in rape, abduction, or seduction, sex is not aggravating. (People v. Lopez)  DWELLING (Morada) o Building or structure, exclusively used for rest and comfort. Thus, in the case of People v. Magnaye, a ―combination of a house and a store, or a market stall where the victim slept is not a dwelling. o This is considered an AC because in certain cases, there is an abuse of confidence which the offended party reposed in the offender by opening the door to him.

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Dwelling need not be owned by the offended party. It is enough that he used the place for his peace of mind, rest, comfort and privacy. Dwelling should not be understood in the concept of a domicile: A person has more than one dwelling. So, if a man has so many wives and he gave them places of their own, each one is his own dwelling. If he is killed there, dwelling will be aggravating, provided that he also stays there once in a while. If a crime of adultery was committed. Dwelling was considered aggravating on the part of the paramour. However, if the paramour was also residing in the same dwelling, it will not be aggravating. The offended party must not give provocation. When a crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be appreciated as an aggravating circumstance. Provocation in the aggravating circumstance of dwelling must be: 1. given by the offended party 2. sufficient, and 3. immediate to the commission of the crime. 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. Dwelling includes dependencies, the foot of the staircase and the enclosure under the house.

Dwelling is not aggravating in the following cases: 1. When both offender and offended party are occupants of the same house even if offender is a servant of the house. 2. When the robbery is committed by the use of force things, dwelling is not aggravating because it is inherent. a. But dwelling is aggravating in robbery with violence or intimidation of persons because this class or robbery can be committed without the necessity of trespassing the sanctity of the offended party‘s house. 3. In the crime of trespass to dwelling, it is inherent or included by law in defining the crime. 4. When the owner of the dwelling gave sufficient and immediate provocation. (Art. 14 par. 3)

Abuse of Confidence and Obvious Ungratefulness Par. 4 – ―That the act be committed with abuse of confidence or obvious ungratefulness  Par. 4 provides two aggravating circumstances. If present in the same case, they must be independently appreciated. a. ABUSE OF CONFIDENCE (Abuso de confianza) 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.  The confidence between the offender and the offended party must be immediate and personal.  It is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315) and qualified seduction. (Art. 337). b. 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.  The ungratefulness must be obvious: (1) manifest and (2) clear.  In a case where the offender is a servant, the offended party is one of the members of the family. The servant poisoned the child. It was held that abuse of confidence is aggravating Crime in Palace or in Presence of the Chief Executive 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  If it is the Malacañang palace or a church it is aggravating regardless of whether State or official or religious functions are being held. o The President need not be in the palace. o His presence alone in any place where the crime is committed is enough to constitute the AC. o It also applies even if he is not engaged in the discharge of his duties in the place where the crime was committed.  Note: Offender must have the intention to commit a crime when he entered the place. o Cemeteries are not places dedicated for religious worship Par. 2 Contempt or insult to public

Par. 5 Where public authorities are

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engaged in the discharge of their duties. Public authorities are engaged in the performance of their duties. Public duty is Public duty is performed in their performed outside of office their office The offended party The public authority may should not be the or may not be the offended party public authority Nighttime (Nocturnidad); Uninhabited Place (Despoblado); With a Band (Cuadrilla) Par. 6 ―That the crime be committed in the night time, 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. 

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These 3 circumstances may be considered separately: 1. when their elements are distinctly perceived and 2. can subsist independently, 3. revealing a greater degree of perversity. Requisites: 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.

a. NIGHTTIME (Nocturnidad)  The commission of the crime must begin and be accomplished in the nighttime (after sunset and before sunrise). o Nighttime by and of itself is not an aggravating circumstance. o The offense must be actually committed in the darkness of the night. o When the place is illuminated by light, nighttime is not aggravating. o Nighttime need not be specifically sought for when:  the offender purposely took advantage of nighttime; or  it facilitated the commission of the offense. b. UNINHABITED PLACE (Desplobado) o It is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place of the commission of

the offense, there was a reasonable possibility of the victim receiving some help. o Solitude must be sought to better attain the criminal purpose. o The offenders must choose the place as an aid either (1) to an easy and uninterrupted accomplishment of their criminal designs, or (2) to insure concealment of the offense, that he might thereby be better secured against detection and punishment c. BAND (Cuadrilla)  There should 1. Be at least be four persons 2. At least 4 of them should be armed 3. and are principals by direct participation.  This aggravating circumstance is absorbed in the circumstance of abuse of superior strength.  This is inherent in brigandage.  The armed men must have acted together in the commission of the crime. On Occasion of a Calamity Par. 7. ―That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. 

The rationale for this AC is the debased form of criminality of one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune and despoiling them. o The offender must take advantage of the calamity or misfortune. o OR OTHER CALAMITY OR MISFORTUNE– refers to other conditions of distress similar to ―conflagration, shipwreck, earthquake or epidemic.

Aid of Armed Men or Means to Ensure Impunity (Auxilio de Gente Armada) Par. 7 ―That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune 

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Requisites: 1. That the armed men or persons took indirectly part in the commission of the crime, 2. the accused availed himself of their aid or relied upon them when the crime was committed. Not applicable – o When both the attacking party and the party attacked were equally armed. o When the accused as well as those who cooperated with him in the commission

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of the crime acted under the same plan and for the same purpose. Casual presence, or when the offender did not avail himself of their aid nor knowingly count upon their assistance in the commission of the crime.

Par. 6 By a band Requires more than 3 armed malefactors Requires that more than three armed malefactors shall have acted together in the commission of an offense Band members are all principals

Par. 8 With aid of armed men At least two armed men This circumstance is present even if one of the offenders merely relied on their aid, for actual aid is not necessary Armed men are mere accomplices

Recidivism (Reincidencia) Par. 8 ―That the crime be committed with the aid of armed men or persons who insure or afford impunity 

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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. Different forms of repetition or habituality of offender: a. Recidivism under Article 14 (9)—The offender at the time of his trial for one crime shall have been previously convicted by final judgment of another embraced in the same title of the Revised Penal Code. b. Repetition or reiteracion under Article 14 (9)—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. c. Habitual delinquency under Article 62 (5)—The offender within a period of 10 years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, is found guilty of any of the said crimes a third time or another. d. Quasi-recidivism under Article 160— Any person who shall ` a felony after having been convicted by final judgment before beginning to serve such

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sentence or while serving such sentence shall be punished by the maximum period prescribed by law for the new felony In recidivism, the crimes committed should be felonies. There is no recidivism if the crime committed is a violation of a special law. What is controlling is the time of the trial, not the time of the commission of the offense o What is required is previous conviction at the time of the trial. o The best evidence of a prior conviction is a certified copy of the original judgment of conviction, and such evidence is always admissible and conclusive unless the accused himself denies his identity with the person convicted at the former trial. o At the time of the trial means from the arraignment until after sentence is announced by the judge in open court. Recidivism does not prescribe. No matter how long ago the offender was convicted, if he is subsequently convicted of a crime embraced in the same title of the Revised Penal Code, it is taken into account as aggravating in imposing the penalty. Pardon does not erase recidivism, even if it is absolute because it only excuses the service of the penalty, not the conviction. However, if a person was granted an amnesty, and thereafter he is convicted of another crime of the same class as the former crimes, his former conviction would not be aggravating. According to Art. 89, amnesty extinguishes not only the penalty but also its effects. If the offender has o already served his sentence and o he was extended an absolute pardon,  the pardon shall erase the conviction including recidivism because there is no more penalty  so the pardon shall be understood as referring to the conviction or the effects of the crime.

Reiteracion/Habituality Par. 10 ―That the offender has been previously punished by 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 

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: a. an equal or b. greater penalty, or

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for 2 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. In Reiteracion or Habituality, it is essential that the offender be previously punished; that is, he has served sentence. Par. 10 speaks of o penalty attached to the offense, o not the penalty actually imposed

Par. 9 Recidivism It is enough that a final judgment has been rendered in the first offense. Requires that the offenses be included in the same title of the Code Always to be taken into consideration in fixing the penalty to be imposed upon the accused Rationale is the proven tendency to commit a similar offense Art. 14, Par. 9 Recidivism Two convictions are enough The crimes are not specified; it is enough that they may be embraced under the same title of the Revised Penal Code

There is no time limit between the first conviction and the subsequent conviction. Recidivism is imprescriptible.

Par. 10 Reiteracion It is necessary that the offender shall have served out his sentence for the first offense. The previous and subsequent offenses must not be embraced in the same title of the Code Not always an aggravating circumstance Rationale is the proven resistance to rehabilitation Art. 62 par. 5 Habitual Delinquency At least three convictions are required The crimes are limited and specified to: a. serious physical injuries, b. Less serious physical injuries, c. robbery, d. theft, e. estafa or swindling and f. falsification There is a time limit of not more than 10 years between every conviction computed from the first conviction or release from punishment thereof to conviction computed from the second conviction or release therefrom to

the third conviction and so on

It is a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. If not offset, it would only increase the penalty prescribed by law for the crime committed to its maximum period

Habitual delinquency is a special aggravating circumstance, hence it cannot be offset by any mitigating circumstance. Aside from the penalty prescribed by law for the crime committed, an additional penalty shall be imposed depending upon whether it is already the third conviction, the fourth, the fifth and so on

Prize, Reward or Promise Par. 11 ―That the crime be committed in consideration of a price, reward, or promise. 

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When this AC is present, there must be 2 or more principals: 1. the one who gives or offers the price or promise; and 2. the one who accepts it. Both of whom are principals to the former, because he directly induces the latter to commit the crime, and the latter because he commits it. When this AC is present, it affects not only the person who received the price or reward, but also the person who gave it. The evidence must show that one of the accused used money or valuable consideration for the purpose of inducing another to perform the deed. If without previous promise it was given voluntarily after a crime was 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: o Need not consist of or refer to material things; or o That the same were actually delivered,  it being sufficient that the offer made by the principal by inducement was accepted by the principal by direct participation before the commission of the offense.

lInundation, Fire, Poison

Par. 12 – ―That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin. o Unless used by the offender as a means to accomplish a criminal purpose, any of the circumstances in paragraph 12 cannot be considered to increase the penalty or to change the nature of the offense. o When another AC already qualifies the crime, any of these AC‘s shall be considered as generic aggravating circumstance only. o Fire is not aggravating in the crime of arson. o Whenever a killing is done with the use of fire, as when you kill someone, you burn down his house while the latter is inside, this is murder. If the intent is to destroy property - the crime is arson even if someone dies as a consequence. If the intent is to kill - there is murder even if the house is burned in the process. When used as means to kill another person, the crime is murder 1. By means of fire o In order to constitute murder, there should be an actual design to kill and that the use of fire should be purposely adopted as a means to that end. (U.S. v Burns) o If the purpose of the explosion, inundation, fire or poison is to kill a predetermined person, the crime committed is murder. Once any of these circumstances is alleged in the information to qualify the offense, it should not be considered as generic aggravating circumstance for the purpose of increasing the penalty, because it is an integral element of the offense. 2. By means of explosion o The offense is a crime of destruction. (Art. 324) If one of the people there died, but there is no intent to kill on the part of the offender, it will be a crime involving destruction also, but the penalty will be death. But if there is intent to kill and explosion is used by the offender to accomplish his criminal purpose, it is murder if the victim dies as direct consequence thereof. 3. By means of derailment of locomotive o Under Art. 330, which defines and penalizes the crime of damage to means of

communication, derailment of cars, collision or accident must result from damage to a railway, telegraph or telephone lines. But

this is without prejudice to the criminal liability for other consequences of criminal act