crim-1-inigo.doc

THE FRATERNAL ORDER OF ST. THOMAS MORE

CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

REVISED PENAL CODE OF THE PHILIPPINES ACT NO. 3815 AN ACT REVISING THE PENAL CODE OF THE OTHER PENAL LAWS (December 8, 1983)

Preliminary Article – This law shall be known as “The Revised Penal Code.” BOOK ONE General provisions regarding the date of enforcement and application of the provision of this code, and regarding the offenses, the persons liable and the penalties. Preliminary Title and application of the provision of this code.

Article 1. Time when Act takes effect. — This Code shall take effect on the first day of January, nineteen hundred and thirty two.

Criminal law is defined simply as that branch or division in the study of law which defines crimes, treats of their nature, and provides for their punishment. It defines crimes: We are familiar with the Criminal Law axiom nullum crimen , nulla poena sine lege, that there is no crime where there is no law punishing an act or omission as a crime. It tells us what is punishable and what is not punishable. Treats of their nature: Crimes belong to different classes. In Book II alone, crimes are divided or classified into 13 classifications – from Crimes Against National Security and the Laws of Nations, to Quasi-offenses, Crimes Against Honor, etc. And there are many classifications of penalties, like the consummated, attempted, and frustrated, the grave, less grave and the light felony. These are what you call nature of crimes. We are concerned not only of crimes under the Penal Code, but this includes those acts punishable under special laws. So, you must understand the nature of each. Each one has its on special rules to be followed. Provides for their penalty: One of the weaknesses of bar candidates is the law on penalties. They are afraid of computation. But you cannot avoid this because whether you like it or not, the law on penalties is part and parcel of the Revised Penal Code. Question: What are the sources of criminal law? Answer: There are only two known sources of criminal law:  Revised Penal Code (Act 3815), as amended; and ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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THE FRATERNAL ORDER OF ST. THOMAS MORE

CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Special Laws – (Anti-graft; Dangerous Drugs Act, etc.) But actually, if you analyze it, there is only one source, the law itself. Because the Revised Penal Code is the general law; but, definitely common sense would tell us that not all crimes in the Philippines are found in the Revised Penal Code. There are crimes that are found in various special laws. 

Question: Why is it that there is only one source of criminal law, because in the final analysis, there is only one source - the law itself? Answer: You back to back in nullum crimen, nulla poena sine lege. There is no crime if there is no law that penalizes an act or omission as a crime. Question: Is there such thing as a common law crime? Answer: There is no such thing as common law crime because law is based on customs and tradition. There is no such thing as crimes by tradition in the Philippines. Tradition or custom itself does not create a crime, but the law itself must provide and penalize an act as a crime. Question: Is the Constitution a source of criminal law? Answer: No, because it does not define “crime”, nor provide penalty. You still have to hear of an information filed in court for the violation of the Constitution. The Constitution is the source of many rights of an accused, but you cannot find any crime defined and penalized in the Constitution. So, theoretically, the Constitution is not a source of criminal law.

CHARACTERISTICS OF CRIMINAL LAW: 1. General; 2. Territorial; 3. Prospective

Generality: Philippine criminal laws are binding on all persons who live and sojourn in the Philippine territory – when one commits a crime in the Philippines, whether he is a resident citizen, alien, a transient, or tourist, he is subject to prosecution before Philippine courts. That is what you mean by general character of criminal law. Questions: Are there exceptions? Are there people who are in the Philippines who commit criminal act, but are immune? Answer: By way of exception, yes. There are two: 1.

Those who are exempt by virtue of the principle of Public International Law.

These are the:   Example:

Heads of State; and Diplomatic officials

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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THE FRATERNAL ORDER OF ST. THOMAS MORE

CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

President Bush went to the Philippines on a state visit, and upon landing in Manila, the first thing he did was to molest somebody. Can he be accused of acts of lasciviousness or rape? No. He cannot even be arrested and charged before our courts because he is a head of state. He is immune. You also cannot arrest anybody who holds a diplomatic rank, whether he be a diplomat of any nation, or an ambassador, ministers plenipotentiary, ministers residents, or charge d’ affairs. These are the people who are exempt.

SCHNECKENBURGER vs. MORAN 63 Phil. 250 Held: It is well settled that a consul is not entitled of the privileges and immunities of an ambassador or minister, but is subject to the laws and regulations of the country of which he is accredited. A consul does not represent the political interests. In the absence of a treaty to the contrary, a consul is not exempt from criminal prosecution for violations of the laws of the country where he resides. 2.

Those are exempt by virtue of treaties.

When the Philippines enters into a treaty with a foreign country and grants immunity from criminal prosecution of its nationals by agreement – the best example of such a treaty was the former USRP Military Bases Agreement where for certain crimes committed in the Philippines by American Servicemen who were discharging their official duties, they could not be charged in Philippine Courts. They could be charged by the United States under their laws. We cannot do anything about that because we agreed to it. That is a treaty. The principle of generality and its exceptions are clearly expressed in the Civil Code of the Philippines which states: ARTICLE 14, CIVIL CODE: Penal laws and those of public security and safety shall be obligatory upon all who live and sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations.

Territoriality: This means that penal laws of the Philippines are enforceable only within its territory. We cannot enforce them outside of the Philippines if the crime was committed outside. PROBLEM: A and B are Filipino citizens. They took a tour on Japan. When they were in the tour, A attacked B in Tokyo, inflicting upon B physical injuries. When B came back here, the first thing he did was to file a case of physical injuries against A, in Philippine courts. Question: Can the Philippine courts try the case of physical injuries, because anyway both parties are residents of the Philippines.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Answer: No, because even if the crime of physical injuries will be admitted by A, it did not happen here. It happened in Japan. We cannot enforce our Revised Penal Code for the crime committed outside of Philippine territory. Question: What is the difference between generality and territoriality? Answer: They are almost the same. General characteristics, it is enforceable upon everyone who resides or visits or sojourns in the country. Territorial characteristics is enforceable only for crimes committed in the Philippines. They may appear to be overlapping, but there is a slight difference. In general characteristics of criminal law, the emphasis is on the offender, the person who commits the crime, whether he is a reside alien or not, tourist of citizen – the emphasis is the person who commits the crime. But territorial characteristic, the emphasis is upon place only. However, the territorial character of criminal law has known exceptions. Meaning, even if the crime committed is outside Philippine Territory, the offender can still be charged under Philippine laws and tried by our courts, even of the act was not committed here. There are supposed to be five exceptions to the territorial characteristic of criminal law. These exceptions are found in Article 2 of the Revised Penal Code. Prospectivity: This means that crimes are punished under the law in force at the time of their commission. So, if the act becomes a crime today because the law itself fixed it such that it be considered a crime today, you cannot prosecute a person who had done the act yesterday. Criminal law looks forward. That is the general rule. Question: May a penal law be given retroactive effect? Answer: Yes, when a law is more favorable to the accused. An example of such penal statue is if a new law reduces the penalty of your offense. Example: You commit a crime punishable by 5 years imprisonment. Now, there is a new law reducing the penalty of 5 months. Question: Can the offender claim now, that upon conviction is penalty should be 5 months? Answer: Yes, he is covered and he can claim it.

ORDOÑEZ vs. VINARO Facts: Somebody was found guilty of selling marijuana. The law in force at the time of the offense was the Dangerous Drugs Act (RA 6425), which penalizes the selling of marijuana with life imprisonment. The convict had been serving sentence since 1986.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

In 1995, RA 7659, or the Heinous Crime Law, was passed amending, among others, RA 6425. This new law provides for a penalty, which depend upon the number of grams or sticks of marijuana that is sold. Insofar as this particular convict is concerned, the law had the effect of reducing his sentence, considering that he sold only two sticks of marijuana. Held: The new law should be given retroactive application because it is favorable to the convict. The Director of Bureau of Prisons was ordered to release the convict from the National Penitentiary. But there are exceptions to the exceptions. Meaning, even if favorable, it will not be given retroactive effect. You then go back to the general rule. 1.

If the new law is expressly made inapplicable to pending actions or causes of action. If the law is silent, it should be given retroactive effect if favorable. Supposing the law will say that it is not applicable to pending actions. None, even if it is favorable, it will not be given retroactive effect. Meaning, the law provides for non-retroactivity. That is why such a provision must be express. 2.

Where the offender is a habitual delinquent under Article 65, of the Revised Penal Code.

CONSTRUCTION OF PENAL LAWS If there is doubt, the doubt is resolved in favor of the accused (doctrine of pro reo), thus, applying the constitutional presumption of innocence. But this rule of construction is applied only where the law is ambiguous, and there is doubt as to its interpretation. Where the law is clear, there is no room for application of this rule. But there is also rule of construction. In the construction or interpretation of the provisions of the Revised Penal Code, the Spanish text is controlling because the Philippine Legislature in its Spanish text approved the Code. This was the language of the lawmakers in expressing the intent of the law. If there is a conflict between the English version and the Spanish version of the Revised Penal Code, the Spanish text shall prevail.

PEOPLE vs. MANGULABNAN 99 Phil. 993 Facts: During the robbery in a dwelling house, one of the culprits fired his gun upward in the ceiling, not knowing that the owner of the house was hiding the ceiling. The owner was hit by the slug that passed though it and was killed unintentionally. Article 294 (1) of the Revised Penal Code provides that the crime is robbery with homicide “when by reason or an occasion of the robbery, the crime of homicide shall have been committed”. The Spanish text of the same provision reads: “cuando con motivo o occasion del robo resultare homicido”.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Held: In view of the Spanish text which must prevail, the crime is robbery with homicide supervened by mere accident.

BRIEF HISTORY OF THE REVISED PENAL CODE The Revised Penal Code originated from the old Spanish Penal Code of 1887 which took effect in July 14,1887. And that was the prevailing law up to the coming of the Americans. The Americans did not touch the Penal Code and the Civil Code. They introduced law especially on criminal procedure, but the substantive law remained the same. However, sometime in 1914, there was an attempt by the government to change the Old Spanish Penal Code. And the government commissioned a Committee, chaired by Rafael del Pan, to draft a new law. That Committee came out with a proposed law to replace the old Penal Code. The proposed law was called the Proposed Correctional Code of del Pan. However, the draft was never acted up by the Philippine Legislature. About ten years later, the government created another Committee which was given instructions to revise the Old Penal Code. The Committee was chaired by Anacleto Diaz, with the following members:    

Quintin Paredes Guillermo Gueverra Alex Reyes Mariano de Joya

The committee came out with their draft and the Philippine Legislature passed it into law on December 8, 1930 and became effective on January 1, 1932. It came to be known as Act 3815, or the Revised Penal Code. So, the Revised Penal Code has been effective for 75 years already. It has undergone several amendments, but the basic structure of the law is the same. During the late 1940’s, there was an attempt to redraft the Revised Penal Code (RPC). The committee charged came out with the proposed Code of Crimes, which, however, was not passed by Congress. And in late 1970’s, the UP Law Center came out with another draft which was also called he Code of Crimes. It was submitted to the Batasang Pambansa but to no avail. In 1995, the then Congress passed another bill – to be called the code of Crimes again. Although it is different one from the previous drafts. It was sponsored by Congressman Sergio Apostol. He conducted public hearings, including in Davao, but still remains to be seen whether the bill will be finally enacted into law.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

In other words, there have been several attempts to amend or replace the RPC for the past 75 years. It has passed the test of time, it is a very durable law.

THEORIES UNDERLYING THE REVISED PENAL CODE Every country in the world has its system of penology. Every country has its own theory of what is a crime. How did it start? It depends upon the orientation of that country. But it is admitted that in criminal jurisprudence anywhere in the world, there are two basic schools of thought or theories underlying Criminal Law. The Classical Theory This is the older one. It is called the Traditional Theory because it is the one that is older that the positivist Theory, which is a more modern thought. What we should remember here are the basic principles underlying the Classical Theory. What to Classicists advocate? What do they say about crimes, about criminals/ The Classicist’s Theory: Man is a rational being. If he is a rational being, he can distinguish right from wrong. If he commits a crime, such as murder, he assumes he knows that he is wrong. Since he knew that it was wrong, he must prepare himself for the consequences of what he did. That is the theory of the Classicists and crimes vary. There us a serious one; there is the not-so-serious one, and there are slight ones. There should be a mechanical proportion between the crime and the penalty. That is why the penalty in the RPC on sight physical injuries is not the same penalty as in murder. Otherwise, there must be a disproportion. If you punish murder wit death and punish also physical injuries with death, there is a disproportion. The Positivist Theory The positivist advocate that we cannot simply consider a crime as permanently governed or continuously governed by laws. Meaning, we have to take into consideration the environment, the social conditioning of persons and therefore it is wrong to simply fix a predetermined penalty for a crime, because there are so many factors to consider. At least, the basic difference between the two theories is on their emphasis. Difference:

The Classical Theory gives more emphasis upon the ACT committed rather that the actor. Whereas, the Positivist Theory gives more emphasis on the ACTOR rather than the act. There is a focus of ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

attention on the DOER rather than on what he did. The focus on Classical Theory is on WHAT HE DID rather than the actor. Question: Upon which of these two schools of thought is the RPC based? Answer: The RPC is almost 80% reproduction of the Penal Code of Spain. Since the Spanish Penal Code is based on the Classical Theory, necessarily our RPC is based on the Classical Theory of Criminal Law. There were certain changes introduced by the RPC. Certain Positivist provisions were inserted. The framers of the RPC had the complete authority to throw away the Spanish Penal Code. But they were cautious, they were not prepared. They came basically with the Spanish Penal Code, revised. So, they still adhered to the structure of the Spanish Penal Code. That is why our RPC is still the Classical Theory.

Art. 2. Application of its provisions. — Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code.

The phrase except as provided in treaties or laws of preferential application. These are so called Exceptions to the General Characteristics of Criminal Law. Meaning, the RPC is binding on all who live and sojourn in the Philippines, except people who are not covered by the RPC due to treaty stipulations, because laws of preferential application. Question: What does “Philippine Territory” cover? Answer: The first paragraph of the RPC in Article 2 expresses the Territorial Principle: “Philippine territory” comprises the Philippine Archipelago, its atmosphere, the space above it, subject to the aviation rights of other countries. During that time, the concept of outer space is not yet recognized. That is beyond the territory of any country. There is only a certain limit in territorial waters. Only a portion of the sea is considered as Philippine Territory. These are all parts of public international law. Question: What is the accepted radius?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Answer: It used to be three miles, then it became six. Now, it is twelve miles. It also covers the Economic Zone, such as the Spratlys. That is not part of its economic zone. China, Vietnam, Taiwan are also claiming it. That might become source of war. That is Philippine Territory. As a general rule, the RPC and the other Penal Laws can only be enforced within Philippine Territory. They cannot be enforced outside. There are five exceptions to the territorial character of Criminal Law. Question: When may the provisions of the RPC be enforced outside Philippine Territory? What are the exceptions to the territorial nature of the RPC? In what instances may the provisions of the RPC be given EXTRATERITORIAL effect? Answer: 1. Should commit an offense while on a Philippine ship or airship The term “airship” instead of “airplane” was used because at the time of the drafting of the RPC, there were no commercial planes yet. The means of transportation then were the dirigibles, those that look like ballons (the Lindenburg of American accident fame). That is what they mean by the term ‘airship”.

A ship or airship, which is of Philippine registry, is considered as Philippine territory. PROBLEM: Mr. A, while on board a Philippine vessel anchored at the Davao Guld in Sasa, commits a crime against Mr. B on board that vessel. Question: Are the provisions of the RPC applicable? Answer: Yes, because the crime was committed in Philippine territory. Sasa is not yet outside of Philippine territory. That is covered by the opening paragraph, because the crime was committed within the Philippine territorial waters. So, the reason is not based of the opening paragraph of Article 2. Question: What is Paragraph 1? Answer: That is when the ship is outside the Philippines. What gives jurisdiction to the Philippines is not the fact that crime was committed on board a Philippine ship under paragraph 1, but because of the fact that it was committed in Philippine Territory, because it falls under the exception. This is one of the instances, when RPC may be given extraterritorial effect.

So, paragraph 2 refers to a ship already outside of the Philippine territory. IF the problem says that the ship is in the middle of Pacific Ocean, does Philippine law apply? Yes, because the crime was committed on board a Philippine vessel. Even if it is outside of the Philippine Territory, it falls under the exception. This is one of the instances when RPC may be given extraterritorial effect. The same thing with airplanes. The plane is flying in the middle of the atmosphere over the Pacific Ocean, between the united States and the Philippines. If the crime is committed aboard that plane, the crime is traible in the Philippines. That is an exception also.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

We have no problem if the crime is committed on board a Philippine ship or airplane, while outside of the Philippines, flying or sailing, as the case may be, in international waters or airspace. The problem comes in if the crime is committed on board a Philippine ship outside the Philippines where it is anchored and it is under the territory of another country.

Question: Suppose, a Japanese vessel is in the middle of the Pacific Ocean, and a Japanese crewmember killed another Japanese crewmember. Whose law shall be applied on the prosecution of crime? Answer: I do not know, and I do not care. It did not happen in our territory. It did not happen in our ship or airship. Presumable, it is the Japanese law, but I do not know the Japanese law. But if a Philippine ship was in the middle of the Pacific Ocean and a crime was committed on board it, no country will assume any interest there.

Question: Was it committed in the Philippine territory? Answer: Of course not, the crime took place while the vessel was in the middle of the Pacific Ocean. Question: Can the crime be tried in the Philippines? Answer: Yes, because of Article 2(1). The crime was committed outside Philippine territory, but on board a Philippine ship. But the problem in paragraph 1 comes in when the crime is committed on board a Philippine ship while the same is in the territory of another country. For example: While a Philippine ship is anchored in Tokyo Bay, or a PAL plane is about to land at the Narita Airport in Tokyo, a passenger killed another passenger. Questions: Where will the crime be tried? Suppose the Philippine would say, “we should try this here in the Philippines because the crime took place on board of a Philippine ship or airship’. Is that correct? Answer: Yes, based on Article 2(1). But suppose Japan would say, “No, the crime is triable by our courts because it was committed in Japanese territory. That is also correct. How do you resolve that issue? Both sides have legal issue. That kind of problem has been in existence for hundreds of years now. That is why it gave rise to two sets of rules: 1. The English Rule 2. The French Rule

The English Rule This holds the view that a crime is committed on board a foreign vessel while that vessel is in the territory of another country, the crime shall be tried under the law of the territory where it is committed. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Except when the crime is minor, something which affects or involves only the internal management of the vessels, in which case, it would be tried in the country under whose flag the vessel navigates or where it is registered.

The French Rule It came out an opposite view. The French believe that if a crime is committed on board a foreign vessel while the same is anchored in another country, the crime should be tried not in that country, but in the home state of the vessel. Except if it affects the peace, security, and safety of the territory where the crime was committed, in which case it should be tried here. So, the only difference is that the English Rule makes the territorial principle of criminal law as the general rule and the extraterritorial principle as the exception, whereas the French Rule holds opposite view. It is actually a set of inverse rules because of the fact that what the general rule is there is an exception, which is the general rule in the other. It is actually the same dog with the collar at different ends, depending upon who put it.

Question: Which rule is followed in the Philippines? Answer: According to the old case of US vs. BULL (15 Phil. 14), the Supreme Court said that we adhere to the English Rule. However, based on the public international law, these vessels should be MERCHANT VESSELS. This is not applicable to warships because warships are considered extensions of the territory of the mother state wherever it may be. Example: A ship of an enemy is in the Philippine waters, and a crime is committed. The English Rule cannot be applied. The navy vessel in the country is not subject of the laws of a foreign sovereign.

2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;

tickets.

The second exception applies also to government bonds, treasury warrants, and sweepstakes

Example: You are responsible for counterfeiting Philippine money abroad. Every week you fly to the Philippines, and then you are caught. You say you cannot be charged under Philippine laws because you say you counterfeited currency, but not in Philippine territory. That will not prosper! You can be arrested as if you committed the crime here. That constitutes economic sabotage, so we can try the crime in our courts as if the crime was committed in Philippine territory.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; The third exception is related to the second. You may not be the forger or counterfeiter, but you are the importer into the Philippines of these forged or counterfeited currencies and securities. So, you are liable for the introduction of the same in the Philippines.

4. While being public officers or employees, should commit an offense in the exercise of their functions; or This applies more particularly to those in the foreign service because the offender here is a public officer who commits a crime in the exercise of his function. For example, officers of the Philippine Embassy and Consulate malversed government funds of the embassy.

Question: Does it mean that every crime committed abroad by these officers can be tried here? Answer: No, only those committed in the exercise of their function. Meaning, the acts were related to their jobs – where the element of being public officer is an essential ingredient. If you commit an offense which is purely private and it has nothing to do with your being a public officer, it is not covered. These crimes here are those under the Title of Crimes Against Public Office – malversation, bribery or crimes committed under the Anti-Graft Act.

5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code. Example of a crime against national security: treason, espionage. A Filipino citizen, during the war, commits an act of treason while he is abroad. After the war, he goes back to the Philippines. He can be arrested for that crime even if the crime was not committed here because that is against national security of the state.

Example of crimes against the laws of nations: piracy, mutiny. A group of pirates committed piracy in Indonesia. That is clearly outside Philippine territory. But the pirates are apprehended in Philippine waters. They can be charged under Philippine law. They cannot say the act of piracy was committed beyond Philippine territory, that they committed it in Indonesia. Piracy is a crime against the laws of nations and the offenders can be apprehended and tried under the law of the country where they are caught.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Title One FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY Chapter One FELONIES

Art. 3. Definitions. — Acts and omissions punishable by law are felonies (delitos). Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

According to this article, felonies are acts and omissions punishable by law. But that is not the complete definition. That is only one-third of the definition. The concept of felony covers the entire Article 3. It is not limited only to the first paragraph. You have to incorporate the entire Article 3. Question: How do you rephrase that? Answer: Felonies are acts and omissions punishable by law which can be committed not only be means of deceit (dolo) act is committed with deliberate intent or by means of fault (culpa) when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. That is the complete definition. Question: What are the elements of felony? Answer: Elements of Felony: (Atty. Angel’s Note) 1. Involves an act or omission. 2. Punishable by RPC. 3. Committed by either dolo or culpa.

1.

Act or omission

Question: Define an “act”. Answer: An act is a physical movement, a physical activity of human body which tends to influence the outside world. Practically, 90% of all felonies are done through physical act. How do you kill? By shooting or stabbing. These should involve some movements of muscles. How about oral defamation? There is still the movement of your tongue; the muscles of your throat are working when you utter defamatory words. So, you cannot kill somebody by simple sitting on the bench and stare at somebody. It’s impossible even with dagger looks! ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Define “omission”. Answer: This is the opposite. Omission is defined as inaction; the exact opposite of action. In omission, it is the other way around .The failure to do a positive duty which the law commands to be done. So, to say that there is no crime when there is no movement is wrong. You may be prosecuted not by doing something but by failing to act. But omissions are the minority. Majority of felonies are done through actions. Among the most famous ones us Misprision of Treason under Article 116 of the RPC; if you have to knowledge of any conspiracy, you have to report it.

Art. 116. Misprision of treason. — Every person owing allegiance to (the United States) the Government of the Philippine Islands, without being a foreigner, and having knowledge of any conspiracy against them, conceals or does not disclose and make known the same, as soon as possible to the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides, as the case may be, shall be punished as an accessory to the crime of treason. If you find a person dying in the middle of the forest, then you just left him there, you are liable under Article 275 for abandonment of persons in danger. Normally, you are liable for not doing. The Chinese proverb (Too much talk, too many mistakes. Less talk, less mistake. No talk, no mistake) is the general rule, but not in felony of omission. You have to do something.

Question: Based on paragraph 1, classify felonies. Answer: a. Felonies by act; b. Felonies by omission.

2.

The act or omission must be punishable by law or RPC.

Question: What is the principle here? Answer: No matter how bad, no matter how condemnable, immoral or atrocious an act or omission is, if there be no law penalizing it, there is no crime. The solution is to write to your congressman and ask him to pass law. The Latin Maxim is “nullum crimen, nulla poena sine lege”. That must be first a law penalizing it. You cannot convict a person for a crime which does not exist in the RPC. There is no crime if there is no law making it a crime. Question: How many laws are there which penalize crimes? Answer: There are so many. Generally, there is RPC. Illegal possession of firearms is punishable by PD 8066. Smoking or selling marijuana is punishable my Dangerous Drugs Act; drinking liquor on Election Day is punishable by Omnibus Election Code. Issuing a bouncing check is penalized under BP 22, etc. Question: Are these illegal possessions of firearms, smoking or selling marijuana, etc., are felonies? Answer: No, because they are not punishable by RPC. They are punishable under special laws.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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So Article 3 says punishable by law, it refers to RPC only. A better way of expressing it is: “Felonies are acts and omissions punishable by the RPC”. That would be the more accurate way. For example, murder. Question: Is there difference between crime and a felony? Answer: The word “crime” is generic, because it refers to all acts or omissions punishable by any law. Even the RPC uses the word “crime” to refer to felonies of Book Two in Crimes Against National Security. But the more accurate term for acts or omissions by the RPC are “felonies”. Those punished by special laws are called “crimes” or “offenses”. “Felony” is a technical term. Those punishable by ordinance are called infraction of ordinance. If you say murder is a crime that is correct because the term is used in its generic sense. But when you say murder is a felony, you must be a law student. You are expected to know the meaning of the word felony. On the other hand, if you say that issuing a bouncing check is a felony you do not know what you are talking about. It cannot be felony, because it is not found in the RPC.

3.

There is deceit (dolo) or fault (culpa).

When you say “deceit” it means you were fooled. For example, you run out of cash, so you issue check which you know will bounce because there is no fund for it. There is deceit there. In estafa, there is also deceit. But there are felonies where there is no deceit. For example, Give me your money or else I’ll kill you. There is a felony, i.e. a robbery or hold-up, but there is no deceit. There is intimidation and intent to gain but there is no deceit. Question: If there are many crimes where there is no deceit, how come the law says felonies are committed by means of either deceit or fault? Answer: Because deceit is a wrong translation of the word “dolo”. Deceit is a form of dolo but not every dolo constitutes deceit. The better translation for the Spanish word “dolo” is intent. So, there must be intent, instead of deceit. “Culpa” means fault – when there is negligence or importance. There is no intent but is substituted by lack of foresight or lack of skill.

Based on the third element, there are two types of felonies:  Intentional felonies  Culpable felonies Another classification are (based of the first element of felony):  Felonies by act  Felonies by omission

Question: Intent is in the mind. But how do you prove intent? For example: When you kill somebody, how do you prove that you have the intent to kill? Answer: There is no need to prove it. There is a presumption in law that criminal intent is presumed from the commission of a criminal act. When you kill somebody, the law presumes intent to kill. When you ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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divest somebody of his money in a robbery or theft, the law presumes that there is intent to gain. It is fair enough, because how can the prosecution prove what is in the mind of person? So, what is in the mind is judged by your actions. Question: Why is there such a presumption? Answer: Because of the Classical Theory of criminal law that man is a rational being, so that when he commits a criminal act, it is presumed that he did it knowingly, and therefore, his criminal intent is presume from his commission of a criminal act. Without such presumption, it should be very difficult for the prosecution to be required to prove criminal intent. But the presumption could be rebutted. Question: Distinguish “motive” from “intent”. Answer: Both are in the mind. Motive is the moving power that impels a person to commit a crime; while intent the purpose to use a particular means to achieve a particular result. While criminal intent is an element of a felony, motive is completely immaterial.

Example: A shoots B to death.

Question: What was the intent of A? Answer: His intent was to kill. Question: What was the motive of A in killing B? Answer: I don’t give a damn. Maybe it is anger, revenge, jealousy, etc.

In the realm of criminal law – substantive law – motive is immaterial; it is not an element of the crime. Hence, it need not be proved for purposes of conviction. Otherwise, if we were to require motive to be an element of a crime, many criminals will not be prosecuted. When the commission of a crime is proved and the identity of the criminal is established, motive is immaterial.

Motive is important, not in substantive law, but in procedural law – the law on Evidence. Motive may constitute circumstantial evidence. Meaning, if you have no direct evidence that A killed B, I will gather a series of possible reasons to show why A is guilty. So motive is important to prove the probability that A is the criminal, but it is not important to prove the existence of a crime. But if you have hundred witnesses, it is not necessary to prove motive because in that case, the reason for committing the crime becomes completely immaterial.

PEOPLE vs. MOSENDE 228 SCRA 341

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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No motive or reason for the killing here dealt with as reveled by the proofs. This is immaterial, where the evidence otherwise persuasively demonstrates who is the killer and the acts by which he has carried out nefarious intent. This is not that what lies in the murky criminal mind is not interest, especially to penologist, criminal psychologist, or social scientists. But it is immaterial in reaching a conclusion of guilt and imposing an appropriate penalty on the basis of a cold dispassionate appraisal of the bare facts exposed by the evidence. In other words, motive would be a subject of penologist, criminal psychiatrists or social scientists. But for purposes of getting a conviction, it is completely immaterial for as long as there is evidence to prove that the crime was committed and it was the accused who committed it.

Question: Can a person be held criminally liable under the RPC even if he has no criminal intent? Answer: Yes, if it is committed by means of fault or culpa which is substituted for intent. Culpable felonies are known under Article 365 as QUASI-OFFENSES. There is no criminal intent but is substituted by fault – imprudence or negligence.

Imprudence means deficiency of action, lack of skill. Negligence refers to deficiency of perception, lack of foresight. Meaning, the failure to foresee what a reasonable man ought to foresee.

Example: A motorist drove his car at a speed of 100 kph in the middle of San Pedro St. Suppose he bumps somebody. That is normal – for incidents as that to happen. But there must be something wrong in his foresight. Why is he driving at a very fast jeep in a busy street?

Question: What is the test of negligence? Answer: The test is the failure to foresee what any ordinary person would have ordinarily done.

Question: What is the test of imprudence? Answer: The failure to do what any ordinary person would have ordinarily done.

Question: Why does the law penalize people who commit culpable felonies, when actually there was no criminal intent? Answer: Because he is penalize people for his lack of skill. According to the Supreme Court, it is very dangerous if a person can get away with a criminal act simply because he did not have the intent. Society will be at great risk if people can be careless anytime.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Another important principle: when the law says there must be criminal intent or fault, what it means is the act must be committed voluntarily. Every felony must be committed voluntarily.

Question: What are the elements of voluntariness in an intentional felony? Answer: There must be, on the part of the actor, the following: a. Freedom b. Intelligence c. Intent Question: How about in a culpable felony? Answer: In a culpable felony, the elements of voluntariness are: a. Freedom of Action b. Intelligence c. Fault or negligence Question: What do you mean by voluntary act in felony? Answer: It is an act which is free, intelligent and intentional. When you remove one of these elements, the act ceases to be voluntary. There might be intelligent and intent, but if there is no freedom, the act ceases to be voluntary.

Example: Article 12 – one who acts under the compulsion of an irresistible force, one who acts under the impulse of an uncontrollable fear of an equal or greater injury. Under these two circumstances, the offender acts with intelligence and intent, but if there is no freedom of action, as he is only forced, threatened or intimidated to commit the crime. So, he is exempt from criminal liability because the act ceases to be voluntary. There is Latin maxim: actus me unvito, factus non est meus actus. As it is done against my will, it is not my act. If there is freedom, there is intent but no intelligence – it has same effect. The act ceases to be voluntary. For example: Article 12 – an imbecile or insane person; a minor under 9 years of age. Suppose there is freedom, there is intelligence, but there is no intent. What happens is that person is again free from criminal liability. It is true that criminal intent is presumed, but such presumption is not conclusive, it is rebuttable.

US vs. AH CHONG 35 PHIL 488 Facts: Ah Chong was a cook in Fort McKinley. He was afraid of bad elements. One evening before going to bed, he locked himself in his room by placing a chair against the door. He called out twice, “ Who is there?” but received no answer. Fearing that the intruder is a robber, he leaped from his bed and called out again “if you will enter my room, I will kill you!” But at that precise moment, he was struck by the ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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chair that had been placed against the door, and believing that he was being attacked, he seized a kitchen knife and struck and fatally wounded the intruder turned out to be his roommate. Held: Ah Chong is not liable for the death of his roommate because of mistake in fact. Mistake of Fact – is a misapprehension of fact on the part of the person who caused injury to another. He is not, however, criminally liable because he did not act with criminal intent. Requisites of Mistake of Fact a. That the act done would have been lawful had the facts been or turned out as he believe them to be; b. That the intention of the accused in performing the act should be lawful; c. That the mistake must be without fault or carelessness on the part of the accused.

Question: What is the reason why Ah Chong killed the intruder? Answer: Ah Chong killed the intruder because he believed that the intruder was inside his room in the dark to kill him and therefore, he had to kill him first.

Question: Suppose what he believed turned out to be true; an intruder in the middle of the night enters his room to kill him, but he kills him first. Is he liable? Answer: Of course not! Because of self-defense. Meaning if you believe it to be so true, you are not liable. So, the first element is there.

Question: What was the intention of Ah Chong in killing that man? Answer: The intention was lawful – the act in self-defense, to protect his life and limb.

Question: Was he careless? Did he just immediately stab the person when the latter entered the room? Answer: No, in fact Ah Chong asked who he was and even gave him warnings not to enter the room or else Ah Chong would kill him. Moreover, it was dark, so how can he determine the intruder was his roommate or not. In other words, the element of intent and culpa were all negated.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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That is the classic example of mistake of fact. And the Latin maxim there is Actus no facit reum nist mens sit rae. The act is not criminal when the mind is not criminal.

Another maxim Ignorantia facti excusat (mistake of fact is an excuse) is not to be confused with the Ignorantia legis non excusat. While ignorance of the law excuses no one from compliance therewith, ignorance or mistake of fact relieves the accused from criminal liability.

PEOPLE vs. OANIS 76 PHIL 257 Facts: Chief of Polis Oanis and his co-accused, Corporal Galanta were under instructions to arrest one Balagtas, a notorious criminal and escaped convict, and if overpowered to get him dead or alive. Proceeding to the suspected house, they went into a room and seeing a man sleeping with his back towards the door. The victim turned out to be an innocent man, Tecson, and not the wanted criminal. During the trail, the accused invoke the Ah Chong case. Held: Both accused are guilty of murder. The Ah Chong case does not apply here. The first requisite of fact is lacking – that the act done would have been lawful had the facts been as the accused believed them to be. Assuming it was the wanted criminal that they were ordered to apprehend, do they have the authority under the law to shoot him down? Even if they invoke the mitigating circmstance of fulfillment of duty, it will not be appreciated in their favor because although they are authorized to use force in order to affect the arrest, the law says, reasonable force. It was not necessary for them to shoot him down immediately. Even hardened criminals, if they can be caught without killing them, then there is no need to shoot them to death.

Question: Was there fault or negligence on their part? Answer: Of course! They did not even bother to discover his identity – whether the guy was the right person. They just started shooting him. So, that is the difference between these two cases. While it is true that culpable felony, intent is not necessary, however, the law still requires voluntariness on the part of the offender in a culpable felony. The element being still freedom, intelligence and negligence. So, it is not correct to say that in reckless imprudence case, the act is not voluntary. If you are reckless, you ask yourself, were you forced to be reckless? Did somebody compel you to perform a negligent act? If there is none, then there is freedom. Were you crazy or out of mind when you committed the crime? If you were not, then there is still intelligence. In other words, even culpable felonies, the elements of voluntariness are still there.

Question: How does Article 365 define imprudence?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: Article 365 defines reckless imprudence as voluntarily but without malice in doing or failing to do an act. So, there, you will see that in reckless imprudence cases, there is no dolo, but still the act must be voluntary. Question: Can a person be held criminally liable under Philippine law even if there is no criminal intent on his part? Answer: Yes: 1. When the felony is classified as culpable in nature, like reckless imprudence; and 2. If the crime for which he is caused is classified as a crime malum prohibitum.

Distinguish mala in se and mala prohibita MALA IN SE

MALA PROHIBITA

Crimes so serious in their effects to society as to call for unanimous condemnation to its members.

Violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society.

Criminal intent is necessary.

Criminal intent is immaterial because the only inquiry is: has the law been violated?

Generally, refers to those act or omission punished by the RPC.

Generally, refers to acts or omissions made criminal by special laws.

Example of crimes mala in se are murder, homicide, robbery or rape. They are not only crimes under our laws, but they go against natural law, the basis commandments of God. Even without knowing the law, you conscience would tell you that there is something wrong with these crimes. They are wrong per se. Even without the RPC, the human conscience will tell us that there is something wrong when a person kills, robs or rapes somebody. With or without the RPC, society could not accept these evils. However, these are also crimes which are NOT inherently wrong – mala prohibita. They are wrong only because they are prohibited. They are violations of mere rules of convenience enacted by the state for the proper and orderly administration of society. Examples of these are illegal possession of firearms, violations of traffic rules.

Question: Is there anything inherently immoral when a person brings a gun with him? Answer: One may posses or own a firearm without license because the law says so. It is wrong because it is prohibited, not because it is immoral.

Question: Is there anything wrong when a person drinks a bottle of beer during election day? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: None, it becomes a crime because the law says so. It says one drink on any other day, but not on Election Day.

Question: Why are people prohibited from drinking on election day? Answer: People are prohibited from drinking on election day because this may lead to more violence, added to electoral terrorism, on that day. Suppose B drinks on Election Day, but he has no intention of committing acts of violence or terrorism. Meaning, he has no criminal intent to terrorize voters. This is immaterial. The law says that the above act is violation. The only issue is whether or not the law was violated. That is all.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 4. Criminal liability. — Criminal liability shall be incurred: 1.

By any person committing a felony (delito) although the wrongful act done be different from that which he intended.

2.

By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or an account of the employment of inadequate or ineffectual means.

Question: Suppose a person commits felony and the wrongful act done is precisely what he intended. For example, B kills A. B aimed his gun towards A and shoots him, B’s intent was to kill A, and A died. Does he incur criminal liability? Answer: Of course! But this is not mentioned in Article 4 which says “the wrongful act done be different from which he intended. Here, it was really the intention of B to kill A.

Question; But why is B liable when it is not covered by Article 4? Answer: Article 4 enumerates only the EXTRAORDINARY manner of committing a crime or incurring criminal liability. The ordinary way is to commit a felony and the wrongful act done was precisely what you intended. But the wrongful act is different from which he intended, that is not normal. That does not happen everyday. That is why it is extraordinary, and that is what Article 4 covers. One incurs criminal liability even if his intention is different from what actually happened. You will notice that based on that definition, the first paragraph of Article 4 applies only to felonies by act. It cannot apply to felonies by omission because the wrongful act had done be different from that which he intended. So, there was really intent. Therefore, it is also limited to intentional felonies. It has no application to culpable felonies.

Question: How can a person commit a felony and the wrongful act done is different from that which he intended? Answer: There are three situations contemplated by Article 4 (1): 1. Error in personae – error in identity 2. Aberratio ictus – mistake in blow 3. Praeter Intentionem – the result exceeded the intention.

Error in Personae A wants to kill B so, he decided to ambush B in the dark. One night, A waited for B, when he thought he saw B coming, A attacked and killed B. Later on, A found out that the person he attacked was not actually B, but X. he killed the wrong guy. Of course, A will be prosecuted for death of X, and b is very much alive. This is A’s defense: he should not be liable for the death of X because he (A) did not intended to kill X . He just misidentified the victim. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Is that a valid defense? Answer: Of course not! A is still liable for the death of X because although there was a mistake identity of the victim, he still had the intention to kill.

Aberratio Ictus This is not mistake in identity, but a mistake in the blow. For example, A wanted to kill B. A drew his gun, pointed to B and fired at him. But the bullet did not hit B. Instead, the bullet hit X, killing the latter. Prosecuted for the death of X. A’s defense is that X was not the intended victim. Question: Is A liable for the death of X, although he (A) did not even intended to kill him? Answer: Yes. That defense will not hold any water. A is liable for the felony although it was not the one he intended. So in error in personae, there is a correct aim but the actual victim turned out to be a person different from the intended victim. In aberration ictus, on the other hand, because of faulty aim, the intended victim is not the person hit.

Praeter Intentionem The result exceeded the intention. PEOPLE vs. CAGOCO 58 Phil 524 Facts: The accused had the intention to inflict physical injuries upon the person of B. Approaching B, accused hit him with his fist, because of the first blow, B fell on the floor. B’s head hit the rock. It fractured his skull and thus caused his death. A had no intention of killing B. His intention was merely to inflict upon B physical injuries. But B died. Issue:

Is A liable for homicide although his intended felony was only physical injuries?

Held: A is liable for homicide, although his intention was merely to inflict upon B, physical injuries. It is conceded that under Article 13, he is entitled to the mitigating circumstance that the offended did not intend to commit so grave a wrong as that committed. But that is beside the point. The issue here is whether the crime he committed is homicide or only slight physical injuries.

US vs. VALDEZ 41 Phil 497

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Facts: The accused chased the victim with a knife causing the victim to panic and run. The latter jumped into the sea and eventually was drowned. Issue:

Is the accused liable for the drowning of the victim?

Held:

Yes, although the drowning was not intended.

PEOPLE vs. QUIAMSON 62 Phil 162 The accused inflicted wounds upon B. The accused stabbed B, but B was brought to the hospital, so he was saved. In the hospital, there were many instruments attached to him. The victim was restless, while in the hospital bed. Then he started removing the bandages on his wounds. Eventually, B died. Accused said that the death of B was not due to his fault. But the court still held the accused liable for the death of B.

US vs. MARASIGAN 27 Phil 504 Facts: The victim here was stabbed. Because of his refusal to submit to medical treatment, the wound got infected, and the injury became worse. Slight physical injuries became serious physical injuries. The accused was charged with serious physical injuries. Accused claimed he should be liable for slight physical injuries, because the victim’s serious physical injury arose from his refusal to see the doctor. Issue:

Is the accused liable for serious physical injuries?

Held: Yes, the accused is still liable for the serious physical injuries inflicted upon the victim although it was not intended. The victim was not obliged to submit to medical treatment to relieve the accused from the natural and ordinary results of the crime. It was his voluntary act, which disabled the victim, and he must abide by the consequences resulting therefrom.

PEOPLE vs. MARTIN 98 Phil 18 The husband strangled his wife who was then suffering from heart disease. While being strangled by the husband, the wife suffered a heart attack, which eventually caused her death. So, the cause of his wife’s death was not suffocation but heart attack. The court held that the husband is still liable for the death of his wife. (Note: Parricide)

A person, committing a felony, is liable for the direct, logical and natural consequences of his criminal act.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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In other words, the principle which the Supreme Court applied is the so –called “doctrine of proximate cause”, and is defined as that cause which in the natural and continuous sequence, unbroken by any efficient intervening cause, results in a particular felony, without which the felony would not have resulted.

Question: In the case of Cagoco, the victim did not die because of the punch. The victim died because his head hit the piece of rock. Would you say that the hitting of his head on the rock which caused his death was something absolutely foreign, something which broke the relation between cause and effect, between the punching and the death? Answer: No. That is not efficient intervening cause. The immediate cause of death was the fractured skull, but the punching was the proximate cause based on the logic that without the punching, there is no falling down. Without the falling down, there is no head hitting a piece of rock, and if that did not happen, there will be no death. So, everything is traceable to the original criminal act. So, the principle laid down by the Supreme Court is: “He who is the cause of the cause is the cause of the evil caused”. The cause of death is actually the cause of the evil caused. In other words, the effect is death, immediate cause – the fractured skull, proximate case – punching. So, the immediate cause of death was the fractured skull is the proximate cause of death.

Illustration: Punch victim (proximate cause)

head hits rock (fractured skull) immediate cause

victim dies effect

Question: What do you mean by efficient intervening cause? Answer: An efficient intervening cause is something absolutely foreign and totally unexpected which intervened and which break the relation of cause and effect, between the original felonious act and the result.

Generally, infections are all considered as a continuation or the natural effects of what happened to the victim. They are not efficient intervening cause. The law says that one is not liable if there are efficient intervening causes. Meaning, if there is something which happened in between which is absolutely foreign between the victim’s death and the original act, there is a break in the relation of cause and effect, then one is liable only up to that point. Beyond that, no more. Take note that the Supreme Court says that one is liable for all the direct, logical and natural consequences of his criminal act. The Supreme Court never said that he is liable for all possible and probable consequences of his act.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

There are some cases where the factor that intervened between the criminal act and the resulting injury was considered as an efficient intervening cause, something totally unexpected, something absolutely foreign which broke the relation of cause and effect between the original act and the resulting injury. So, when you are liable for a felony, you are liable up to a certain point.

US vs. DE LOS SANTOS Facts: The accused here inflicted a wound upon him, which was not really very serious. It was the type that would heal in one week or less. So, the crime is slight physical injuries. But the victim said that he wanted to hold the accused liable for a more serious crime. What the victim did was to contaminate his wound, deliberately causing it to be infected. The wound worsened. Held: The victim’s act of deliberately aggravating or worsening his wound was considered as an efficient intervening cause. The accused, here should be liable only for slight physical injuries not for serious physical injuries, which is caused by the infection no longer in normal circumstances. It is because of the bad faith on the part of the victim himself.

Normally, jurisprudence would say that the infections are efficient intervening causes, except in this case of De los Santos, where it was caused deliberately. There is also another unique case decided by the Supreme Court where the infection was considered an efficient intervening cause. There are some queer cases where the Supreme Court went outside the normal pattern. Because we follow the general pattern, when a person injures another and the victim suffers an infection maybe because of carelessness or poor medical attendance, but not intentional, the accused should be held answerable for everything. That is his burden.

URBANO vs. IAC 157 SCRA 1 Facts: The accused wounded the victim who was a farmer. Despite the wound, the farmer continued working hard in the field. After several days or weeks, the wound was infected with tetanus. So, the victim dies. Issue: WON tetanus can be considered as an efficient intervening cause of the victim’s death for which the accused could be held liable. Held: There is a like hood that the wound was but the remote cause, and its subsequent infection for failure to take necessary precautions with tetanus may have been the proximate cause of the victim’s death, with which the accused has nothing to do.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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So, the proximate cause of the victim’s death was not the wounding, but the tetanus, because the wounding was but a remote cause. This is one of the few cases where the accused was not held liable for the resulting infection. The Supreme Court here did not apply paragraph 1 of Article 4 but applied the doctrine of remote cause, rather that proximate cause. As a matter of fact, in the Urbano case, the Supreme Court seems to be “dissenting” medical wounds. That case became more of medical textbook for tetanus, that a Supreme Court decision in Martin.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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PEOPLE vs. PALALON 49 Phil 177 Facts: The accused slapped a boy. The victim subsequently developed a fever due to malaria. Then the boy died. Accused was charged with homicide. Issue: WoN malaria is efficient intervening cause for which the accused should be held liable for the death of the boy. Held: The slapping or punching could have caused malaria. Malaria caused the boy’s death. But malaria is caused by mosquito bites. The intervention of malaria here was an efficient intervening cause, which broke the relation of cause and effect between the slapping and the death. It was something foreign or remote. It had nothing to do with the original act. It is not the direct, natural, logical consequences of the act of the accused.

Take note of the premises of paragraph 1 of Article 4. The law is very clear: a person is committing a felony although the wrongful act done be different from that which he intended. So, this does not apply to a felony by omission.

Like for example, in one case, the mere act of punching is already intended. In the case of Marasigan, the act of wounding the victim is already a felony. In the case of Martin, where he straggled his wife, that is already a felony, although the cause of her death is heart attack. That is started with felony. But if one is not committing a felony, he is NOT liable for the direct, natural, and logical consequences of is act.

Question: A wanted to play a joke with his friend. Since, this is where he passed every night, A waited to the friend. When he reached the place, A surprised him. The friend died due to heart attack. Is A liable for the friend’s death on the theory of paragraph 1, although the wrongful act done be different from that which he intended? Was A committing a felony when he played a joked on his friend? Answer: No, A is not liable for the death of is friend. If there was a felony, yes he is liable. But is there a law in the Philippines that prohibits playing a joke on somebody/ None. Since A here was not committing a felony when he played a joke on his friend, then he is not liable for his friend’s death. It could be something unexpected and tragic. But it is not enough to make a person criminally liable. There is no basis.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. This is known as the concept of “Impossible Crime”.

Question: Define Impossible Crime. Answer: An impossible crime is a crime committed by a person who performs an act, which would be an offense against the persons or property, were it not for the inherent impossibility of its accomplishment or on the account of the employment of inadequate or ineffectual means. Note: There is no such thing as impossible crime by omission.

Question: Why is it that in paragraph 2, the Penal Code says, “performing an act”, whereas paragraph 1 says, “committing a felony”. Answer: Precisely because in paragraph 2 there is no known felony. Unlike in paragraph 1 where felony is defined in the RPC, Book II; but, he performed an act which would have been an offense against persons or property. Meaning, the act should have been a crime against person or property but it did not turn out to be that way because of the inherent impossibility of its accomplishment or on the account of the employment of inadequate or ineffectual means.

PEOPLE vs. BALMORES 86 Phil 493 Facts: This is about a crime of somebody trying to counterfeit a currency note. He put a chemical on the note so that he could get an impression. The trouble was that it was not done properly. All the markings on the face of the forged bill were inverted. It looked like a genuine bill with the exception of the inverted letters. He was charged with counterfeiting and forgery. Held: No, it was not counterfeiting or forgery. Counterfeiting or forgery means an exact reproduction of what the genuine currency looks like. This is not an exact reproduction of the original for everything is inverted. Therefore, he is not guilty of counterfeiting, but he is guilty of an impossible crime because of the inherent impossibility of its accomplishment or on the account of the employment of inadequate or ineffectual means. But there is something wrong with the decision. Counterfeiting or forgery is not a crime against person or property. It is a crime against public interest. The concept of impossible crime is limited only to crimes, which would have been ended as crimes against persons or property. If we stick to the law, the correct ruling would be that he neither committed any crime nor an impossible crime.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Normally, you commit a crime against person. But you can also commit a crime against property. Examples are the following: robbery, theft, etc. Agaisnt persons: murder, homicide, physical injuries, etc.

Question: Are all impossible attempts to commit a crime punishable? Meaning, when you committed an act which turned out not to be an offense of an inherent impossibility, are you liable? Answer: No, in order to be considered an impossible crime, it would have been an offense against persons or property. So, when you perform an act which would be an offense against chastity, against honor, or against public interest, that is not covered by paragraph 2 of Article 4 because of the special hatred by the RPC for crimes against persons and property.

Crimes Against Persons Suppose, you want to kill Lei and you plan to stab him in his room in the middle of the night while he is sleeping. So, you go to his room, you see him lying, then, you start stabbing him to death, but without knowing that he is already dead because one or two hours earlier he died in sleep.

Question: Are you liable for murder? Answer: No, murder is impossible because you cannot kill somebody who is already dead. There is a physical impossibility; you cannot kill a cadaver. So, you did not commit murder. But had he been alive, it would have been murder.

Question: What crime did you commit? Answer: You committed an impossible crime because of the physical impossibility of killing somebody who is dead. That is Article 4, paragraph 2.

Crimes Against Property I want to steal your fountain pen. That pen is similar to the pen that I lost. I cannot buy another one, I steal yours. Upon looking at the pen, I realize that it is mine, it is the fountain pen that I lost. Question: Did I commit the crime of theft? Answer: No, there is legal impossibility. One of the elements of theft is that the personal taken by the offender belongs to another. If it belongs to you, it cannot be theft. It is impossible for the offender to be at the same time the victim of his own act. One cannot steal from himself. Question: Is there a crime committed? Answer: Yes, an impossible crime.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Inadequate Means For example, I placed a small quantity of poison in the food of somebody. He took the food but he did not die because of the dosage that I put in the food as it is insufficient to kill a person. I am liable for committing an impossible crime. Question: For instance, the poison that I placed in the food was adequate but I did not know that the person was especially immune from the chemical that I used. So, he did not die despite the sufficient amount of poison. Did I commit an impossible crime? Answer: No, that would be more of a frustrated murder. The offender performed all the acts of execution, which would produce a felony as a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. So, it is frustrated murder under Article 6, rather than an impossible crime under Article 4 paragraph 2.

Ineffectual Means For example, I placed something in your office believing that it was poison, but actually it was salt or sugar. You could not have been killed because it was not poison. But because I believed that I could have killed you were it not for the ineffectual means, I am liable for impossible crime.

There must be criminal intent on the part of the offender. In other words, he believed he was committing a crime at that moment. Suppose, I want to kill Dao while he is asleep in is room. I go to Dao’s room and see him lying in bed. I approach him, and I notice that he is not moving. I touch him; he is already dead! So, I said: “Shit! Why did you have to die before I kill you?!” So, I just stab his body, knowing anyway he is already dead.

Question: Am I liable for impossible crime? Answer: No, because there is not intent to kill. It is different when you think you are killing him when actually he is already dead.

A person could be liable for an impossible crime only if the act does not fall under any specific provision of the RPC. Impossible crime is the last resort.

A, who knew that B owned and always carried a watch, decided to rob B of said watch. When A met B for that purpose, B did not have the watch because he forgets to carry it with him. Thinking that B had the watch with him, A pointed his gun at him and asked for the watch. Finding that B did not have the watch, A allowed B to go without further molestation. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Is he liable for an impossible crime because it was impossible for him to take something, which is not there? Answer: No, that is not an impossible crime that is attempted robbery. It would fit the definition of an attempted robbery better than the definition of an impossible crime. And the mere act of placing or poking a gun at somebody is by itself already a felony. So, it falls under a specific provision of the RPC, then, it should not be treated as an impossible crime.

Question: What is the basis for impossible crime doctrine? Why should a person be held liable when actually he did not commit any crime? Answer: The principle here is objectively he is not criminal, but subjectively he is a criminal. He thought he was committing a crime. So, he should be punished for that. In the positivist thinking, he is socially dangerous person, he is criminally minded.

Question: Why are we talking about the person? Didn’t we say that the RPC is based on the Classical Theory of criminal law, where we are looking at the effect rather than the person? Is this not a violation of the classical theory of criminal law? Answer: No, Article 4 (2) of the RPC is one of the few principles, which is positivist-oriented. Our RPC is mainly based on the Classical Theory, but there are few positivist-oriented provisions and one of them is the impossible crime concept, under Article 4 (2) of the RPC.

Question: What is the penalty to be imposed on impossible crime? Can we penalize the offender for murder, homicide, robbery, etc – the crime that he would have committed? Answer: Of course not! He cannot be penalized for the crime, which he would have committed precisely because he did not commit the crime.

Question: What crime did he commit? Answer: He committed an impossible crime.

Question: What then is the penalty for impossible crime? Answer: Article 59 of the RPC. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. – When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Art. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law and in cases of excessive penalties. — Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law it shall render the proper decision and shall report to the Chief Executive through the Department of Justice the reasons which induce the court to believe that said act should be made the subject of legislation. In the same way the court shall submit to the Chief Executive through the Department of Justice such statement as may be deemed proper without suspending the execution of the sentence when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty taking into consideration the degree of malice and the injury caused by the offense.

Question: What does the first paragraph of Article 5 mean? Suppose a person is accused in court criminally and it turned out that the act is not a crime. Meaning, there is no law that penalizes this act. What should the court do? Answer: The law says that the court should render the proper decision. Question: What is the proper decision? Answer: Acquit. How can you convict a person when there is no existing crime? Nullum Crimen, Nulla Peona Sine Lege. But the court should inform the executive branch that it should recommend passage of the law. Sometimes, it happens that you commit an act which appears to be immoral and illegal, but there is no governing law. So, you now recommend that a new law be passed. This is to cover the loophole in the law. But the second paragraph states the opposite situation. If a person is found guilty of a crime – there is no question about it; there is no question that he is liable – and this is the proper penalty. This must still be imposed on the convict even though it is excessive. Why excessive? It is excessive because of some special circumstances. Normally, it is not excessive but because of some circumstances, it becomes one. But there is nothing that the judge can do. He still must impose it but he must recommend executive clemency. That is for the President to grant. The judge has no power to pardon. The judge has no power to commute or to grant conditional pardon. The executive branch must take over but as a judge, he has no other choice but to apply the law.

PEOPLE vs. OREFON Facts: A girl was accused of parricide for killing her own father. The prescribed penalty for parricide is reclusion perpetua to death. That is a heinous crime. But during the trial, based on the evidence, it came out that the accused killed her own father because she could no longer withstand what her father was doing to her. She was raped from time to time (incestuous rape). So, she killed her own father. Well, for killing the father se still committed parricide. There is no exception there and the penalty is reclusion perpetua to death. That cannot be lowered by any mitigating circumstances. So, the judge has no choice but

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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to sentence her to perpetua. But based on the circumstances of the case, there is something exceptional which makes the penalty excessive. In other words, the court also considers the feeling of the girl. Held: The trial court is ordered to sentence her to perpetual, but in the decision, recommended executive clemency. The executive branch will take that into consideration. This happened very recently. In the case handed by Judge Ocampo, in beautiful Cebu. He convicted the killers of the Chiong sisters, finding them guilty beyond reasonable doubt, but he imposed the penalty or reclusion perpetua, when there is no question that the applicable penalty is death. The judge has applied his own norm of morality, or his own concept of death penalty. The law is the law for all its seeming harshness. We, as court of judges, have to apple the law regardless of personal beliefs and compassion. Dura lex sed lex.

PEOPLE vs. VILLORENTE Facts: The case is one for forcible abduction with rape filed against Villorente and his mother. Why was the mother included as co-accused? This Villorente was in love with a certain girl but he doesn’t know how to court a girl. The mother pitied her son and decided to abduct the girl and have her son raped her. The mother, in fact, cooperated with her son and both of them were sentenced to reclusion perpetua. The case reached the Supreme Court. Held: The penalty is excessive for Teresita Villorente. Unschooled like her son, she appears to have acquiesced with Charlie on account of her maternal concern. She must have agonized with Charlie who did not know how to court the girl of his dreams. Not knowing how to court Jonah. Charlie looks her from a distance until he could no longer hold his desire and with the complicit of his mother, abducted and raped her. It is , therefore, necessary that under the provision of Article 5 of the Revised Penal Code, the attention of the President should be called to the mother. Meaning, sometimes, a mother will go out of her way just to help her child. Of course, you cannot condone that. She still committed a crime because she wanted her son to be happy. How a felony develops 1.

Mental Process / Internal Acts

Not punishable

2.

External / Physical Acts: a. Preparatory Acts

Gen. Rule: Not Punishable Exception: If the RPC penalizes it. Example: Article 304 (Possession of picklocks and false keys)

Punishable b.

Acts of Executon  Attempted  Frustrated

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Consummated

Normally, as outlined in some books, a crime usually starts with a person arriving at the decision to commit a crime and then he plans it out. We call that the mental process or some authors call them internal acts. Although the word internal acts does not seem to be accurate in criminal law, when we say “act” as defined in Article 3, it is physical action, a moving of the muscle. If it is a mental process , it cannot be an act but we will just use the word act loosely. At this stage, this is still beyond the scope of criminal law. No one can charge you for thinking of committing a crime. That is a problem, which should be solved by the person with his spiritual director. But it is not the concern of the law. So if you want to murder your enemies, you just imagine. If you want to rape beautiful girls, you just imagine. That is beyond the scope of criminal law. However, usually after the decision and the planning, that is followed by external acts, the physical activity. So, the mental process will now be followed by external or physical acts. But external acts should be divided into two. First, are the Preparatory Acts. Like for example, you want to poison your enemy, you will buy poison. If you want to stab him, you buy a knife and sharpen it. If you want to shoot him, you get a gun and practice shooting. Those are preparations.

Question: Are they punishable? Answer: The general rule is No. The act of buying poison is not the act of poisoning the victim. The act of sharpening a knife is not the act of stabbing. Except when the law penalizes such preparatory acts.

Preparatory external acts of preparation for the commission of a felony are not punishable, except when the law specifically provides penalty for such preparatory acts.

The best example is Article 304 of the RPC, which penalizes the crime known as possession of picklocks and similar tools. Picklocks and similar tools are usually objects of gadgets, which are owned by robbers. They use it to open doors, windows, etc. But actually, the possession of a false key or a picklock is not the actual act of robbery. It is only in preparation of robbery. Normally, it should not be punishable but the trouble is Article 304 says mere possession of these objects, which are preparatory to the crime of robbery with force upon things, is also possible. After the preparatory acts comes the ACTS OF EXECUTION. Where a person now proceeds to implement his plan. He now executes the commission of the act and there are three possibilities, which RPC calls as the attempted, frustrated and consummated or mere frustrated or attempted is already punishable. So, we are concern here because these are all punishable already. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than this own spontaneous desistance.

Attempted Stage: There is an attempt when the offender commences the commission of felony directly by overt acts. Since the law says by overt acts, the conclusion is: In felony by omission, there is no attempted stage. So, there is no such thing as attempted stage in a felony by omission because attempted stage applies only to felony “by act”. The Supreme Court laid down the rule in order to convict a person for an attempted felony; the overt act must have a direct relation to the felony for which he is charged. There must be a direct relation between the overt act and the elements of the felony for which he is charged.

PEOPLE vs. LAMAHANG 61 Phil 707 Facts: One night, a group of policemen, while patrolling on neighborhood, saw a figure in the dark side inside the house. They stopped and observed what the guy was doing. The guy did not know that the group of policemen patrolling watched him. While the guy was doing, he tried to remove a portion of the wall. He was trying to create an opening to enter the house. When he was able to create an opening, and the accused was already in the act of entering the house in the middle of the night, that was the time when the policemen caught him. And for that he was charged for the crime of attempted robbery. Meaning, he commenced the commission of robbery by overt acts by trying to enter the house in the middle of the night. Although he did not succeed because he was caught. Held: There was no attempted robbery. There is no connection between what he was doing and the elements of robbery. Why? How do you commit robbery? Robbery is committed by taking personal property belonging to somebody. But here, he has not yet commenced the act of taking something. They caught him in the act of entering, but robbery is not committed by entering but by taking. So there is no connection between the act and the crime for which he is charged. For all they know, once he is already inside the house, his intention might to rape or kill somebody. So, it was premature to charge him with attempted robbery.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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However, one thing is clear. He was in the act of entering a house in the middle of the night, while all the occupants were all asleep. And when one enters a house against the will of the occupants, he commits the crime of trespass to dwelling. So, the crime he has committed is attempted trespass to dwelling, not attempted robbery. In attempted felony, the offender here had started to commit a felony. But the trouble is, he did not finish. He was halfway though or less than halfway through, but he did not continue because he failed to perform all the acts of execution which would produce the felony. Why? Because of a cause or because of an accident other than his own spontaneous desistance.

Cause Theft, pick pocket. He was trying to pick pocket of the victim. He was trying to lift the wallet inside the pocket or the bag. The owner of the wallet detected it, and held the hands of the thief. So, he failed to take the wallet. There was the act of taking but he failed to complete the possession of the wallet. The reason here why he failed to perform all the acts of execution was because the owner prevented him. That is a cause other than is own spontaneous desistance. So, attempted theft.

Accident I want to kill A. I aim the gun. I fired, but the gun jammed. It did not explode. So, with that I failed to kill the victim. Well, when I pointed my gun to the victim, I have already commenced the act of trying to kill. But the trouble is it did not explode. The jamming of the gun was not consummated, not because the offender stopped from proceeding, but because of something else.

Other than your own spontaneous desistance If a person commences the commission of a felony, but did not complete it because of his own spontaneous desistance, according to Viada, there is no criminal liability. He is not even guilty of attempted felony on the theory that a person who is already on the verge of committing a crime but desists or decides not to pursue because his conscience bothers him should not be penalized. In fact, he should be rewarded for hearkening to his conscience.

Question: Suppose, A would like to kill Z. As a matter of fact, he already commenced the commission of the felony but he realized that there were many eyewitnesses. So, he desisted. Can he be liable? Answer: Viada says, never mind what is the motive for not continuing. What is important is that he did not continue with the crime; he desisted voluntarily. Viada does not care whether his desistance was based on a noble reason, remorse, or out of fear of being caught. What is important is his desistance. When he tries again that is another story. But for the moment, since he desisted, he would not be liable. But take note that the desistance must come before the consummation of the crime. You cannot desist when all the acts of execution are already accomplished. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Is there an attempted theft? Or is there no theft at all because of my desistance? Answer: The crime of theft is consummated. The moment I take your wallet and then leave, the crime is accomplished or has already been fully consummated. So, when I return it to you. I cannot say that I desist. Note: You cannot desist when the crime is already consummated. However, under Article 13, I will be entitled to a mitigating circumstance that is analogous to voluntary surrender. Some authors call that the OBJECTIVE STAGE and the SUBJECTIVE STAGE. In the objective stage, the actor is still in control of his act. It is still within his means to desist. If he desists, he is not liable. But if he did not proceed not because of his desistance but because of cause or accident other than is desistance, he is liable for an attempted felony. But if reaches the subjective stage where he can no longer desist, then, he has reached either the frustrated stage or consummated stage, depending on whether the crime is accomplished or not. He has gone beyond the stage of attempted felony.

Frustrated Stage

Question: How does the law define a frustrated felony? Answer: In a frustrated felony, the offender has performed all the acts of execution which would produce a felony as a consequence but which, nevertheless, do not produce it by reason or causes independent of the will of the perpetrator.

Question: Distinguish attempted stage from frustrated stage. Answer: In attempted stage, the offender has not performed all the acts of execution, which would produce the felony as a consequence; whereas, in frustrated stage, the offender has performed all the acts of execution, which would produce the felony as a consequence. Sometimes, these two stages are difficult to distinguish. Even the Supreme Court in some old decisions admitted its difficulty. The line that divides the two stages seems to be very thin. The best illustration of determining the stage of a crime is in crime against person which involve an attempt to kill – attempted or frustrated murder or homicide. But there are some crimes, which show very unclear differences, like rape, arson, etc.

PEOPLE vs. BORINAGA 55 Phil 433 Facts: The accused, with intent to kill, approached the victim from behind. The victim was sitting on the chair. The accused had a very long dagger. There was treachery here. He plunged the dagger towards the back of the victim but the dagger hit the wooden frame of the chair. The dagger was imbedded; the victim was thrown forward because it was a very powerful blow. There was no injury to the victim because the dagger hit the wood.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Issue: Whether the felony was an attempted murder or frustrated murder. Held: The crime was frustrated murder because the offender has performed all the acts of execution which would have produce the murder or death of the victim as a consequence but which, nevertheless, did not produce the death of the victim because of a cause independent of the will of the offender, and this cause is the dagger hitting the wooden frame rather than the back of the victim. Note: It is attempted murder. It cannot be frustrated because the offender has not performed all the acts of execution. How can you kill a person unless you hit him? The victim was not even hit. (Dissenting Opinion) So, unless you hit the victim, you have not performed all the acts of execution, which would produce the death of the victim as a consequence. The death of the victim cannot be produced unless you hit him first and he sustains wound that is sufficient to kill, one that is fatal. However, according to the majority, the wooden frame, which hit by the dagger, prevented the victim’s death; it saved him from being hit. You cannot talk of death unless the victim is first hit. In other words, the minority is of the opinion that the offender did not perform all the acts of execution because of a cause or an accident other than his own spontaneous desistance.

Question: Which of the two contending discussions is correct? Answer: In subsequent cases, after Borinaga, it appeared that majority ruling was wrong and the minority view was the correct one. Borinaga should have been convicted only of attempted murder and not frustrated because later decisions rectify whatever error came out in the case of Borinaga. Later decisions came out with a view that in crimes against persons which involve intent to kill, before a person could be convicted of frustrated murder, the prosecution must establish that the victim sustained an injury which could normally kill. Therefore, if the wound is not mortal, then, the crime is only attempted homicide or murder.

Question: Suppose, I shot K but the gun jammed. Is that attempted or frustrated? Answer: Attempted. How can K die when I did not even hit him. The jamming of the gun is an accident other than my own spontaneous desistance.

Question: Suppose, I shot K, but because of my poor aim, he was not hit. What is that? Answer: That is still attempted. How can he die unless I hit him. So, my poor aim is the cause other than my own spontaneous desistance.

Question: Suppose, I hit him but the wound is not really fatal. So, he did not die. Is it attempted or frustrated? Answer: It is still attempted because I have not performed all the acts of execution. How can K die without a fatal wound? So, until the offender inflicts a fatal wound which could normally kill, it can be rightfully

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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claimed that the offender has not performed all the acts of execution which would produce felony as a consequence.

But, supposed, the offender, with the use of .45 caliber pistol, shot the victim in the head blowing off his brain, hit him in his chest blasting his heart and still another shot blasting his liver. Then, the victim was rushed to a hospital. Because of modern apparatus, he was able to survive. This modern science is the cause independent of the will of the perpetrator. I did everything to kill him. Definitely, I’ve performed all the acts of execution. He is supposed to be dead by now. That is frustrated.

Question: A doctor wanted to poison his wife. So, he placed poison in her food. His wife ate the food with poison. When the wife had already swallowed the food, the doctor was bothered by his conscience. He was remorseful; so he administered first aid and forced her to vomit. The wife survived. Was the crime attempted or frustrated parricide? Answer: (Analysis)  In attempted parricide, the offender has not performed all the acts of execution. In other words, it would be attempted if the wife, who has already taken the poison, vomited by herself. When she spit out the poison that constitutes an accident other than the husbands desistance. But if the husband had his conscience stricken before the wife had swallowed the poison, then, there is not even attempted parricide because of his own spontaneous desistance.  But if the wife has already swallowed the poison, and it was already in her stomach, desistance is immaterial. You cannot order the poison to go out the body. He has in fact passed the frustrated stage because he has already performed all the acts of execution. But to convict a person of frustrated parricide, the law requires that the felony did not materialize because of causes independent of the will of the perpetrator. Like you shot somebody but because of timely intervention by a doctor, he survived. But, here, the offender himself saved the wife. In other words, it would not also fit the definition of a frustrated felony.

Question: So, what was the crime committed? Answer: The crime of administering injurious beverage under Article 364. It is a form of serious physical injuries.

Question: How do we distinguish the attempted or frustrated stage of a felony from an impossible crime? Answer: In an impossible crime, the crime to be committed was inherently impossible of commission; whereas in attempted or frustrated felony, the crime is possible of accomplishment, but it was not produced because of a cause or an accident other than the offender’s desistance, or because of causes independent of the will of the perpetrator.

INTOD vs. COURT OF APPEALS 212 SCRA 52

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Facts: Intod and his companions, with intent to kill, fired at the bedroom where they thought the victim was sleeping. It turned out, however, that the victim was in another city and no one was in the room when the accused fired the shots. No one was hit by the gunfire. The accused contends that the crime is an impossible crime under Article 4(2). They performed an act, which would be an offense against persons – murder, were it not for the inherent impossibility of its accomplishment. How can they accomplish when the victim was not there, when he turned out in other places. On the other hand, the prosecution believes that it was attempted murder. They failed to kill him because they failed to perform all the acts of execution, because of a cause other than his own spontaneous desistance. And that cause is the fact that the victim turned out no to be there. Issue: What was the crime committed? Held: The factual situation of the case at bar presents a physical impossibility which render the intended crime impossible of accomplishment, and under Article 4(2), such is sufficient to make the act an impossible crime. To uphold the contention of the prosecution that the offense was attempted murder because the absence of the victim was the supervening cause independent of the actor’s will render useless the provision of the RPC. In that case, all circumstances, which prevented the consummation of the offense, will be treated as an accident independent of the actor’s will. So, the Supreme Court agreed with the accused. It is a case of impossible crime because every time a crime is not committed, because of a cause or accident other than the desistance of the accused, or causes independent of his will, it would be attempted or frustrated. There is no more application of Article 4(2), if we follow the logic of the prosecution.

1994 Bar Question: Jippy, Arias and Randal planned to kill Elsa, a resident of Brgy. Ula, Laurel, Batangas. They asked the assistance of Ella who is familiar with the place. On April 3, 1992 at about 10:00pm, Jippy, Arias and Randal, all armed with automatic weapons went to Brgy. Ula. Ella being the guide directed her companions to the room of Elsa. Whereupon, Jippy, Arias and Randal fired their guns toward the room. Fortunately, Elsa was not around as she attended a prayer meting that evening in another barangay. Jippy, Arias and Randal were charged and convicted of attempted murder by the RTC. On appeal to the CA, all the accused ascribed to the trial its error in finding them guilty of attempted murder. If you are the ponente, how would you decide the appeal? Answer: I will reverse the trail’s court decision and convict them of impossible crime under the doctrine enunciated by the Supreme Court in the case of Intod vs Court of Appeals.

Consummated

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What is a consummated felony? Answer: A felony is consummated when all the elements necessary for its execution and accomplishment are present. The definition of a crime in Book II contains the elements, which you can detect by splitting the definition into parts. And to convict a person of a particular crime, you have to prove all the elements to establish the crime. If all the elements of a crime are present, then the felony is consummated. That’s the simplest test. For example, with intent to kill. A shot B and B died. That is consummated homicide or murder.

Question: But supposed some elements are present and some elements are absent. Suppose a crime is composed of several elements, then the prosecution has established only some of the elements but the others are not, what will happen? Answer There are Three Possibilities:

1.

The accused can be found guilty only of frustrated or attempted felony.

Example:

A, with intent to kill, shoots B. But B did not die because the doctor saved his life.

Question: Is the crime a consummated homicide? Answer: Of course not! It is frustrated homicide.

2.

The accused cannot be convicted of the felony charged in its consummated stage but he can be found guilty of another felony in its consummated stage.

Example: A person is charged with robbery. Robbery is committed when, with intent to gain, one takes personal property belonging to another with violence or intimidation of persons or force upon things. The offender is proved to have taken, with intent to gain , property of another but there was no force upon things, or violence or intimidation against persons.

Question: What crime was proven? Answer: What was proven was the crime of simple theft. Example: A is accused of murder because according to the prosecution, with intent to kill. A shot B and killed him by means of treachery. During the trail, the prosecution proved that the accused shot the victim. He shot A with intent to kill. The victim died but there was no treachery. So, the charge is consummated murder, the crime proven was consummated homicide. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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That is the 2nd possibility. When the prosecution proves less than the elements of the crime charged, the accused can be convicted of another crime also in its consummated stage. In the law on criminal procedure, that means the accused of a crime is convicted of a crime necessarily included in the crime charged. 3.

When a person is charged with a crime consists of two or more elements, some elements are proven but the others are not, the accused should be acquitted because no crime was established.

Example: A accused B of estafa under the Penal code. Generally, the elements of estafa are: a. Misappropriation; b. Deceit or abuse of confidence; and c. Pecuniary damage suffered by the plaintiff. During the trial, the prosecutor proved that the accused was able to get money from the victim and he did not return the money. So there was pecuniary damage. But there was no deceit, no abuse of confidence.

Question: So, what has been proved? Answer: It is a simple loan. Therefore, there is no estafa. It is purely a civil obligation. In the absence of abuse of confidence or deceit, the cause of action is purely civil. No crime is proven but there is civil liability. However, there are certain crimes where you will have a hard time determining the stage of execution.

1.

There is no distinction between the attempted felony and consummated felony.

You have to take note also that in some special crime the attempted stage and the consummated stage are identical. Meaning, when you do it, consummated. When you attempt to do it, it is also consummated. So, there is no distinction between the attempted and the consummated because they carry the same penalty.

Art. 121. Flight to enemy’s country. — The penalty of arresto mayor shall be inflicted upon any person who, owing allegiance to the Government, attempts to flee or go to an enemy country when prohibited by competent authority.

PROBLEM: Philippines is at war with another country. So, all citizens of the Philippines are banned from going to that country. Suppose, in violation of that, you decide to go to that country. When you come back, the government will file a case against you because you visit a country with which we are at war and there is prohibition. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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You really wanted to go. You are on the act of going; you are about to board a plane. You are caught! So, you are not able to go. You attempt to go, consummated. You go and you are caught, consummated also. The attempted and consummated stages are identical, that is why a mere attempt is already considered consummated.

2.

Consummated or Nothing

There are some crimes where there is no attempted or frustrated. It’s either consummated or nothing. Examples: 1. Felony by omission – You failed to do an act which the law commands you to do as a duty. So, if you don’t commit any crime. But if you do not do it, there is a crime. Either you do or you do not do. 2. False Testimony in Court 3. Slander – When you orally defame somebody in public presence; “kawatan ka, rapist pa gyud!”. What did you commit? You have orally defamed the person to put him dishonor. Suppose, you said; “kaw…”, you did not finish. Is that attempted slander? No! Either you say the whole thing or you don’t

Some authors call that Formal Crimes where there is only one stage as distinguished from crimes composed of stages, which are called Material Crimes, like homicide. But even in material crimes, it is also hard to distinguish one from another.

For instance, Arson: You burn a building. Out of 30 rooms, only two are totally burned. The fire was extinguished. So, 2 /30. Question: What is that – attempted, frustrated, or consummated? How much portion of the building must be burned before it becomes consummated, frustrated, or attempted? Answer: According to the Supreme Court, counting the number of rooms or percentage of the building, which was burned, is not the way to determine the stage of execution of arson. No matter how small is the portion burned, that is already consummated arson.

Question: If that is so, how can you commit frustrated or attempted arson? Is there such a thing as attempted or consummated arson? Answer: Yes, that is answered by jurisprudence.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The same thing with rape. According to the Supreme Court, there is no such thing as half measure or quarter measure in a rape. Mere penetration of the labia no matter how slight or momentary, even if there is no emission, consummates rape. If there is sexual intercourse between the rapist and the victim, even how fleeting it is, or how shallow the penetration, that is already consummated. If it is in the act of entering but it is discontinued, that is attempted.

Question: Where is frustrated here? Answer: In one case, the Supreme Court said that there is no frustrated stage in rape. These can only be learned if you know jurisprudence.

Note: Case of People vs Orita Supreme Court held that it was a consummated rape not just only frustrated rape.  Citing People vs Enrile, no frustrated stage anymore and Enrile ruling was a stray decision.  It is well settled that slight penetration consummates rape and perfect penetration is not essential.  Mere touching of the lips of vagina, without laceration of vagina or emission, already consummates rape.

Question:So, based on Article 6, what are the classifications of felonies according to stages of execution? Answer: They are the following: 1. Attempted 2. Frustrated 3. Consummated

Stages of Execution: (From the memory aid of Atty. Angel) 1. Consummated – all elements necessary for EXECUTION and ACCOMPLSIHMENT are present. 2. Frustrated – all the acts of EXECUTION performed but not produce a felony as a consequence by reason of Causes Independent of the will of perpetrator. (Recall: CaIn) 3. Attempted – commences the commission of the felony directly by overt acts, but not perform all the acts of EXECUTION by reason of some Cause or Accident other than is own spontaneous desistance. (Recall: CoRa)

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 7. When light felonies are punishable. — Light felonies are punishable only when they have been consummated, with the exception of those committed against person or property.

GENERAL RULE: Light Felonies under Art. 9 are only punishable if they are consummated. EXCEPTION:

1. Light felonies are committed against persons 2. Light felonies are committed against properties

In other words, light felonies must be consummated to be punishable. So, if the felon is light and it is only attempted or frustrated, there is no liability. It is not possible. In effect, there is no crime and you are not liable. The reason for the rule is that a light felony is merely an infraction of the law. As a matter of fact, even if the light felony is consummated, the penalty is only arresto menor or a fine not exceeding P200. Damage or injury to society or to the public order is negligible. If it is negligible, what possible damage to society is there if the light felony is only attempted or frustrated? It is so microscopic in size that the law would rather not punish it anymore. However, Art. 7 has also an exception: xxx with the exception of those committed against person or property. If the light felony is classified as an offense against persons or property, it will be punishable even if it is only attempted or frustrated. Meaning, those who commit crimes against persons are more perverse than those who violate the other Titles of the Book.

Art. 8. Conspiracy and proposal to commit felony. — Conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefor. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. Article 8 gives us the concept of proposal to commit a felony and conspiracy. Of course, article 8 presupposes that there are at least two persons involved. You cannot give a proposal to yourself and agree with yourself. So, minimum of two. The person proposing the felony, and the person to whom the proposal is made. Note: There is proposal when the person who has decided to commit a felony presupposes its execution to some other person or persons. In other words, a person who has decided to commit felony proposes its execution to some other person or persons. He is not joking. He has decided. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Example: I approach A and say, “I will pay you P 1,000, you assassinate X”. From that time, there is already a crime of proposal to commit homicide of murder, because I decided to commit a crime and proposed it to somebody.

Question: Suppose, the gunman did not agree to the proposal and said; “No, I do not accept.” Is there still a proposal? Answer: Of course, because proposal is unilateral. Once a proposal is made, it is there whether the person to whim the proposal is made accepts it or not. As a matter of fact, the person should not accept because once he does so, there is now an agreement and the proposal becomes a conspiracy. As defined in the RPC, a conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. I propose, you agree. We decide to commit felony. There is now conspiracy. Once the proposal is accepted, it now reaches the stage of conspiracy, and the parties are now covered by the definition of conspiracy. Suppose, at that moment, they are caught and arrested.

Question: Is there an attempted murder? Answer: No, not yet because in murder, the offender must have commenced the commission of the act. So, the fiscal will charge them with the crime of conspiracy to commit murder.

Question: If you are the lawyer of the accused, what will you do? Answer: I will move to quash the information because according to Article 8 mere proposal to commit a felony, mere conspiracy to commit a felony is not punishable. There is no commencement yet; the act is only preparatory. The conspiracy or proposal is only a preparatory act to the crime.

Question: So, is there such a crime of conspiracy to commit murder? Answer: No, because preparatory act is not punishable.

Question: So, what is the legal principle involved in proposals or conspiracies to commit felony? Answer: The rule is they are not punishable. Question: If we agree to rob a bank and before we have started the robbery we are caught. You cannot say there is robbery because we have not even commenced the overt act of robbery. It is just an agreement. Are we guilty of conspiracy to commit robbery? Answer: No. There is no article in the RPC which penalizes the crime of conspiracy to commit robbery. So, in reality, according to article 8, mere conspiracy to commit felony is not punishable. They are only preparatory acts. When I propose the commission of a crime, we agree, we are not yet in the fact of executing the crime. We are still preparing for it and we have learned that preparatory external acts as a ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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rule are not punishable, except when the law provides a penalty for mere preparatory. So, we have to apply the exception here. Article 8 says, “Unless the law specially provides a penalty therefore.” Meaning, conspiracy or proposal is not punishable unless the law makes conspiracy or proposal punishable for certain offenses.

Question: Are there instances when mere conspiracy or mere proposal becomes a felony? Answer: Yes. That is when the law provides penalty therefore. And there are many crimes in the RPC which can be consummated by mere proposal or mere conspiracy, such as the following: 1. 2. 3.

Machinations in public auctions. Monopoly or combination in restraint of trade. Abuses against chastity (as when a public officer or a prison warden makes unchaste proposal to a woman prisoner who is under his custody, there is already a crime.)

But the most famous conspiracies that constitute crimes are those, which are directed against the internal or external security of the State, such as the following: 1. 2. 3. 4.

Conspiracy to commit treason (Art. 115) Conspiracy to commit rebellion or insurrection (Art 136) Conspiracy to commit coup d’etat (Art.136, as amended by RA 6968) Conspiracy to commit sedition.

Question: How about proposals? Enumerate some important crimes in RPC, which are punishable even if they have only reached the proposal stage. Answer: More or less the same. They are the following: 1. Conspiracy to commit treason (Art. 115) 2. Conspiracy to commit rebellion or insurrection (Art 136) 3. Conspiracy to commit coup d’etat (Art.136, as amended by RA 6968)

Question: Is there a proposal to commit sedition? Answer: The RPC is silent. The RPC mentions conspiracy to commit sedition but there is no mention of proposal to commit sedition. Conclusion: proposal to commit sedition is not punishable. There is conspiracy to commit sedition but there is no mention of proposal to commit a crime is not punishable, unless the law provides penalty therefore. In general, mere proposal is not punishable. But in crimes of treason, rebellion, coup d’tat, the State itself is the victim. If you succeed in your treason or rebellion, the State is the victim. Since the crime is directed against the State, the State had the absolute power to prosecute you even if you are only preparing to commit a crime. You do not have to wait for the commencement.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 9. Grave felonies, less grave felonies and light felonies. — Grave felonies are those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Art. 25 of this Code. Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with the above-mentioned Art.. Light felonies are those infractions of law for the commission of which a penalty of arrest menor or a fine not exceeding 200 pesos or both; is provided.

Question: What are the classifications of felonies according to their gravity? Answer: According to their gravity, felonies are either: 1. Grave 2. Less Grave 3. Light

Summary of Classifications of Felonies under the RPC: 1. Article 3 a. Felonies by act b. Felonies by omission 2. Article 3 a. Intentional felonies b. Culpable Felonies 3. Article 6 a. Attempted b. Frustrated c. Consummated 4. Article 9 a. Grave b. Less Grave c. Light

Grave Felonies: Question: How do you determine whether a felony is grave, less grave or light? Answer: It depends in the penalty attached by law to the crime committed. This is a manifestation of the classical theory of criminal law. There must be a proportion between the seriousness of the crime and the penalty. Question: How do I know that a felony is grave?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: According to Article 9, if it is punishable by death or any penalty which the Code classifies as afflictive, it must a grave felony. Question: What are the afflictive penalties? Answer: Under Article 25, you have the following: 1. Reclusion perpetua 2. Reclusion temporal 3. Perpetual or temporary absolute disqualifications 4. Perpetual or temporary special disqualifications 5. Prision mayor So, any crime in the RPC which carries any one of those penalties is automatically a grave felony.

Less Grave Felonies Question: What is a less grave felony? Answer: It is one, which, in its maximum period is punishable by a penalty classified as correctional in nature. If the penalty is correctional, it is less grave.

Question: What are the correction penalties? Answer: Article 25 of the RPC gives the answer: 1. Prision correctional 2. Arresto mayor 3. Suspension 4. Destierro

Light Felonies Question: What are light felonies? Answer: They are infractions or violations of the RPC where the prescribed penalty is imprisonment of arresto menor or a fine not exceeding P200 or both.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 10. Offenses not subject to the provisions of this Code. — Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.

Question: What are the sources of criminal law? Answer: There are two: 1. The Revised Penal Code 2. Special penal laws Question: What is a special penal law insofar as the study of criminal law is concerned? Answer: It has two definitions. 1.

A special penal law is a law, which punishes acts or omission not defined and penalized by the RPC.

Example: Violations of the Dangerous Drugs Act – like pushing – that is not found in the RPC but in another law, that is, RA 6425, as amended. Another is illegal possession of firearms is penalized by PD 1866.

2.

It is a statute enacted by the legislative branch, penal in character, which is not an amendment to the RPC. Congress can pass a law anytime amending the RPC. It is incorporated in the RPC. Congress may also pass a law adding another crime in the RPC. That is not a special law because a special law is intended to stand separately from the RPC; it is no intended to form part of the RPC.

Example: Law on coup d’etat. Article 10 is a statement of whether the RPC should or should not apply to crimes punished by special laws. Crimes in the jurisdiction may be penalized by the RPC or special laws – mala in se or mala prohibita.

Question: Does the RPC apply to crimes punishable by special laws? Answer: The rule is NO. It does not. The provision of the RPC does not apply to special laws because the provisions of the RPC, as a rule, apply only to felonies. However, if the special law is deficient, the provisions of RPC can apply suppletorily of crimes punished by special laws. And in case of conflict between RPC and the special law, the latter shall prevail.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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So, the RPC can still apply to crimes punishable by special laws in a supplementary capacity to provide what is lacking in the special law. But if the special law is complete or sufficient, RPC does not apply. Illustration: A special law is passed penalizing a certain crime. Somebody attempts to commit the crime but does not succeed. Question: Should the offender be liable for attempted violation? Answer: No. If the special law does not penalize the attempted or frustrated stage of the crime, then, the conclusion is that it is not punishable the provisions of Article 6 of the RPC do not apply to special laws.

A case has been decided by the Supreme Court, where the accused was prosecuted for an attempted violation of the Anti-Graft Act. There are many crimes punishable by the Anti-Graft Act, one that is when you cause injury to the government. There was an attempt to case injury to the government – the cheating of taxes. Bu they were merely attempts because it was discovered by the Bureau of Customs. They were charged with “Attempted Violation of the Anti-Graft Act”.

Question: Is there such a crime? Answer: The Supreme Court Ruled that there is none because there is nothing in the Anti-Graft Act which penalizes a mere attempt and Article 6 of the RPC would not apply.

Question: Why is it that the attempted and frustrated felonies do not apply to crimes penalized by special laws? Answer: The reason is because of the penalties. Under the RPC, penalties have their own specific nomenclatures, like death, reclusion perpetua, prision maor, etc. and there is a scale of penalties. The general rule is that the penalty for the attempted or the frustrated stage is one or two degrees lower than the penalty prescribed for the consummated felony.

But in special laws, penalties are not denominated as prision mayor, etc if found guilty, you are sentenced to imprisonment for say, 1 to 5 years or 9 years. That’s the penalty. There is no more one or two degrees lower or higher because there will be no basis for the penalty. If the special law says that the act of doing that is a crime, then, the attempt or frustration to commit it cannot be a crime. In other words, you cannot apply by analogy the attempted or frustrated stage. In the first place, you have no basis for the penalty. The basis for attempted or frustrated is the penalty for the consummated crime – prision correctional, reclusion temporal, etc. – one or two degrees lower, as the case maybe. The same principle will control with respect to the liability of the accomplices and accessories under Articles 17 to 20. If the special law does not penalize the accomplice or the accessory, then, only the principal is held liable because, again, there is no basis for fixing the penalty for these people, in the absence of rules on graduation of penalties.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Moreover, the Supreme Court said as a general rule the provisions of mitigating and aggravating circumstances do not apply to special laws because they only apply to penalties prescribed by the RPC. Penalties under special laws do not have minimum, medium or maximum period.

Exception The exception is if the special law is insufficient and there is no conflict anyway, then, the provisions of the RPC may be applied in supplementary manner.

Question: A special law borrows the penalties under the RPC, can there be a penalty for the attempted or frustrated crime? Answer: Yes, because there are now attempt to borrow the principles in the RPC, you can now apply the RPC in a suppletory manner.

The perfect example would be RA 7659, the Heinous Crime Law, which amended the Dangerous Drugs Act, adopting the penalties of the RPC. The penalties in the RPC are now adopted in RA 7959. With that, the intention is to make the RPC supplementary.

Question: Suppose a person is convicted of possession of illegal drugs. After he is convicted , what will happen to the exhibits? Will it be returned to him? Answer: Of course not. It should be forfeited be the State.

Question: If the law is silent, what will the court do? Answer: Apply the RPC.

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed. You can apply it suppletorily because such is not there. There is no conflict between them.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Chapter Two JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY Question: What are the five circumstances affecting criminal liability of a person under the RPC? Describe each and cite two examples: Answer: The following are the circumstances affecting criminal liability: RECALL: JEMAA (Memory aid; from the notes of Atty. Angel) 1.

Justifying Circumstances - Those where the act of 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 criminal and civil liability, except in paragraph 4 (state of necessity/ emergency rule) where the civil liability is borne by the person benefited be the act. - Examples are: self-defense, fulfillment of duty or lawful exercise of a right or office.

2.

Exempting Circumstances - Those grounds for exception from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary, or negligent, such as intelligence, freedom of action, intent or negligence. - Examples are: imbecility and minority

3.

Mitigating Circumstances - Those, which, if present in the commission of a crime, do not entirely, free the actor from criminal liability, but serve only to reduce the penalty. - Examples are: incomplete self-defense, the offender had no intention to commit a wrong as that committed.

4.

Aggravating Circumstances - Those, which, if attendant in the commission of a crime, serve to increase the penalty without, however, exceeding the maximum penalty provided by law for the offense. - Examples are: treachery and recidivism.

5.

Alternative Circumstances - Those, which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending to the commission. - Examples are: relationship and intoxication.

Synopsis: Number

Circumstance

Article

6

Justifying

Article 11

7

Exempting

Article 12

10

Mitigating

Article 13

21

Aggravating

Article 14

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Alternative

Article 15

Art. 11. Justifying circumstances. — The following do not incur any criminal liability: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself. 2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those consanguinity within the fourth civil degree, provided that the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the provocation was given by the person attacked, that the one making defense had no part therein. 3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first circumstance of this Art. 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.

Question: What is the definition of that? Answer: Well, the word justifying is a hint. Justifying circumstances are those, which, if attempting the commission of an act, make the act lawful. The act is lawful; it is justified. It is in accordance with law. Therefore, the act is not a crime.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Memory Aid (from the notes of Atty. Teodoro V. Angel) Justifying Circumstances D

1. Anyone who acts in defense of his person or Rights, provided that the following circumstances concur; First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself.

R

2. Any one who acts in defense of the person or rights of his Relatives such as spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those 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 revocation was given by the person attacked, that the one making defense had no part therein.

S

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 Art. are present and that the person defending be not induced by revenge, resentment, or other evil motive.

A

4. Any person who, in order to Avoid an evil or injury, does not act which causes damage to another, provided that the following requisites are present; xxx

R

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a Right or office.

A

6. Any person who Acts in obedience to an order issued by a superior for some lawful purpose.

(Recall DR SARA)

Elements of Self Defense: 1. 2. 3.

Unlawful aggression. Reasonable necessity of the means employed to prevent or repel it. Lack of sufficient provocation on the part of the person defending himself.

(Recall URL) Elements of defense of relative 1. 2. 3.

Unlawful aggression. Reasonable necessity of the means employed to prevent or repel it. In case of Provocation was given by person attacked, one defending had no part therein.

(Recall URP) ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Elements of defense of stranger: 1. 2. 3.

Unlawful aggression. Reasonable necessity of the means employed to prevent or repel it. Person defending is Not induced by revenge, resentment or other evil motive.

(Recall URN)

Avoidance of Greater Evil or Injury E G O

1) Evil sought to be avoided actually exists. 2) Injury feared Greater than to avoid it. 3) No Other practical and less harmful means preventing it.

(Recall EGO)

Fulfillment of Duty or Lawful Exercise of Right or Office Per Due

1) Accused acted in Performance of duty or lawful exercise of right or office. 2) Injury caused as necessary consequence of Due performance of duty or office.

(Recall PerDue)

Obedience to Superior Order O P M

1) Ordered issued by superior. 2) Lawful Purpose (or at least patently lawful) 3) Means to carry out order also lawful.

(Recall OPM)

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur; First. Unlawful aggression. Second. Reasonable necessity of the means employed to prevent or repel it. Third. Lack of sufficient provocation on the part of the person defending himself.

Self-defense only applies to crimes against persons, as when you are accused of homicide, murder, or physical injuries. Meaning, it applies to crimes against persons when you are accused of the death of or injuring somebody, and you claim that you had to do it because you had no choice. I had to act in defense of my person. Question: Who bears the burden of proof? Answer: Generally, it is the prosecution’s job to prove the guilt of the accused who is presumed innocent. However, as these are manners of defense, the burden is shifted to the accused. It is for him to prove these circumstances; it is not for the prosecution to prove them.

Question: Why? Answer: Because when you invoke self-defense, you automatically admit that you killed the other, that you are the author of his death (in case of homicide or murder). So, you better justify the death of the victim. Give a good explanation as to why you should not go to jail for killing a human being. That is why the Supreme Court said that defense of self-defense should be proved by clear and convincing evidence which is approximately proof beyond reasonable doubt.

Question: Why does the law allow self-defense? Answer: There are two reasons: a.

It is the duty of the State to defend its citizens. That is why the State has a law enforcement agency, the PNP – to protect the citizens from the assault of others. But this agency has gained a negative image. People believe that the policemen, who are supposed to secure, protect and defend us from criminals, are the very same people involved in crime nowadays. Theoretically, it is the job of State to protect us. That’s why we pay our taxes for peace and order. But the State recognizes the fact that it could not protect everybody 24 hours a day. That is impossible. That is tantamount to asking the State to assign one policeman for every citizen. We have to be realistic. The State cannot afford it. It does not have the manpower to defend everybody 24 hours a day. Therefore, if somebody attacks you, and there is no policeman to defend you, you defend yourself. If in the process, it becomes inevitable for you to disable or kill the attacker, you are

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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not liable because you are only doing what the State should be doing for you. So, the State cannot take that against you. You only have assumed the obligations of the State. It is recognition of the natural law of self-preservation. Every living being, whether animal or plant, has the instinct for self-preservation. So, the concept of self-defense only acknowledges the natural instincts of man. It is absorb to expect a person not to defend himself when he is under attack because there is a natural instinct for selfpreservation.

Note: To prove self-defense; it requires the concurrence of these three elements. Unlawful Aggression Without which, there could be no self-defense. It is indispensable in the sense that there could be unlawful aggression even without the second and third elements. But the second and third elements cannot exist without the first. That is really indispensable. The existence of the second and third presume the existence of the first is out, all there are out. And if either of the second or third elements is lacking, as long as there is unlawful aggression, it constitutes an incomplete self-defense, which is a mitigating circumstance.

Question: Define aggression. Answer: Aggression, as contemplated by the law, means a physical attack. An aggression, which can cause you injury or even death, like somebody stabs you or beats you with a club. So, if there is no physical aggression to speak of.

Example: A started to insult B, uttering derogatory remarks against B. B hit back and injured A. For the injury sustained by A, B pleads self-defense. Question: Can B invoke self-defense? Answer: No, B cannot claim that he acted in self-defense because B was the aggressor. There can be no selfdefense here because the aggression is verbal. What the law contemplates is physical attack. Insulting words, no matter how slanderous, cannot cause death or physical injuries. It is directed against your name or honor, but not your body. So, that does not constitute aggression within the meaning of Article 11(1).

Note: Remember also the certain important doctrines in self-defense. i.

When one claims self-defense, the law assumes that there is no mutual agreement between both parties to fight, when there is mutual agreement to fight, no one can claim self-defense and each one is susceptible for each one’s injury.

Example: The people agree to fight and in the course of the fist fight; A inflicted injury on B. B inflicted injury on A. Each one of them files a case against the other for the injuries. They ended up suing each other for physical injuries. And ob course, the defense of both is self-defense. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Who is entitled of self-defense? Answer: No one is entitled. When both of them became an aggressor against the other, no one can claim self-defense. In fact, each of them is liable for the other’s injury. “By agreement”, means that there is no need of a written contract. A verbal agreement is sufficient. ii.

A person does not have to be concerned against the wall before he can lawfully defend himself from an unlawful aggression.

The old concept if self-defense is “retreat to the wall”. One can only act in self-defense if he is concerned. Meaning, if somebody is going to kill you, try to avoid him. But if you are already concerned, you have no more means of escaping that is the only time you can defend yourself. But that concept has already been DISCARDED. The rule now is maintaining your ground when in the right. Meaning, if you are walking peacefully and here comes somebody who wants to stab you, there is no obligation to run. There is no rule, which requires you to run away, and then when you are already concerned, that is the only time you can act. If somebody is going to kill you with a knife, if you are brave, do not run away. Wait for him and then defend yourself. If you kill him, you still invoke self-defense. It cannot be taken against you. The rule is stand ground when you are right. You have the right to act where you are because you are not the aggressor.

There are two types of aggression: 1. 2.

Lawful Aggression Unlawful Aggression

Lawful Aggression Example: Aggression by a public officer who is acting in the fulfillment of a duty to effect an arrest. Question: How does he arrest the person? Answer: According to the Rules of Court, the arresting officer can use such force as may be reasonably necessary to affect the arrest. And because he can force in the process of effecting the arrest, the policeman may become an aggressor. Suppose, here is a thief running with his stolen items. The police are after him. The thief hits back at the policeman. Now, suppose the police sues him for direct assault. The thief invokes self-defense. His defense is that the policeman is an aggressor. If the policeman did not try to arrest him, he would not hurt the policeman. The latter should have left the policeman alone. That cannot be! There is aggression, but it is LAWFUL aggression. That is the duty of the policeman, so his aggression is lawful in nature. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Unlawful Aggression Example: If you are walking on the street peacefully and here comes somebody with a knife. He tries to stab you with it. That is unlawful aggression. Unless he can point to a law which authorizes him to approach anybody and stab you. By “unlawful aggression”, it means that there is danger to your life and limb. Aggression can either be an actual or threatened aggression. Aggression need not be actual; it could also be a threatened. Note: There is no problem if the aggression is actual. If it is actual, it is on going.

Question: But does the law expect the aggression to commence before you can act in self-defense? Answer: No, the law does not really require a person to wait before defending himself because it might be too late. The law would be demanding too much if it requires that the person defending must first wait for the aggressor to pull out his gun from his waist before the former can defend himself. When the law says “unlawful aggression”, it contemplates of actual aggression or threatened, imminent aggression. A threatened aggression amounts to actual aggression.

Question: When does a threatened aggression amount to actual aggression? What is the TEST given by the Supreme Court? Answer: The criterion reached by the Supreme Court is a threatened aggression amounts to actual aggression, if the threatened harm is imminent or on the point of happening. Meaning, maybe in less than one second, you are dead. Your enemy beat you first. So, that is the criterion – imminent or at the point of happening. Therefore, if it does not meet that standard, it is not unlawful aggression.

People vs Cabungcal 51 Phil 803 Facts: The accused is a boatman. His occupation is to transport people across a channel. Just like the means of transportation when you go to Samal Island. Once, after the fiesta in the island, some passengers went on board including a drunken man. In the middle of the sea, this drunk passenger started to rock the banca. The accused warned him. Don’t do that, we might capsize. But the drunken passenger continued to rock the banca. So, the accused hit this drunken man and the latter fell. But he surfaced and threatened that he would capsize the banca. In so saying, he again started to rock it, to the point that the women and children passengers panicked. So, the accused hit his back with the paddle. This made the drunk to drown and died. Issue: Was there unlawful aggression? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Held: Yes, the accused does not have to wait to find out if the drink passenger was serious or joking. If he was able to turn it around, they will all die. People will start drowning.

Due to the condition of the river at the point where the deceased started to rock the boat, if it had capsize, the passengers would run the risk of losing their lives, the majority of whom were women especially the nursing child. The conduct of the deceased in rocking the boat until the point of it having taken in water and his insistence on this action despite of the accused warning, gave rise to the belief on the part of the accused that it would capsize if he did not separate the deceased from the boat in such a manner as to give him no time to accomplish the purpose. It was necessary to disable him momentarily. If you will say that the accused will have to wait to see if the drunk will be able to capsize the banca, you are running the risk of all possibilities that the banca will sink in the middle of the sea. To tarry for a while might be too late. That is already an actual aggression. There will be more dead if the accused waited. So, the alleged offender there did not act in defense of his person, but also of strangers.

Example: Suppose, you are inside your house in the second floor, then, somebody from below shouts at you challenging you to fight, wait there and I will kill you! He’s going to kill you to beat him to it. You killed him first. You are now prosecuted for his death. You claim self-defense, because there was a threat. Question: Is the threatened harm imminent? (Take note that he is still has to go up) Answer: No, the threatened harm is not at the point of realization. A threatening attitude assaults amounts to actual aggression. That is not self-defense. The most you can invoke there is the mitigating circumstance of sufficient provocation or threat on the part of the offended party immediately preceding the act, under Article 13(4).

So, it is a question of evidence. Is there harm now or on the point of happening? Is there death now or on the point of happening? If the answer is no, then the threatened harm does not amount to unlawful aggression. It is a future aggression. You have no right to act now simply because there is a threat.

Another important principle in unlawful aggression is the rule lay down by the Supreme Court that you can only act in self-defense when the aggression is ongoing or about to begin. But once the aggression has ended and because you wanted to get even, you hit back, that is no longer self-defense. That is retaliation, getting even. The rule to remember is when the aggression has ceased; there is no more room for aggression because the danger to life and limb has ended.

Example: Suppose A attacked B, and B landed on the ground, sustaining many blows. Then A left. When A left, B stood up, chased A and attacked him. B killed A. B claimed that the killing of A is self-defense because it was A who attacked him first.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Is B entitled of self-defense? Answer: No, because of the rule that you could only act in self-defense while the aggression is still on or going to start.

People vs Alconga 79 PHIL 366 Facts: The victim here was playing cards – blackjack. He was the dealer until he noticed that he was losing. He suspected Alconga as the one giving the signal to the winning party. So, he started to attack Alconga by hitting him with a cane. Alconga had to run to the bench but the dealer continued hitting him. This made Alconga think that the victim was serious. He had to draw his gun, fired at the dealer and inflicting a wound. When the dealer realized that this time he was wounded, he ran away. Alconga started to chase him, overtook and fired the second shot, killing the victim. Alconga was accused of homicide, and his defense was self-defense. Held: There was no self-defense. When the dealer started to hit Alconga, that constitutes unlawful aggression. So, that when Alconga shot the victim, he was justified in doing so as he was only acting in selfdefense. But from the moment the victim ran away, the danger to Alconga’s life and limb ceased. The unlawful aggression has ended and therefore, there was no more reason for Alconga to fire the second shot. But when Alconga gave chase and overtook the victim, he was no longer acting in self-defense. As a matter of fact, at that stage of the fight, Alconga became the unlawful aggressor. In other words, there seems to be two stages of fight: the first stage where victim was the unlawful aggressor, and the second stage where Alconga became the unlawful aggressor because after the first stage was over, by reason of the running away of the unlawful aggressor, there was no more room for selfdefense because the danger to Alconga’s life and limb has ceased. That is already retaliation. That is not the concept of self-defense.

Another point that you will notice in the law of self-defense is that the law says that self-defense applies to anyone whoa acts in defense of his person or rights. There is no question about “person”. When somebody is trying to hurt or kill me, I can act in defense of my person. But the problem is the “rights”.

Question: What are the rights, which can be defended under Article 11(1)? Answer: The right to chastity of a woman. For example, a guy is about to rape a woman and the woman killed the would-be rapist. She is accused of homicide. She can claim that she acted in self-defense. Although rape is not considered as a crime against person, but against chastity, a woman’s right to defend her honor from sexual attack is considered as a right similar to defending one’s person under Article 11(1). Note: Rape now is a crime against person. What is controversial here is whether the right to protect one’s property can give rise to selfdefense under Article 11(1). If, for example, a thief or robber tries to run with your wallet or jewelry, and in ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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order to stop him from running away, you shoot him to death. Can you now claim self-defense? There was unlawful aggression on your property right because there was an aggression on my property right? Is that a valid defense? Answer: No, defense of property can give rise to self-defense under Article 11(1) only if the attack on one’s property is coupled with an attack on his person. Like for example, a robber tried to get your money and when you tried to resist, he drew out his knife. So, you have to give him your money. Suppose a robber entered your house and in getting your property, he tried to kill you killed him first.

Question: Are you entitled to self-defense? Answer: Yes, because the attack or aggression on your property was coupled with an attack against your person.

Question: But suppose, when that same robber saw you, he started to run away, but when he was about to jump the window, you shot him. Are you acting in self-defense? Answer: No, because there is no assault on your person. What justified killing is not the assault on the property right, but the assault or attack on one’s person. So, it must be coupled with an attack on one’s person. The reason is simple: the value of property can never be equated to human life, which is supposed to be priceless.

People vs Narvaez 121 SCRA 389 Facts: There was a land conflict between a big corporation and some persons, one of whom was Narveaez. He had a house and a rice mill, which the corporation wants to get from him. One day, after sleeping inside the house, he woke up and saw men hammering away. They were putting up a fence around the property. So, Narvaez got his riffle and fired at them, hitting one of the victims. The others started to run towards the jeep to get their arms. Narvaez also shot and killed all of them. He was charged with homicide and his defense is that there was unlawful aggression against his property. But there was no danger to his life. The aggression against is property was not coupled with an attack against his person. Held: Strangely, he was acquitted. This was self-defense. The act of the victims in ordering the fencing of the home and rice mill of Narvaez constitutes unlawful aggression against his property. Note: This is a stray decision. It cannot be reconciled with the general rule. This should not be considered as the controlling rule because it is in fact an aberration.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Reasonable Necessity of the Means Employed to Prevent the Aggression

Question: What do you prevent? Answer: You prevent an actual aggression. You repel a threatened aggression. But in either way, you must use reasonable means. Question: What do you mean by reasonable means? Answer: Reasonable means refer to two means: 1. The course of action taken is reasonable; and 2. The weapon used to defend is also reasonable. Course of action taken by the offender means his conduct and response to the occasion whether your reaction is reasonable or not.

Question: How do you determine the reasonableness of one’s reaction to the aggression? Answer: It depends on the factors. It depends on the circumstances of the person, time and place.

Question: If somebody is walking in a very dark street which is a very dangerous area, and all of the sudden somebody in the dark held him tightly at the back, and he responded by hitting his attacker, could you say that the reaction of the person is reasonable? Answer: Yes, based on the circumstances of time and place.

But, for example, you are inside the classroom, and then you feel somebody behind you. He touched you, then you turned around and threw a punch on his face because he might attack you. That is a different story. That is not reasonable.

Reasonableness of the weapon used: The law does not require perfect equality of weapons. What the law requires is reasonable equality. This does not mean to say that you should not use a gun because the aggressor is attacking you only with bolo or knife. A gun is more powerful than a bolo or knife, but you are now placed in danger because of the aggression. It is not perfect equality but reasonable, considering the fact that when a person is under attack, instinctively he will use the first available means at his disposal to defend himself, and when a person is under unlawful aggression, you cannot expect him to think coolly and to choose what kind of weapon to use.

Example: Somebody attacks you with sticks; does it authorize you to use your gun? It is unreasonable for a person, while being attacked by somebody with a Chaco, to use an M206 submachine gun to defend himself. That is too much! Obviously, there is no proportion between the weapon used by the aggressor

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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and the one used by the person defending himself. The weapon used by the aggressor is not sufficient to kill. Why will you use a weapon that can kill? However, reasonableness of the weapon is not only measured by – using a knife as against a fist, using a club as against a Chaco. You also consider the following :  The size or power of the weapon  The character of the parties  Their relative standing.

Size So, if somebody attacks you with a knife, and then you defend yourself also with a knife, you cannot say that the means is reasonable because his knife is larger, and yours is shorter.

Power The law says the means is reasonable if a gun is used to defend yourself from somebody who attacks you with a knife. You say that is reasonable because a gun is more powerful against a knife. Not all things are being equal. A knife can also kill especially if the assailant succeeds.

Character of the parties and their relative standing; Maybe it is unreasonable to use a knife when somebody attacks you with a fist, one-by-one. But when five or ten people attack you with their fists, and you use a knife against them, that is reasonable.

Question: When we say reasonable means, are we referring to weapons? Is this the only factor? Answer: No, there are other factors. You, too, will have to consider the number of aggressors.

Example: You were attacked by fist blows and you used a knife or club to defend yourself. IT might be unreasonable because you should also use your fist, that is true. But all things being equal, suppose the aggressor who attacks with a fist is Manny Pacquiao, you are not required to use fist. It is reasonable for you to use a club because considering the relative strength, you might have the chance with a club. Or you are attacked by seven men. There are seven who maul you, and you are alone. Here, you may use a club.

Question: What is that called? Answer: The Number of Aggressor Rule. So, that is the balance. Reasonable equality, not perfect equality. Lack of sufficient provocation on the part of the person defending himself.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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If you are a victim of unlawful aggression, even if you defend yourself reasonably, still you cannot claim self-defense if you were the cause of the aggression, because you gave sufficient provocation. You are also at fault. You are partly to blame for the other party’s reaction. So, I provoked you and because of that provocation you attack me and I have to defend myself with reasonable means, I cannot claim self-defense because I am also at fault.

Question: What are the principles to be remembered under the 3rd element? Answer: First, there was no provocation at all on the part of the person defending himself. Without doing anything, somebody attacks you. There was total absence of any provocation. Second, the person defending himself might have given some provocation but it is not sufficient. In the sense, the law allows him to plead self-defense because, even if he gave provocation, it is not commensurate with the reaction on the attacker.

Question: How do you determine the sufficiency or insufficiency of a provocation? Answer: The guide there is the provocation that you gave is such that is normal and natural for him to react by becoming an unlawful aggressor. Meaning, if I uttered a remark, which is annoying or irritating, it does not justify you start to kill me. I can still plead self-defense because the reaction is not commensurate with the provocation, assuming there is one, is not sufficient. Example: Like in one case, a landowner saw somebody trespassing on his land. One day, he watched out him to pass by. When the landowner saw the trespasser, he asked why are you passing by my property? Who gave you the permission? The guy did not answer, but instead killed him. Question: Was there sufficient provocation? Answer: Maybe yes. If the landowner did not confront the accused, he would not have been killed. Does this mean that the landowner had no right to ask a trespasser? The landowner could have given the provocation, but that is not sufficient for a trespasser to kill the owner. The accused was only asked. And the landowner has the right to ask him.

Third, the person defending himself might have given sufficient provocation, but his provocation was not immediate to the act of aggression, he can still invoke self-defense. Example: I provoked Mr. A today, but he did not react. Then, after six months, when we met at San Pedro St., he started to attack me. So, I have to defend myself. Question: Can I claim self-defense? Answer: Yes, because the provocation was not proximate or immediate to the act of aggression. IT is different if I provoke you now, you react immediately.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Meaning, I gave a provocation now, sufficient provocation. You attack me and I kill you, there is no self-defense because of the absence of the 3 rd element. But id I gave a provocation now, and then you attack me one year from now, and I kill you, I can claim self-defense. You cannot invoke the provocation I gave last year to defeat my claim for self-defense. Note: Three is a close co-relation between the first and the third elements – unlawful aggression and lack of sufficient provocation. An aggression may also be a provocation. When I attack you that could be a provocation on my part for you to be also aggressor against me. My aggression, which should work against me, could be a provocation on my part in order for you to also become an aggressor. It is convertible. That is very illustrated in the case of Alconga. The deceased attacked Alconga with a club. So, the deceased is the unlawful aggressor. Then, when Alconga fought back and the deceased realized that he was wounded, the deceased run away. So, there is no more aggression but Alconga pursed him and killed him. Alconga was accused for the death of the victim.

Question: Can the victim, who is now accused, claim self-defense? Answer:  Was there unlawful aggression by Alconga?  Yes, he went after the man to kill him.  Did he use reasonable means to kill Alconga?  We will assume that.  Was there lack of sufficient provocation on the part of the person defending himself?  No. Why did Alconga want to kill him? It was because he wanted to kill Alconga at the first stage of the fight. So, his aggression earlier became a provocation on his part in the second stage of the fight. So, if that was what happened that Alconga was the deceased and the deceased was the accused and latter invokes self-defense, still he cannot claim self-defense because this time, there is the absence of the 3rd element. That is how you correlate those two elements. Either way, Alconga could claim self-defense.

2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those 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 revocation was given by the person attacked, that the one making defense had no part therein. That is called the justifying circumstance on DEFENSE OF RELATIVES. If you act for the defense of yourself, there is no reason why you cannot act for the defense of your relatives. That is based on two reasons: humanitarian and blood ties.

Question: Who are considered your relatives? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: They are:     



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Spouse Ascendants Descendants Brothers and sisters, whether legitimate, illegitimate, natural or adopted Relatives by affinity, within same degrees, like: o Parents-in-law o Son-in-law o Daughter-in-law o Brother-in-law Relatives of consanguinity within fourth civil degree

Question: What are the elements? Answer: 1. Your relative must be a victim of unlawful aggression If your relative is the aggressor, and you came to aid to finish off his opponent, you cannot claim defense of relatives. 2. You have also to use reasonable means – reasonable necessity of the means employed to prevent or repel the aggression. 3. The one making the defense had no part therein. In case your father or brother gave the provocation to attack, you can still defend him if you are not part of the provocation. The law dies not say that your relative must be the provocator. If your brother has not provoked anybody and is attacked, all the more that you can legally defend him: it’s better that your brother has not provoked anybody and is attacked, you can defend him. But if your brother or your father provoked somebody, and your brother or father attacked, he cannot invoke complete self-defense because his provocation will prejudice him. However, even if it prejudices him, it will not prejudice you. While he may not act in lawful self-defense, you may still act in lawful defense of relative because what is important is that you have no part in the provocation.

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 Art. are present and that the person defending be not induced by revenge, resentment, or other evil motive. Briefly: Defense of Strangers

Question: Define a stranger. Answer: A stranger is a person who is not among the relatives in paragraph 2. So, if you defend a relative in the 5th civil degree that is already a stranger. The word “stranger” is not literal as somebody who is unknown to you. If you have a best friend, you see him being attacked and you came to help him that constitutes defense of stranger. So, stranger is practically the human race.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Why? What is the principle behind defense of stranger? Answer: Humanitarian reasons. What you can do for yourself, the law allows you to do it for others. My fellowmen, my keeper. That’s a noble principle.

The elements are the same with the two first elements of self-defense. 1. Unlawful aggression 2. Reasonable necessity of the means employed to prevent or repel the aggression 3. That the person defending be not induced by revenge, resentment or other evil motive. So, what differs this is third element. It means that you were motivated by humanitarian sentiment. You really did it to defend the stranger. You were not induced by revenge, resentment, or other evil motives. Example: I am looking for my enemy because I want to kill him and then when I saw him, he was attacking somebody, so I entered the scene and killed him. Let us assume these things are established because these are matters of evidence. Question: Am I entitled to complete defense of stranger? Answer: No, actually it was just coincidence that my enemy was attacking a stranger and since the aggressor was my long time enemy, it was apparent that I was induced by revenge, resentment, or other evil motive.

4. Any person who, in order to avoid an evil or injury, does not act which causes damage to another, provided that the following requisites are present; Briefly, this is justifying circumstance of State of Necessity or the Emergency Rule. You are confronted with a situation where you are left with no choice because either way you do it; you also cause him harm, injury, or damage to the property of another. In order to avoid evil or injury to yourself, you commit acts which would also injure others, provided that the three requisites are present. Examples: 1.

If the injury is greater than that done – injury feared in death. You are driving your car in the highway, observing traffic rules and regulations. That all of a sudden in front of you is an over speeding 6x6 truck straight to your direction. What will you do? If I will drive on you will be squashed to death. If you stopped, you will be killed. You only recourse is to turn left or right to avoid collusion. But if you turn left, you will fall into a cliff and surely you will die. The only alternative is to turn right, but by turning right, there are people who will surely be ran over. Since you have no choice, you have to adopt the only remaining alternative through which you can save your own life and for the death or injury to those people that you would run over, you could invoke the emergency rule or state of necessity.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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But suppose, I am also over speeding and even if I apply brakes, I will still collide with the truck. Then I cannot avail of this rule in case I injure or kill somebody because the emergency rule cannot invoke by the person who caused the state of emergency. 2.

To save more properties from fire, a property will be sacrificed – destroy three or more houses to save fifty houses.

3.

To save a vessel and people’s lives, the cargoes will be jettisoned.

Note: No one can invoke emergency rule if he brought out the emergency himself. One who causes the emergency rule has no right to invoke the emergency rule.

Like a person who is over speeding and saves his life by killing somebody. He wanted to avoid collision. He is not entitled to the rule because he is the one who brought out emergency himself. As we shall see later, and even as expressed in Article 101 of the RPC, this is the only justifying circumstance where there is no criminal liability, but there is civil liability. Normally, the person who successfully invokes and proves any of the justifying circumstances under Article 11 does not incur any criminal liability. This paragraph is where there is no criminal liability to be borne by the persons benefited by the act.

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. This provision is short, but actually, it talks of three separate and distinct justifying circumstances:  One who acts in the fulfillment of duty  One who acts in the exercise of a right  One who acts in the exercise of an office

Question: What are the requisites? Answer: 1. That the accused acted in the performance of a duty or in lawful exercise of a right or office. 2. That the injury caused or the offense committed be necessary consequences of the due performance of a duty or the lawful exercise of such right or office.

In the fulfillment of duty The best example for this is applicable to law enforcement officers because in the performance of their duty, they can hurt people. Arresting officers, who authorized to employ reasonable force sometimes, injure and then the person arrested sues the policeman for physical injury or even homicide.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What would be the defense of the policeman? Answer: He acted in fulfillment of his duty. But take note that in order to avail of this justifying circumstance, it must be established that is a proper fulfillment of duty. A policeman cannot simply commit homicide when there is no need for him to kill person to be arrested. In that case, the fulfillment of duty would be improper.

The use of force may be improper if the person to be arrested is peacefully surrendering. So, for example, if the guy is surrendering, there is no need to use force. Moreover, if the person who surrendered sues you for using force against him, then you cannot claim that it is a fulfillment of a duty because your act is improper. The Rules of Court requires that the use of force must be reasonable.

People vs Delima Facts: Policeman Delima is tasked to arrest a dangerous escapee-convict. When he tried to apprehend the convict, the latter fought back with a sharpened bamboo pole. But the policeman was able to evade the attack and the convict turned around and ran away. So, Delima had to shoot him. He was accused of homicide. Issue: WoN Delima is liable for homicide. Held: He is not liable because he acted in the fulfillment of duty to arrest the convict. There was no other way of apprehending the victim and the latter showed that he was resisting the arrest. As a matter of fact, he attacked Delima earlier and he was running away, he was taking with him the bamboo pole. That showed his determination not to surrender. There is no other way of catching him alive and the only way is to kill him. This Delima case is often confused with the Alconga case. In the case of Alconga, the victim was already running away, he was chased and killed by Alconga. The court ruled there that Alconga was liable. How come here in this case the ruling is different when the facts are identical because here the victim was also running away, and so, there is no more unlawful aggression?

Question: Is there a conflict between Delima and Alconga ruling? Answer: There is no conflict because Alconga case was decided under paragraph 1 on self-defense, the Delima case is decided under paragraph 5, on fulfillment of duty. The ruling in Alconga was based on the fact that in self-defense, there is need for unlawful aggression. There can be no self-defense without unlawful aggression. That’s why since there was no more unlawful aggression, Alconga cannot invoke selfdefense. But in the fulfillment of a duty, paragraph 5 does not require that the person fulfilling his duty must be the victim of an unlawful aggression. As a matter of fact, the law recognizes that in the fulfillment of duty, the law enforcement officer himself maybe the aggressor, but for as long as the exercise of his duty is proper, he cannot be held liable for any injury sustained by, or death of the person arrested. That is why there is really no conflict between

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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the two rulings because the philosophy behind self-defense is not the same as the philosophy behind the fulfillment of a duty. For example, the policeman is going to arrest you and then you tried to kill him, instead of surrendering. So, the policeman killed you. What is the difference? As a matter of choice, I can invoke selfdefense, but he could also claim fulfillment of duty. But when you turn your back and run away, you don’t give up to the policeman has no choice, so he killed you. Self-defense is not anymore there. But he can still rely on paragraph 5 – fulfillment of duty.

In the exercise of a right Question: Is there such a thing a self-defense of property? Answer: Under paragraph 1, there is none, because in order to invoke self-defense of property, under selfdefense, there must also be an attack on your person and if there is none, there is no such thing as defense of property. That is not one of the rights contemplated under paragraph 1. But there is such an animal as defense of property under paragraph 5, when the accused can prove, due exercise of a right. Now this paragraph 5 is the real law on self-defense of property. Question: What law gives the right to an owner or possessor of a property to defend his property when he is unjustly attacked? Answer: The Civil Code, which is called as the Doctrine of Self-Help.

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. (n)

A lawful owner of a property has the right to defend his possession of the property and for this purpose he may use such force as may be reasonably necessary in order to prevent or repel an actual or threatened invasion of his property.

Question: If, for example, a group of people is going to forcibly occupy your land, do you have the right to drive them out? Answer: Of course! Question: If you are sued by these people for driving them out, what is your defense? Answer: The right to defend your property. But do not invoke Article 11(1), instead you invoke paragraph 5 because you are acting in the exercise of a right. But take note, under Civil Code, the use of force to defend your possession of property must be reasonable. For example, a pickpocket grabbed your expensive watch. You chased him. In order to prevent ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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him from escaping, you drew your gun and shot him in the leg. As a result of which he could no longer run. You are able to recover your watch. He sues you for physical injuries for the wound you inflicted in his leg.

Question: What will be your defense? Answer: Do not invoke self-defense, as it is not covered. So, you say that you acted in the exercise of a right to prevent or repel the act of the victim in getting your property. Question: Is it reasonable for the owner of the watch to immobilize the thief by shooting him in the leg so that he cannot run? Answer: Yes. Let us change the story. Your watch was taken from your wrist; the thief was able to run away. Since you cannot overtake him and in order to prevent the thief from running away with your watch, you shoot him in the body and killed him.

Question: Can he invoke paragraph 5 that he acted “in the exercise of his right”? Answer: No, because while under paragraph 5, in relation to Article 429 of the Civil Code, the owner or possessor of a property has the right to exclude any person from enjoyment or disposal of his property, the law requires that in doing so, he may use such reasonable force to prevent or repel an actual or threatened unlawful physical invasion or usurpation of his property. It was not reasonable for the owner of the watch to kill the thief to recover the watch. That is based on the principle that no one is justified to take life simply because of property.

In the exercise of office Question: What is the example? Answer: Executioner of the National Bilibid Prison.

Question: Suppose you are the official executioner. You are the one assigned to condemn the convict to death by electrocution or lethal injection. The convict died. So, now you are sued. What is you defense? Answer: That you acted in the lawful exercise of an office. You are an executioner. That is your job.

But, take note paragraph 5 says “in lawful exercise xxx office”. So, the exercise of an office must be proper. For example, the execution is at 3:00 pm. Do not execute him at any other time, say 12:00 noon. That is improper because the President might grant him pardon or commutation of the sentence. But if you execute him on time, and you are charged with homicide, you can invoke paragraph 5 as a defense.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Another example: As a surgeon, you have to amputate the leg of a patient because of gangrene. You have to save his life by amputating his leg and after that the patient sued for the crime with Mutilation of second type, which is punishable by the RPC.

Question: What is the surgeon’s defense? Answer: That he was in the lawful exercise of his office.

6. 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; and 3. That the means used by the subordinate to carry out said order is lawful. The best examples are people in the military or police. They are normally following orders. The Supreme Court said that the order must be lawful or at least prima facie lawful, and the means to carry out the order must be lawful. If you are a subordinate, you were just ordered by a superior, you followed the order it turned out to be illegal. Now, you are being sued. Your defense is that you are just following the order of a superior officer. That is not a valid defense. The condition is that the order must be lawful. Question: So, going back to the whole Article 11, what is the basis for not being criminally liable? Answer: That the act is justified. The act is in accordance with law. If that is so, the accused does not incur criminal liability and obviously, it follows that is the act is in accordance with law, he is not also incur any criminal or civil liability, except in paragraph 4 (state of necessity) where there is civil liability.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Exempting Circumstances Question: What is the essence of an exempting circumstance? Answer: An exempting circumstance is a circumstance which, if present in the commission of a crime, makes the offender exempt from criminal liability. He is not criminally liable for the crime committed because when he committed the felony, he acted without intelligence, or without freedom, or without intent or negligence. And therefore, since there is the absence of any of these, the felony was not committed with voluntariness.

Art. 12. Circumstances which exempt from criminal liability. — The following are exempt from criminal liability: 1. An imbecile or an insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court.

This is known as the exempting circumstance of IMBECILITY or INSANITY. Question: What is the basis of paragraph 1? Answer: Complete absence of intelligence.

Question: What is imbecility? Answer: It is a condition of the mind where the offender might be advance in age but the mental development is comparable to that of a child between two and seven years of age. Insanity lays down a condition: unless the insane person has acted during a lucid interval. This qualification applies only to insane people, not imbecile. When you are an imbecile, there is no such thing as lucid interval. You are an imbecile all your life, through and through. You cannot be a retarded person now, then tomorrow you are normal. Whereas, there are types of insanity where there is some period of time when he is normal ad if the insane person commits a crime at the time he is normal he is liable.

Question: What is the presumption? Answer: The presumption is he is insane. But it can be rebutted by evidence that he acted during a lucid interval.

Question: What is the definition of insanity?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: It has a medical definition, but the legal concept of insanity is the inability to distinguish what is right from what is wrong. People vs Dungo 199 SCRA 660 Under foreign jurisdictions, there are three major criteria in determining the existence of insanity: 1.

Delusion Test – insane delusion is manifested by a false belief for which there is a number of reasonable basis and which would be incredible under the given circumstances to the same person if he is of compos mentis (of sound mind). An insane person believes in a state of things, the existence of which no rational person would believe.

2.

Irresistible Impulse Test – A person acts under an irresistible impulse when by reason of duress or mental disease, he has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at the time destroyed. In other words, he can distinguish between right and wrong, but he has lost the power to choose. He cannot resist the urge to commit a crime because he has no power to choose, although he recognizes the different between right and wrong.

3.

Right and Wrong Test – A person is insane when he suffers from such perverted condition of the mental and moral faculties as to render him incapable of distinguishing between right and wrong. In the Philippines, there is no definite criterion for insanity. But the Supreme Court adopted a definition from the Revised Administrative Code, Section 1039, which states that insanity is a manifestation in language or conduct, of disease or defect of the brain or a more or less permanently diseased or dishonored condition of the mentality, functional or organic, and characterized by perversion, inhibition, or dishonored function of the sensory or of the intellective faculties, or by impaired or dishonored violation. Insanity, as defined above, is evidenced by a deranged and perverted condition of the mental faculties, which is manifested in language or conduct. An insane person has no full and clear understanding of the nature and consequences of his act.

People vs Mancao 49 PHIL 887 Facts: This is a case involving an epileptic. During the influence of an epileptic fit, he attacked the victim. He committed a crime. He pleaded insanity as a defense. Issue: WON he is liable or not. Held: Epilepsy is not insanity from medical point of view. But from the point of view of the law, that is precisely the concept of insanity. He cannot distinguish what is right from wrong, because the condition of the mind is not the same.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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It is important to note, however, that the epileptic, to be exempt form liability, must have committed the crime at the very moment that he was under the influence of an epileptic fit. Otherwise, even is he is an epileptic; he is not exempt from liability if he did not commit the crime during an epileptic attack. People vs Tanco 58 PHIL 255 Facts: A somnambulist or sleepwalker, while sleeping, got up. Got a bolo and upon meeting is wife tried to stop him, wounded her and also attack other persons. Held: He is not criminally liable, it appearing that the act was committed while in a dream. He is covered by the term “insanity” because at the time he committed the crime, he lack intelligence. Under the law, even if you are medically insane, if you commit a crime during lucid interval, you are liable. There are types of insanity where the doctor will say that he is insane for a certain time and for another time, he is normal. The lucid interval is the period of sanity. There are also types of insanity where there are no lucid interval. If they are in their lucid interval, they are liable because during that period they are sane and therefore they can distinguish what is right from what is wrong. There are persons who are not normal during full moon – lunatics. At the last quarter, they become normal. The mind is affected by the movements of the moon, like the waves, high tide if full moon. There must be scientific explanation in that. How come some persons during those periods manifest some kind of lunacy?

2. A person under nine years of age. Note: See R.A. 9344 on the latter part of this transcription

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 Art. 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformably with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education otherwise, he shall be committed to the care of some institution or person mentioned in said Art. 80. (note: obsolete) Paragraph 2 and 3 are identical. This is called the exempting circumstance of MINORITY. -paragraph 2 - a person under nine years of age; -paragraph 3 – a person over nine years of age and under fifteen

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: When a minor is exactly nine years old. Where will he fit-the 2nd or 3rd paragraph? Answer: The Supreme Court said he falls under paragraph 2, because, as interpreted by the SC, “under nine” means nine years old or below. Otherwise, there will be a vacuum. So, if he is exactly 9, he is under the 2nd paragraph. Suppose, the child is a wonder boy, whose mental development is advanced and so can distinguish between a minor who is mentally advance and one who is not. Insofar as the 2 nd paragraph is concerned, there is a conclusive presumption of law that when a minor is nine or below, he has no intelligence. He cannot distinguish right from wrong. That is conclusive and cannot be overcome.

But the prosecution would insist that it has proven that the boy knows what is right and what is wrong. At the age of eight, he already wrote a book on ethics, or he is a chess grandmaster. Question: Is that allowed? Answer: NO, the exemption is binding. If the child is 9 or below, he is exempt. That is conclusive and cannot be changed anymore—complete exemption.

Question: Suppose the minor is over 9 up to exactly 15, is he exempt? Answer: This time it is conditional. The minor is exempt unless he acted with discernment.

Question: What does “acting with discernment” mean? Answer: Discernment means the mental capacity of the minor to distinguish what is right from what is wrong. So, if the minor did not act with discernment, he is exempt. If he acts with discernment, he is liable, not exempt.

Question: Who will prove that? Answer: The rule is that it is for the prosecution to prove that he acted with discernment because the presumption is he did not act with discernment, therefore he is exempt. But the presumption can be overcome by proof of discernment.

GUEVARRA vs. ALMODOVAR 196 SCRA 476 Facts: Guevarra was an 11-year old kid who was playing a rifle with a playmate. Accidentally, the rifle was discharged and exploded fatally hitting the playmate. Of course, he did not really intend to kill his playmate. There was no dolo there. He was charged with reckless imprudence resulting to homicide. He contended that he should be exempt because, as a minor, he did not act with discernment. It was for the prosecution to allege that he acted with discernment in order to hold him liable. When the prosecutor charged him with reckless imprudence resulting to homicide, that is an automatic admission by the prosecution that there was no criminal intent on his part. And therefore, since the prosecution admits there was no criminal intent, then that is an admission that he acted without discernment because if there is no criminal intent, automatically there is no discernment. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Issue: Is the term “discernment” synonymous with “intent”? (Such that if there is no intent, there is no discernment) Held: The word “intent” has been defined as a determination to do a certain thing, an aim, the purpose of the mind including such knowledge as is essential to such intent; or the design, resolve with which a person acts. It is this intent which comprises the third element of dolo as a means of committing a felony, freedom, and intelligence being the other two. On the other hand, “discernment” conveys thoughts. While both are products of the mental processes within a person, the former (intent) refers to the desired effect of one’s act; while the latter (discernment) relates to the moral significance that a person 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 an air rifle. It is not correct, therefore, to argue as accused-petitioner Guevarra does, that since a minor over 9 but under 15 acted with discernment, then he intended such act to be done. He may negligently shoot his friend, thus did not intend to shoot him, and at the same time recognize the undesirable result of his negligence. Intelligence embraces the concept of discernment. Discernment is not equivalent to intent. Intelligence which includes discernment is a distinct element of dolo as a means of committing an offense. Therefore, discernment is part of intelligence. And there are three things there to make the act voluntary— freedom, intelligence and intent. Intent is in the mind, intelligence is in the mind, and discernment is embraced in intelligence. In felonies committed by means of culpa, three elements are indispensable- intelligence, freedom of action and negligence. Intent is wanting in such felonies. However, intelligence remains as an essential element. Therefore, it is necessary that the minor between 9 to15 be possessed with intelligence in committing a negligent act. To be liable, he must discern the rightness or wrongness of the act. (ART. 80 is repealed by PD 603) Meaning, I did not shoot you intentionally, but I’m aware that what happened is wrong. That is what is meant by discernment-you know what is wrong. But you did not intend it to happen.

4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it.

5. Any person who act under the compulsion of irresistible force.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Elements: (i) that the compulsion is by means of physical force; (ii) that the physical force must be irresistible; (iii) that the physical force must come from a third person.

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

Elements (i) that the threat which cause the fear is of an evil greater than, or at least equal to that which he is required to commit; (ii) that it promises an evil of such gravity and imminence than the ordinary man would have succumbed to it.

The basis of paragraph 5 and 6 is the absence of freedom of action. There is intelligence, there is intent, but there is no freedom. You were literally compelled against your will to commit the felony. Actus invito factus non est meus actus. An act done against my will is not my act.

Question: Distinguish irresistible force from uncontrollable fear? Answer: The difference is that in irresistible force, the offender was compelled to commit a crime through the use of physical force, like torture. He was tortured until he had no more choice but to commit the crime. In uncontrollable fear, the manner by which he was compelled to commit a crime was not through force, but through threat or intimidation. The second is more common than the first.

When you allege that there is an irresistible inner force which makes me commit a crime. I was possessed by a demon. That is NOT covered. It may be insanity, but definitely you cannot invoke irresistible force there.

US vs. CABALLEROS 4 PHIL 350 Facts: This is a case where some American school teachers were murdered by a band. Accused Baculi was then in a plantation gathering bananas. Upon hearing the shooting, the poor farmer ran towards the scene of the crime. However, he was seen by the leader of the band. They struck him with the barrel of their rifles and compelled him to bury the corpses. He was caught by the authorities and was charged as accessory in the murder of the Americans for concealing the body of the crime.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Held: Baculi was not criminally liable as accessory for concealing the body of the crime of murder committed by the band because he acted under the compulsion of an irresistible force. The second one (uncontrollable fear) is more common. The offender is compelled to commit a crime against his will by means of threats. In order to avail of this, there must be a demonstration that: (i) There is no possibility of defending yourself from the threat. Meaning if you threaten me with a gun, I have no obligation to fight back just to avoid committing the crime. (ii) There is no possibility of escaping from the threat. If there is a chance of escaping so that you will commit the crime, then you are not covered. (iii) The threat must be of equal or greater injury. It must be clear, concrete, not speculative.

PEOPLE vs. MORENO 77 SCRA 549 FACTS: Accused Moreno was charged with murder for killing fellow Filipinos upon order of Major Sasaki of Japanese Imperial Army. Moreno claimed that he could not refuse to comply with that order because the Japanese officer made a threat. The testimony of Major Sasaki showed that the threat was not really serious. It was to the effect that if Moreno will not comply, the Japanese soldiers will take him along with them. Held: A speculative, fanciful and remote fear is not “uncontrollable fear”. If the only evidence relating to a sort of threat is the testimony of the defendant. As they insisted and 1 informed them that I could not do it, Capt. Susuki told me “You have to comply with that order of Major Sasaki; otherwise you have to come along with us”, that threat is not of such a serious character and imminence as to create in the mind of the defendant an uncontrollable fear than an equal or greater injury would be inflicted upon him if he did not comply with the alleged order to kill the deceased.

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

ELEMENTS: (i) (ii) (iii)

that an act is required by law to be done; that a person fails to perform such act, that his failure to perform such act was due to some lawful or insuperable cause.

This exempting circumstance applies exclusively to people who are charged with felony by omission. Here, the offender is not prosecuted for doing an act, but for failing to do an act. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What is your defense when you failed to do an act as required by law? Answer: I was prevented by a lawful cause or an insuperable cause. That is the defense.

Example: The accused is a Filipino citizen who is a priest. Somebody in the confessional confessed to him as being a co-conspirator in the crime of treason. So, the priest learned about it. If he does not report the matter to the authorities, he violates the law, as criminally liable for misprision of treason under Article 116 of the RPC. If he reports the matter to comply with the Penal Code, he violates the seal of confession. Then later, the conspirator was arrested, investigated and he admitted that the person to know about it was the priest. So, the priest is now charged with Misprision of Treason. Question: What is the defense of the priest? Answer: He was prevented by a lawful cause (secrecy of confession) from revealing the matter. Question: What do you mean by prevented by an insuperable cause? Answer: A cause beyond the control of the peace officer.

Example is an officer who is prosecuted under Article 125 for the crime of Delay in the Delivery of Detained Persons to Proper Judicial Authorities. Example: The accused is a Filipino citizen who is a priest. Somebody in the confessional confessed to him as being a co-conspirator in the crime of treason. So, the priest learned about it. If he does not report the matter to the authorities, he violates the law, as criminally liable for misprision of treason under Article 116 of the RPC. If he reports the matter to comply with the Penal Code, he violates the seal of confession. Then later, the conspirator was arrested, investigated and he admitted that the person to know about it was the priest. So, the priest is now charged with Misprision of Treason. Question: What is the defense of the priest? Answer: He was prevented by a lawful cause (secrecy of confession) from revealing the matter.

Question: What do you mean by prevented by an insuperable cause? Answer: A cause beyond the control of the peace officer.

Example is an officer who is prosecuted under Article 125 for the crime of Delay in the Delivery of Detained Persons to Proper Judicial Authorities. In case of lawful warrantless arrests, a peace officer or a private person may arrest another even without a warrant and detain him. But there is a limit as to maximum number of hours within which the detaining officer is allowed to detain the person arrested. If the arresting officer wants to detain him further, he’d better file the necessary criminal information in court. If the person arrested is detained beyond that period without being lawfully charged in court, the detaining officer is liable.

ARTICLE 125, RPC. Delay in the delivery of detained persons to the proper judicial authorities – The penalties provided in the next preceding article shall be imposed upon the public officer or employee ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of:  twelve (12) hours for crimes or offenses punishable by light penalties, or their equivalent;  eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent: and  Thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon request, to communicate and confer at any time with his attorney or counsel.

Suppose a policeman caught somebody without warrant because he was actually committing murder or homicide in the hinterlands – a certain very far away barangay. He was to bring him to town and to formally charge him in court. But it takes 3 to 4 days to reach the town proper from the said barangay. So, how can he comply with his duty within 36 hours (because murder or homicide is a grave felony) to charge the person arrested. He should keep him within 36 hours only, otherwise he should be liable. So, necessarily, he detained him for more than 36 hours. By the time he reached the town, it is more than 36 hours. So, the policeman is charged of Delay in the delivery of detained person.

Question: What is his defense? Answer: He was prevented from doing the act because of the cause beyond his control – insuperable cause. How can he do something within 36 hours when it will take him more than 36 hours to reach the town?

Question: What is the effect of exempting circumstance in general? Answer: When there is an exempting circumstance, the offender is not liable. He is exempt from criminal liability.

Question: How about civil liability? Answer: He is civilly liable because the exemption from criminal liability does not include exemption from civil liability in the cases provided in paragraph 1, 2, 3, 5 and 6 of Article 12. So, he is not criminally liable, except in paragraph 4 (accident) and paragraph 7 (lawful or insuperable cause). In these two instances, not only is there an exemption from criminal liability, but also exemption from civil liability.

Question: Enumerate at least ten exempting circumstances. Answer: Seven are in Article 12. Others are: 1. Article 6 – when a person did not perform all acts of execution which would produce the felony because of his own voluntary desistance. One who voluntarily desists from committing a crime is exempt from any criminal liability because of public policy.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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2.

Article 7 – light felonies are punishable only when they are consummated, except those committed against persons or property. So, the rule is: attempted or frustrated light felonies are not punishable if they are not committed against persons or property. This is an exemption from liability for reason of public policy. But if the light felony is committed against persons or property, they are punishable even if attempted or frustrated.

3.

Article 16 – where accessories are not liable for light felonies.

4.

Article 20 – where the accessory who is related to the principal is exempt from criminal liability

5.

Instigation

Question: Distinguish instigation from entrapment. Answer: In instigation, a public officer or a private detective induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter. It is an absolute cause. And jurisprudence says the person instigated who commits a felony is exempt from a criminal liability. The reason is public policy. Peace officer should be the last person in the world to induce people to commit crimes. It’s not a sound practice to allow public officers who should be the one apprehending the criminals to be the very person who will induce somebody to commit a crime.

In entrapment, a person has planned, or is about to commit, a crime, and ways and means are resorted to by a public officer to trap and catch the criminal. Entrapment is not a defense. In entrapment, the person has decided to commit a crime and the police officer went along with him, pretending to be agreeing to its commission. Then when the criminal is in the act of committing the crime, the peace officer who pretended to do along with him will now be instrumental in arresting him. Now, that is not a defense when you entrapped. It is not an exempting circumstance. For example, a buy-bust operation against drug pusher. A peace officer will pretend to be a user or drug addict and he will buy from the pusher. Upon giving the signal to his companions, the pusher is arrested. That is entrapment.

Take note that in entrapment, the idea of crime did not come from the policeman but from the person arrested. The policeman only resorted to ways and means to catch the criminal in the act of selling prohibited drugs. But in instigation, the idea of committing a crime came from the policeman himself. It was he who induces an innocent person to commit a crime.

Question: Suspecting that Juan was a drug pusher, SPO2 Mercado, leader of a NARCOM Team, gave Juan a P100-bill and asked him to buy some marijuana cigarettes. Desirous of pleasing SPO2 Mercado, Juan went inside a shopping mall, while the officer waited in one corner of the mall. After 15 minutes, Juan returned with 10 sticks of marijuana cigarettes which he gave to SPO2 Mercado, who thereupon placed Juan under arrest and charged him with violation of the Dangerous Drugs Act for selling marijuana cigarettes. Is Juan guilty of any offense punishable under the Dangerous Drugs Act? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: There is instigation here. This is not an entrapment. Juan was not a pusher. In fact, it was SPO2 Mercado who asked Juan to buy marijuana cigarettes for him. It was only because Juan wanted to please Mercado that the latter bought the said marijuana cigarettes. Therefore, Juan is not guilty of any violation of the Dangerous Drugs Act.

The exempting circumstances under Article 12 are based in the philosophy that there was lack of voluntariness because of the absence of freedom, intelligence or intent. The other exempting circumstances, which are not found under Article 12, exempt the offender from criminal liability not because there was no voluntariness but because of public policy.

Question: Distinguish justifying from exempting circumstances. JUSTIFYING CIRCUMSTANCE The act committed by a person is justified; it is in accordance with the law. No crime is committed by the accused. There is no civil liability, except in paragraph 4 (state of necessity).

EXEMPTING CIRCUMSTANCE The offender committed a crime, but when he committed it, there was no voluntariness on his part because he acted without freedom, intelligence or intent. There is civil liability, except in paragraph 4 (accident) and paragraph 7 (lawful or insuperable cause).

Memory Aid (from the notes of Atty. Teodoro V. Angel) The following are exempt from criminal liability: I U D

Acc For Fear Fail

1. An Imbecile or an insane person, unless the latter has acted during a lucid interval. xxx 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 Art. 80 of this Code. xxx 4. Any person who, while performing a lawful act with due care, causes an injury by mere Accident without fault or intention of causing it. 5. Any person who act under the compulsion of irresistible Force. 6. Any person who acts under the impulse of an uncontrollable Fear of an equal or greater injury. 7. Any person who Fails to perform an act required by law, when prevented by some lawful insuperable cause.

(Recall IUDAccForFearFail)

Elements of Accident (Paragraph 4) A

1) Accused performing a lawful Act.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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2) With due Care. 3) Causes Injury to another by mere accident. 4) No fault or intention

(Recall ACIN)

Elements of Irresistible Force (Paragraph 5) P I T

1) Compulsion by means of Physical force. 2) Physical force is Irresistible. 3) Physical force from Third person/outsider.

(Recall PIT) Elements of Uncontrollable Fear Gr Im

1) Threat causes fear of equal or Greater evil than that required to commit it. 2) Evil so Imminent and grave that ordinary man would succumb to it.

(Recall GrIm)

Fail due to lawful / insuperable cause: Fa Re In

1) Accused Fails to perform an act. 2) Act Required by law to be done. 3) Failure due to lawful or Insuperable cause.

(Recall FaReIn)

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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MITIGATING CIRCUMSTANCES Question: Define mitigating circumstances in general. Answer: In general, mitigating circumstances refers to those circumstances which, if present in the commission of a felony, makes the offender liable but it would reduce or mitigate the imposable penalty because when he committed the felony, he committed it with reduction or diminution of freedom, intent or intelligence.

Therefore, there was less degree of voluntariness in committing the crime. Or because the offender has shown in the commission of the crime or afterwards a lesser degree of moral depravity or perversity.

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.

This refers to INCOMPLETE JUSTIFYING or INCOMPLETE EXEMPTING circumstance. For example – incomplete self-defense, incomplete defense of relative, incomplete state of necessity, incomplete accident, incomplete irresistible force, incomplete uncontrollable fear. Suppose I am the accused, I prove that I am a victim of unlawful aggression, that’s why I had to kill the victim. But I did not use reasonable means to defend myself. So, unlawful aggression is present but the other two requisites of self-defense are not present. That is no longer self-defense, but that constitutes mitigating circumstance under paragraph 1 of Article 13. The same thing with paragraph 4 of Article 11 (state of necessity), paragraph 6 of Article 12 (uncontrollable fear). Those circumstances that have requisites, but not all are present. But there are circumstances where you cannot apply paragraph 1 of Article 13, like imbecility. That is exempting but there is no such thing as incomplete imbecility.

(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. (Note: Article 80 is amended by sec 192, PD 603)

This is also known as mitigating circumstance of MINORITY and SENILITY because the offender is below 18 or over 70 years old. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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You will note that the age of a person plays a big role in determining his mental liability, or the proper imposable penalty under the Penal Code.

AGE 9 years & below Over 9 under 15

16 to 17 years old 18 to 70 years old Over 70 years old

DESCRIPTION Age of complete irresponsibility Age of conditional criminal responsibility

Age of mitigated responsibility Age of complete responsibility Age of mitigated responsibility

EFFECTS Exempting (Article 12(2)

criminal

- Exempting, if the minor acted without discernment-Art.12 (3) -Mitigating, if he acted with discernment Mitigating (Article 13(2)

criminal

None

criminal

Mitigating (Article 13(2) * Basis: impaired intelligence

Question: Is a baptismal certificate admissible in evidence to prove minority of an accused? Answer: If we go by the Rules of Evidence, a baptismal certificate is not competent to prove a person’s age because it is not recognized as an official document. It does not prove your name, status, age. What is competent is the official birth certificate.

PEOPLE vs. REGALARIO 220 SCRA 368 Minority, as a mitigating circumstance, is presumed in case of doubt. A baptismal certificate or other evidence of this character may be admitted to show minority. That ruling, about legal interpretation of minority, should not be confused with insanity which must be proven by clearly and convincingly. For example, I want to prove that the accused is a minor through his own testimony. COUNSEL: When were you born? ACCUSED: I was born on June 2, 1990 (this is theoretically hearsay) COUNSEL: How did you know that you were born on that date? ACCUSED: My mother told me. (This is an exception to the hearsay rule…because of family reputation or tradition) COUNSEL: Ah, that is self-serving. Maybe you just made that so that you can prove that you are below 18 years old.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Is there a need for corroborative evidence? (i.e. aside from the accused’s testimony, you will present his birth certificate or the testimony of his father or mother or anybody older than the accused). To establish the mitigating circumstance of minority, will the testimony of the accused be sufficient, or must he present corroborative evidence to prove his age considering the fact that his statement might be considered as self-serving on his part? Answer: In the case of People vs. Lugto (190 SCRA 754), the Supreme Court said that the accused has the burden of proof to show that he was a minor at the time of the commission of the crime. So, if you have the burden of proof, your testimony alone does not seem sufficient. You have to present corroborative evidence to make it convincing. However, the Supreme Court re-examined the Lugto ruling:

PEOPLE vs. TISMO 204 SCRA 535 The appellant’s claim that he was 17 years old at the time the crime was committed, even without any proof to corroborate his testimony, is sufficient. Considering that the prosecution failed to present contradictory evidence, we have applied to appellant therein the privilege mitigating circumstance of minority under the second paragraph of Article 13 of the Revised Penal Code. The Lugto ruling appears to be an aberration from the long line of decisions antedating it. From US vs. Bergantino (3 Phil 118) to People vs. Ebora (141 SCRA 282), we have consistently ruled that, although the accused did not offer any evidence to support his claim of minority, this fact will remain as such, until disproved by the prosecution. In other words, the answer to the question of whether or not the accused’s lone testimony as to his minority would be sufficient is YES. It can be done. That is where we apply the rule on liberality. Anyway, the prosecution will present its own evidence, and it is there that we will know if the accused is telling the truth. But if his testimony is unchallenged, then it would suffice.

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

Obviously, this only applies to intentional felonies. This will not apply to culpable felonies. This is related to Article 4 (1) on praeter intentionem. PROBLEM: A, with the intent of inflicting physical injuries on B, hit B with his fist. The latter fell down and his head hit a concrete pavement, thereby fracturing his skull. And he subsequently dies. Question: Is A liable for the crime of slight physical injuries which he intended, or is he liable for homicide that resulted? Answer: He is liable for homicide, the crime that resulted, applying Article 4 (1), that one is liable for the felony actually committed although it is different from the one which he intended.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Is A entitled to any circumstance in his favor, assuming that he is liable for the crime that resulted? Answer: YES, he is entitled to the mitigating circumstance under Article 13 (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.

There are actually two circumstances here: (1) That sufficient provocation on the part of the offended party immediately preceded the act. (2) That sufficient threat on the part of the offended party immediately preceded the act.

Sufficient Provocation It seems to be closely linked to the 3 rd element oh self-defense – lack of sufficient provocation on the part of the person defending himself. So, we will connect this with self-defense. The best illustration is the case of Alconga. The deceased attacked Alconga with a piece of wood. Alconga defended himself by shooting the deceased. When the deceased realized he was slightly wounded, he turned his back and ran away. Alconga chased him, overtook him and killed him on the spot. Question: Is Alconga entitled to the justifying circumstance of self-defense for the death of the victim? Answer: NO, because there was no unlawful aggression. While it is true that there was unlawful aggression on the part of the victim earlier, it has already ceased when the victim ran away. There is no more danger to the life and limb of Alconga, and therefore, there was no more reason for him to defend himself. As a matter of fact, in the second stage of the fight, Alconga became the unlawful aggressor.

Question: If Alconga is liable for homicide for the killing of the victim, is he entitled to any circumstance in his favor? Answer: YES, he is entitled to the mitigating circumstance under Article 13 (4) that sufficient provocation on the part of the offended party immediately preceded the act. Question: Can Alconga not claim the benefit of incomplete self-defense under Article 13 (1)? Answer: NO, because there is lacking the requisites. Where there is no unlawful aggression, nothing exists. Therefore, there is no self-defense, complete or incomplete.

Question: Suppose, when Alconga was chasing the victim, the victim was forced to fight back and in the process he killed Alconga, can he claim self-defense under Article 11 (1)? Answer: NO, because of the absence of the third element – lack of sufficient provocation on the part of the person defending himself. The reason why Alconga attacked is because earlier he attacked Alconga. So, he gave sufficient provocation. Because of the absence of the third element, he is not entitled to complete selfdefense. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Can Alconga’s victim claim any circumstance in his favor? Answer: YES, he can claim the mitigating circumstance of incomplete self-defense because there was unlawful aggression, the means he used to defend himself was reasonable, but he gave sufficient provocation. Sufficient Threat A threat also amount to provocation because when you are threatening somebody, you are provoking him. Like for example, Answer: You watch out! One of these days, I am going to kill you. B: You are threatening me? It would be good if I kill you first! So, B killed A. That is the mitigating because the offended party (A) gave sufficient threat preceding the act. PROBLEM: A wanted to kill B. A drew his gun and told B, I’ll kill you now! When B realized that A is going to kill him, B drew out his gun ahead and killed A. So, B is accused of homicide for the death of A. B went to a lawyer, who advised him to invoke the mitigating circumstance under Article 13 (4). Question: Is the lawyer correct? Answer: NO, he should invoke self-defense, not the mitigating circumstance of sufficient provocation or threat. The rule is when the threatened act is about to happen, that is equivalent to actual aggression. That is justifying because the threat is imminent, at the point of happening and therefore, that constitutes unlawful aggression. But if the threat is still in the future, and not at the point of happening, then it is not equivalent to unlawful aggression. That may constitute the mitigating circumstance under Article 13 (4). So, that is the connection between the threat here and the threatened assault in Article 11 (1).

(5) That the act was committed in 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 degree.

The essence of this circumstance is REVENGE. Somebody commits a wrong, a grave offense to you or a member of your family, a relative, and you seek revenge. Like for example, somebody kills your brother, so you look for the killer to kill him. Now, that revenge can never be justified under the law. It does not exempt you from liability if you kill somebody because he killed a member of your family. That can never be justified. “Revenge is mine”, says the law. However, the law understands the feeling of the accused. He did it because a grave offense was committed against him, or a member of his family. So, the law recognizes the “diminution” of one’s penalty if he acts in retaliation. The relatives mentioned in this paragraph 5 are identical with the relatives mentioned in Article 11 (2) – defense of relatives. All of them are the same except one, relatives by affinity within the fourth civil degree. They are not mentioned in this Article. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What do you mean by “grave offense”? Does this mean to say you are a victim of a grave felony, as defined in Article 9? Answer: NO, the word “grave” here is not identical with the technical definition of grave felony. What it means is somebody offended you seriously. If it is serious, it is not necessarily a grave felony.

Question: And how do you determine if the wrong committed upon you or your relative is serious? Answer: It depends on many factors. You consider the nature of the act committed by the victim, the age of the offender, the social standing. What is serious to one may not be serious to another.

US vs. AMPAR 37 PHIL 201 Facts: There was party during a fiesta where the accused who is an old man went to the victim who was serving lechon. Ampar asked for lechon. The victim played a joke on Ampar. In the presence of many guests, the deceased insulted the old man, saying: “There is no more. Come here and I will make roast pig out of you”. It was a joke, and all the guests laughed. But the deceased made a mistake. Maybe the joke would not have bothered if it was a young man, but to the old man, it was something else. So, the old man left, got an ax. A little later, while the deceased was squatting down, the old man came up behind him and struck him on the head with the ax. Held: He acted in vindication of a grave offense committed against him. It was just a joke, but considering his age and the occasion, it was something serious. You should not play jokes on or ridicule in the presence of others.

Take note that the law says that you x x x committed the act in the immediate vindication x x x you committed the act in immediate vindication. Just like in the previous mitigating circumstance, that sufficient provocation or threat on the part of the offended party immediately preceded the act. However, there is a difference between the word “immediate” in paragraph 4 and the word “immediate” in paragraph 5. In the previous mitigating circumstance, sufficient provocation or threat on the part of the offended party immediately preceded the act. In paragraph 4, the interpretation of the word “immediate” there is literal. There must be no gap between the threat or provocation and the crime. You commit a crime immediately after the provocation or threat. In paragraph 5, the use of the word “immediate” is not really literal.

Question: For example, a man is killed and after the funeral of the deceased, the son looks for the killer and kills him. And he finds the killer after one month. So, he kills the killer for killing his own father. Would you say that the killing was “immediate” after the grave offense was committed against the father? Answer: It is not. It is not immediate. There was a gap of one month. But there is a relation of cause and effect between the crime committed by the killer and the crime which the son now commits against the ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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killer. So, the word “immediate” there is misnomer because the word “immediate” is an incorrect translation of the original Spanish word proxima. The appropriate translation would be “proximate”. That the act was committed in the PROXIMATE vindication of a grave offense. Question: What is the difference between “proximate” and “immediate”? Answer: In “proximate”, the act is not immediate in point of time of the grave offense, but what is also important is that there is still the relation of cause and effect between them.

(6) That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.

Question: What do you mean by “passion or obfuscation”? Answer: Where a person is overwhelmed by passion or his mind is obfuscated, he becomes “illusionado”, his action is more of a product of emotion rather than of a careful knowing. So, somehow, the freedom and intelligence are also impaired.

Sometimes, we experienced that. When you become very angry, sometimes you think or utter words which you will later regret. When you have cooled down, you realize that you should have not uttered such words. But why is that when you are angry or when you are not thinking, you do things which you actually do not mean? Why? Because your mind is obfuscated. That in the mind, the decision was prompted by emotion rather than by reason. That is why there is this nice saying: When you are angry, do not make any decision. When you are happy, do not make any promises. That is fair enough. There are some principles on this: (1) The passion or obfuscation must arise from lawful sentiments.

US vs. HICKS 14 PHIL 217 Facts: A married man was maintaining an illicit relationship with a woman, a concubine. After a while, the concubine told him. I think I have to stop this relationship. I have no future with you. In the first place, you are married. I want to have my own life. Of course, the man became emotional and killed the woman because he could not bear the thought of this woman separating from him, when they have been together for 7 years. In his defense, he pleaded the circumstance of passion and obfuscation, that he was obfuscated when the girl said that she wanted to part ways with him. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Held: Defense untenable. It was a passion which arose an ILLICIT relationship.

PEOPLE vs. CALISO 58 PHIL 283 Facts: Here, the yaya killed the child because she was angry, because the parents of the child scolded her earlier. Because of the scolding, she became emotional. She got so emotional that she killed the baby. Held: We cannot accept the fact under passion or obfuscation because that was a passion or obfuscation generated by the spirit of revenge. So, it was not a valid emotion.

PEOPLE vs. SANICO Facts: A man was accused of rape. His explanation was: I was in a very scenic spot. There were no people around. Then, I saw the victim. She was alone, bathing in the river. So, my initial instinct was that I was around, I had to rape her. I acted with passion. Held: That is not the kind of passion contemplated by law. That is libido.

Question: Now, suppose a person became of an act – a terrible act committed by the victim against him, retaliated by killing the victim. So, he says I killed him because of sufficient provocation or threat on the part of the offended party immediately preceding the act, so I am entitled to the mitigating circumstance #5 because I committed the act in the immediate vindication of a grave offense committed against me, and also I am entitled to #6 because I acted on an impulse so powerful as would naturally produce passion. So, I am entitled to three mitigating circumstances. Is that correct? Answer: No, he is entitled to only one because numbers 4, 5 and 6 have the same source. They have a common denominator – that the mind is actually overwhelmed by anger or emotion. So, he cannot claim three mitigating circumstances. Assuming that all of them will apply, the application of one is sufficient. You cannot claim three separate mitigating circumstances.

7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution;

These (voluntary surrender and voluntary confession) are the most common mitigating circumstances invoked in court. If the two are present, definitely the accused is entitled to two mitigating circumstances.

Voluntary Surrender ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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After the killing, the accused went to the police and gave up. The reason behind this is that he has shown a lesser degree of perversity that he is willing to answer for the crime he committed. He is better that the one who has remained at large. Question: To whom shall the accused surrender? Answer: The accused should surrender to the right person, to a person in authority or his agent. Question: Who is a person in authority or his agent? Answer: The guide is in Book II ARTICLE 152, RPC. Person in authority and agents of person in authority – Who shall be deemed as such – In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board or commission, shall be deemed a person in authority. A barrio captain and barangay chairman shall also be deemed a person in authority. A 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 or security of life and property, such as barrio captain, barrio councilman, barrio policeman and barangay leader and any person who comes to the aid of persons in authority, shall be deemed an agent of a person in authority. In applying the provisions of Article 148 and 151 of this Code, teachers, professors and persons charged with the supervision of public or duty recognized private schools, colleges and universities, shall be deemed persons in authority. So, if you surrender to a clerk of the City Hall, you will not fall under this because an ordinary clerk of the government is not a person in authority. He is not also an agent of a person in authority. He must fit the definition in Article 152. Also, you must surrender yourself. Like in one case, the accused killed somebody. And then, he sent his weapon to the police, the murder weapon. Is that necessary? The Supreme Court said that is not surrender, because you should surrender your body, not the weapon.

Question: When should you surrender? Answer: One thing that the Supreme Court has emphasized is that the surrender must be SPONTANEOUS.

PEOPLE vs. LEE 204 SCRA 900 Issue: Is there a voluntary surrender if an accused gives himself up to ensure his safety? Meaning, his life may be in danger. There might some people who wanted him dead, so he decided to surrender. Held: For a surrender to be voluntary, it must be spontaneous, and should show the intent of the accused to submit himself unconditionally to the authorities, either: ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Because he acknowledges his guilt, or Because he wishes to save them (police and government) the trouble expenses to be necessity incurred for his search and capture.

In the absence of these two reasons, and in the event the only reason where the accused is supposed to surrender is to ensure his safety – his arrest being inevitable, the surrender is NOT spontaneous, and hence not voluntary.

This is similar to an old case where a wanted criminal was tracked down by the authorities. They found hid hideout, and then they surrounded his hideout early one morning. They shouted, “Come out peacefully because there is no way for you to escape. You are surrounded!” The criminal looked at all the directions, and found out that they were all sealed. So, knowing that there is no more escape, he came out. Now, he is asking for the mitigating circumstance of voluntary surrender. That cannot be. He did not surrender; he was caught. In other words, that was not really surrender in the sense that the criminal gave up spontaneously. He had no choice.

PEOPLE vs. PAGSANJAN 221 SCRA 735 Issue: Is there mitigating circumstance if it took 2 years and 5 months after the issuance of the warrant of arrest against the accused before he surrendered? Held: The mitigating circumstance of voluntary surrender cannot, as appellant pleads, be considered in his favor. He did not surrender voluntarily. It took 2 years and 5 months after the issuance of a warrant of arrest against him before he surrendered. Apparently, when he gave himself up, it was not to save the state from the time and effort needed to capture him. But because he had gotten tired of the life of a fugitive, or saw no other reasonable alternative to continue absence from his home.

PEOPLE vs. MORATO 224 SCRA 361 Issue: Is there voluntary surrender if the accused gave himself up after a shoot-to-kill order was issued against him and he was persuaded to surrender because of his employer? Held: The fact that the Provincial Commander had announced over the radio that he would issue a shootto-kill order unless the accused-appellant voluntarily surrendered, and that the accused-appellant was persuaded to surrender by his employer, do not militate against the consideration of his voluntary surrender as mitigating circumstance. The stone-cold fact remains that he was not arrested and that he presented to the Provincial Commander.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The ruling of Morato seems to go against the ruling of the Supreme Court in 1990 decision, which has the very same fact. A man committed a crime. He was convinced by his superior to surrender, so he surrendered to the NBI.

ESTACIO vs. SANDIGANBAYAN 183 SCRA 12 The mitigating circumstance of voluntary surrender may properly be appreciated in favor of the accused when the following requisites concur:   

The offender has not actually been arrested; The offender surrendered himself to a person in authority or an agent of person in authority; The surrender was voluntary.

The foregoing requisites are not present in the case at bar. The evidence of record shows us that the accused went to the NBI upon the instruction of his superior, not upon his own accord.

Voluntary Confession of Guilt This is manifested in Criminal Procedure by a plea of guilty entered by the accused during the arraignment. That is when you voluntarily confess your guilt to the court prior to the trial, prior to the presentation of evidence by the prosecution.

Question: Can I withdraw? Can a person who entered a plea of “not guilty” later on change his mind and withdraw that plea and change it to “guilty”? Is he still entitled to this mitigating circumstance? Answer: Yes, because what is important is that he has confessed his guilt before the prosecution has laid its evidence. In order to prevent speculation on the part of the accused: If the evidence is strong, I will surrender. If the evidence is weak, trial goes on!

In other words, you should not speculate. Even before seeing and knowing the evidence of the prosecution, you admit your guilt – that shows that you have less perversity. So, you can change your plea of “not guilty” to “guilty”. What is important is that you must confess your guilt prior to the presentation of the evidence for the prosecution.

Question: Can you change your plea of “not guilty” in the middle of the trial? Can that be done? Answer: Of course, you can change your mind and enter plea of “guilty” anytime, even before trial, during trial, and even before the trial ends. But if you do it much later, it will no longer be considered as a mitigating circumstance. That’s the difference.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(8) That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus restricts his means of action, defense, or communications with his fellow beings.

Any physical defect by the accused is automatically mitigating even if it does not have something to do with the crime. Like, you are deaf and dumb, or blind or you are cripple. The mere fact that the person is not physically normal, that is considered automatically as a mitigating circumstance in his favor because that is a diminution of his freedom – freedom of action.

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

This is the mitigating circumstance which should correlate with Article 12 (1) on insanity, because medically this will be a form of insanity. An illness of the offender which diminishes the exercise of the will-power of the offender. If you follow the guideline in the case of Dungo, some countries may recognize this as a type of insanity, by applying what is known as the irresistible impulse test. He cannot resist the impulse to commit a crime. Now, is that recognized in the Philippines? NO. As a matter of fact, another case where the Supreme Court thoroughly discussed this type of mental illness is in the 1991 case of People vs. Rafanan (204 SCRA 65). The discussion in the Rafanan case is related to the test in People vs. Dugno. In the case of Rafanan, the Supreme Court adhered to the guidelines it laid down in the earlier case of People vs. Golez, a 1915 decision. And the Supreme Court in the case of Rafanan says: “The required standards of legal insanity were elaborated in the 1950 case of People vs. Golez”. And the Supreme Court said: “A linguistic or dramatical analysis of this standard suggest that Golez established two distinguishable tests”. Of course, this is another viewpoint. There are supposed to be three tests according to Dungo. That is correct, but based on another point of view, based on Rafanan, there are actually two tests: the test of cognition and the test of volition, according to the Supreme Court.

Question: What is the test of cognition? Answer: The test of cognition means the complete deprivation of intelligence in committing the criminal act. Question: What is the test of volition? Answer: There must be a total deprivation of the freedom of the will. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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In the Dungo case, that is called the irresistible impulse test. And the test of cognition – complete deprivation of intelligence – in the Dungo case, was called the Right or Wrong Test. But in the case of Rafanan, quoting the case of Golez, it is the test of cognition versus the test of volition. Now, which of the two is considered as covered by insanity, under the mitigating circumstances? The Supreme Court continued: “We have gone over all decided cases before this Court. We will still have to see one where we acquitted somebody simply because there was no freedom on the will. We have not done it, where the accused failed to show complete impairment or loss of intelligence, the Court has recognized it a most as a mitigating circumstance, not an exempting circumstance, in accord with Article 13 (9) of the RPC”. So the test of volition is the recognized test in the mitigating circumstances under Article 13 (9). For insanity, the test of cognition.

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

So, any circumstance that is similar to any paragraph 1 to 9. And the Supreme Court applied this in so many cases. There was this case of an old man. He was around 65, but he could hardly walk, he could hardly see: The Supreme Court gave to his benefit the circumstance analogous to “above 70”. Although he was not really above 70, considering his physical condition, that is analogous. And there was the case of the creditor who could not collect from the debtor. Each time he would go to the debtor to collect the account, the debtor would always tell him to come back the next day. One day, the creditor got so sick and tired of the debtor’s alibis, that he mauled the latter. Is he liable for physical injuries? According to the Supreme Court, the feeling of the creditor is analogous to one of passion or obfuscation. So, in this case, the creditor was given the benefit of mitigating circumstance. Or in the case of a thief who stole the property of the victim. After one or two days, he was filled with remorse that he returned the stolen property. Is he liable for attempted theft? No more. That is already consummated. From the moment he took the property which then came to his possession and control, the theft was already consummated. Desistance was too late. Returning the property cannot be desistance. You cannot desist when all the elements have already been completed. But definitely, what he did as a point in his favor. He is to be given the mitigating circumstance, analogous to voluntary surrender. This analogous to somebody who commits a crime and voluntarily surrenders himself to the authorities or their agents.

Question: What are the mitigating circumstances in the Penal Code? Answer: There are two: (a) Ordinary Mitigating Circumstance – these are the mitigating circumstances found in Article 13. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(b) Privilege Mitigating Circumstance – they are all scattered all over the RPC, especially in Book II. You cannot find them; you have to identify them one by one.

Question: So, if there is privilege mitigating circumstance, you are entitled to a penalty that is one degree lower. But will the aggravating circumstance bring it back to one degree higher? Answer: No, that cannot be done because a privilege mitigating circumstance cannot be offset by an aggravating circumstance.

Question: Distinguish one from the other. ORDINARY - If there is an ordinary mitigating circumstance, the penalty is fixed within the minimum period within the same penalty. The presence of an ordinary mitigating circumstance will call for the imposition of the penalty within the minimum period of that particular penalty. - An ordinary mitigating circumstance is offset by an aggravating circumstance. They eliminate each other.

PRIVILEGED - If the mitigating circumstance is privileged, it is better because, according to the law, the penalty should be lowered by one or two degrees. Now, if penalty is punishable by prision correcional, the privilege mitigating circumstance will even lower the penalty not only to the minimum of prision correcional, but to the penalty next lower in degree, which under the scheme of penalties is arresto mayor. - A privilege mitigating circumstance cannot be cancelled or offset by an aggravating circumstance.

Memory Aid (from the notes of Atty. Teodoro V. Angel) The following are mitigating circumstances: N U I S

1. Those mentioned in the preceding chapter, when all the requisites necessary to justify or to exempt from criminal liability in the respective cases are Not attendant. 2. That the offender is Under eighteen year of age or over seventy years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 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.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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5. That the Act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same degrees. N 6. That of having acted upon an impulse so powerful as Naturally to have produced passion or obfuscation. S 7. That the offender had voluntarily Surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution; S 8. That the offender is deaf and dumb, blind or otherwise Suffering some physical defect which thus restricts his means of action, defense, or communications with his fellow beings. I 9. Such Illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him of the consciousness of his acts. N 10. And, finally, any other circumstances of a similar Nature and analogous to those above mentioned. A

(Recall NUISANSSIN)

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Chapter Four CIRCUMSTANCE WHICH AGGRAVATE CRIMINAL LIABILITY

Question: How do we define the concept of mitigating circumstances? Answer: They are circumstances which, if attending the commission of a felony, would tend to increase the prescribed penalty to the maximum period of the prescribed penalty.

Question: Why? What is the reason? Answer: Because the offender has shown a greater perversity or moral depravity as manifested by the following: (i) (ii) (iii) (iv) (v)

by the time of the commission of the crime; the place of the commission of the crime; the ways and means employed or involved in the commission of the crime; the motive or motivation behind the crime; or because of the personal background of the offender and the offended party.

You will notice that there are only 10 mitigating circumstances under Article 13, there are 21 aggravating circumstance under Article 14. More than double. It simply proves true the statement that there are more ways to do evil that to do good, and the road to hell is wider that the road to heaven.

ARTICLE 14. Aggravating circumstances – The following are aggravating circumstances:

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

FIRST – This will not apply to private individuals. The offender here must be a public officer. SECOND – That not every public officer who commits the crime will automatically be affected. The law says that he must take advantage. If he did not take advantage of his public position, his liability should not be aggravated.

US vs. TORRIDA 23 Phil. 189 Facts: The accused, shortly after entering upon his duties as councilor of the town of Aparri, ordered that deaths of all large animals must be reported to him as councilman. As a result of this instruction, the ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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owners of several such animals were induced to pay the accused supposed fines on the belief that such were required by a municipal ordinance. He spent the money paid to and received by him as fines. Held: The fact that the accused was councilor at the time placed him in a position to commit these crimes. If he were not a councilor he could have not induced the injured parties to pay there alleged fines. It was on account of his being councilor that the parties believed that he had the right to collect fines and it was for this reason that they made the payment. It is true that he had no right to either impose or collect any fine whatsoever and it is likewise true that a municipal councilor is not an official designated by law to collect public fines, but these facts do not destroy or disprove the important fact that the accused did by taking advantage of his public position deceive and defraud the injured parties out of the money they paid him.

ARTICLE 62, PARAGRAPH 1-a, RPC. When in the commission of the crime, advantage was taken by the offender of his public office; the penalty to be imposed shall be in its maximum regardless of mitigating circumstance

Article 14 (1) talks of an ordinary aggravating circumstance which can be offset also by a mitigating circumstance. But Article 62 (1) is a special aggravating circumstance which cannot be offset by a mitigating circumstance because the latter says regardless of any mitigating circumstance.

Question: Does this mean Article 14 is now useless because of that amendment? Answer: To apply Article 62 (1-a), it must be alleged in the complaint. If it is not alleged in the complaint but is proved during the trial, apply Article 14 (1). If it was alleged in the complaint and proved during trial, then you apply Article 62.

2. That the crime be committed in contempt or with insult to the public authorities.

The best example of this is when the mayor is conducting an official inspection, or when he is outside of his office, talking to the people, or he is inaugurating something, and they you, the accused commit a crime in his presence – meaning, his presence did not prevent you from committing the crime, and you know he is there. That would be an insult to him! Then the crime is considered aggravated because of the place and time. But be sure that the public officer or authority is not the victim, that he is just a spectator. You commit a crime in his presence.

Question: Suppose I will commit a crime within the presence of the PNP Superintendent. His presence did not prevent me from committing the crime. Is this covered by paragraph 2? Answer: No, paragraph 2 will not apply in the above case. The aggravating circumstance does not apply to crimes committed within the presence of constabulary soldiers or PNP men.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Why? Answer: Because in order to apply, the crime must be committed in contempt of or with insult to the public authorities.

Question: What do you mean by “public authority”? Answer: Public authority refers to persons in authority, like mayors, governors, etc. If you commit the crime in the presence of a PNP Superintendent, that is not contemplated because he is not a person in authority. He is an agent of a person in authority.

However, such doctrine was reversed in 1981.

PEOPLE vs. RODIL 109 SCRA 308 Facts: The crime was committed in the presence of constabulary captain, who is considered as an agent of a person in authority. Issue: Whether or not paragraph 2 applies. Held: The term “public authorities” are not confined to persons in authorities because if the intention of the law was to confine paragraph 2 to persons in authority, then the law should have been specific. The law should have been worded as: the crime be committed in contempt of or with insult to PERSONS IN AUTHORITY, but the law did not use “person in authority” but instead the term “public authorities”. “Public authorities” is broader; it includes agents of persons in authority.

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.

An analysis of this paragraph would show that there are four circumstances there. That the crime be committed in disregard of respect due to the offended party on account of his: (i) Rank; (ii) Age; (iii) Sex; or (iv) That the crime be committed in the dwelling of the offended party, if the latter has not given provocation. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Suppose the four are present in one case, would you say that there are four separate aggravating circumstances. Answer: Numbers (i) and (iii) should be treated as one. But if it is also committed in the dwelling of the offended party, then that should be regarded as separate aggravating circumstance. The basis for this is that rank, age and sex have a common characteristic – they are part of the personal background of the victim. You are perverse considering the personal circumstances of the offended party, as compared to yours. But dwelling, on the other hand, is based not on personal qualification, but on place.

Rank It means that there is a difference in social standing between you (the offender) and the victim. Social standing could mean many things. The best example is in the military. If a private assaults a captain, then the crime should be aggravated. In an office, if the rank-and-file employee assaults the manager of the company, that should be considered as an aggravating circumstance. Or in a community, if a well-known civic leader, a well-known person in the community whose stature is high is assaulted by somebody in the community who is not so well-known, or by an “istambay”, that is aggravated.

Age The law does not contemplate that the offender is simply younger than the victim. What the law refers to is somebody, whose difference in age (with respect to the victim) should be one or such that one qualifies to be the parent of the other. The age difference should be substantially farther. The wider is the gap between the offended and the offender, the circumstance, becomes clearer. For example, the age gap is 20 years. This can now apply. The older the victim, the better. You are 20 years old, and then you assault somebody who is 70 years old, who is old enough to be your grandfather. Then that becomes aggravating.

Question: Suppose, it’s the other way around. Suppose a 70-year old man physically assaulted a 20-year old, will the aggravating circumstance apply? Answer: Yes, because the law does not distinguish who is older and who should be younger.

Sex The offender and the offended should belong to the opposite sexes. Now, this is one way. The offender here is male: the offended party is female. It cannot be the other way around. It is absurd that if a

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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woman will maul a man, then the man will accuse a woman of physical injuries with the aggravating circumstance of disregard for his sex. In other words, there is something wrong there. However, this will not apply if the difference id INHERENT in the crime, like rape or seduction. By nature, the offender is male and the offended party is female. So, you do not say that a man is guilty of raping a woman with the aggravating circumstance of disregard of respect due to the victim because of her sex. But you are not to rape except a woman! Also, when a crime is committed with passion or obfuscation, this paragraph is automatically out. Because you cannot deliberately disregard respect to the victim when you are already acting with passion or obfuscation, because the two are inconsistent positions.

Dwelling Question: What was the reason behind this? Answer: A man’s home is supposed to be his castle. One who goes to his house to commit a crime against him is more perverse than somebody who offends him somewhere else. If the offender waits for you to go out of your house before he commits a crime, at least he knows to respect the rules of man. It is worse when somebody goes to your house, then goes to your bedroom and attacks you inside. This guy is more perverse. And the perversity is shown by the place of the commission of the crime.

Question: What is meant by “dwelling”? Answer: It is supposed to be a structure used for rest or comfort. Dwelling includes the dependencies of the house, the staircase and the enclosure under the house. That’s the concept. It includes even the garage beside the house where you clean your car.

“Dependencies” of one includes the jamb of the house. The staircases part of the dwelling.

Question: Is it necessary for the offender to go inside the house to commit a crime? Answer: No. In the case of People vs. Ambo, where the accused shot the victim from the street – meaning he shot him through the window and killed the occupant inside the house – the Supreme Court applied the aggravating circumstance of dwelling.

Also, it is NOT necessary that the crime is finally consummated inside the house of the victim. Like what happened in one where the offender went to the house of the victim to kill him. In this case, is dwelling aggravating? Yes, because the initial attack started in the residence of the victim. “Dwelling” in Spanish is known as the aggravating circumstance of morada.

Question: When is dwelling not aggravating? When does dwelling not apply as an aggravating circumstance? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: There are several: 1.) It is not aggravating if the offended party has given provocation. Meaning, your house is your castle. People are expected to respect that. They should not go there to commit a crime against you. But you should not use this castle as a fortress to abuse others. For example, you are in your house. Everyone, who passes by, you insult. In other words, you taunt them. One of them goes pissed. He went inside your house and attacked you. Question: Is the dwelling aggravating? Answer: No, you gave provocation. In this sense, you have waived the sanctity of your own dwelling by doing that. 2.) That the crime be committed in contempt or with insult to the public authorities. Example: Trespass to Dwelling. In the crime of trespass to dwelling, dwelling is not aggravating anymore; it is already part of the crime. Or robbery of an inhabited house. That is a crime necessarily committed in your house, and such is no longer aggravating. 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. You cannot complain that the sanctity of your house is violated. The offender would just retort that the house is also his. Both of you have the right to live in the house. However, this exception does not apply in a boarding house, where the offender and the offended party are both boarders. If, for example, in a boarding house, a boarder enters your room, an exclusive room, and commits crime against you. There, he assaults you. It should be aggravated by dwelling, although both of the offender and the victim are living in the same house on the theory that, while it is true that you share the same dining room, the same sala, the room of one boarder is exclusively his. The decided case is a case on trespass to dwelling wherein a boarder forcibly entered the room of another boarder. The Supreme Court said: there is trespass to dwelling because the offender had no right to enter the room of the victim. Question: Suppose the person who is the victim is staying in that house temporarily. He does not own it. He is just a house guest and he commits a crime there while he is a guest. Is this aggravating? Answer: Yes. Dwelling is aggravating even if the stay of the victim in the house is a transient, it is only temporary. This is already considered covered by paragraph 3.

4. That the act be committed with abuse of confidence or obvious ungratefulness.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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There are situations here. That the act is committed with: (a) abuse of confidence; and (b) obvious ungratefulness

Abuse of Confidence One of the ways of aggravating a crime is through the ways and means employed in its commission. This will not apply again if the abuse of confidence is already a part of the elements of the crime. A good example is estafa through abuse of confidence. When you misappropriate goods entrusted to you, that is estafa. That is not aggravating because that type of estafa is coupled with abuse of confidence. That is already considered a part of the crime. Or qualified theft by an employee who committed it with abuse of confidence. No more. The abuse of confidence there is already an integral part of the crime, so it is no longer considered aggravating. This was applied in the case where a “yaya” killed the child entrusted to her care and custody. So, the killing of the child was considered as aggravated by abuse of confidence on the part of the offender.

With Obvious Ungratefulness For example, you take somebody to your house. You pity him because he is homeless. He has no place to go; he is starving. And you are a Good Samaritan. You know the Bible, you put clothing on his back, and you feed the hungry, etc… because whatever you have done to the least of My brethren you have done unto Me. So, you believe in that too. You took pity on him. When you wake up one morning, your appliances are gone. What kind of man is that! No “utang na loob”! That is the essence of obvious ungratefulness. He repays your kindness with a crime. That is what makes the crime aggravated.

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.

What makes the crime aggravated is the place where it was committed. There are actually four separate circumstances here: (i)

That it is committed in the place of the Chief Executive

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Malacañang Palace. Now, the Chief Executive need not be there. What is important is the place. (ii)

In the presence of the Chief Executive. This is whatever he may be, for as long as the crime is committed in his presence.

(iii)

Where public authorities are engaged in the discharge of their duties. A good example is when a crime is committed in front of a judge while he is presiding in the courtroom. Or if the crime is committed in the presence of the city mayor while he is discharging his duties at the mayor’s office. Now, suppose the crime is committed inside the courtroom, or inside the mayor’s office when he is already gone. Meaning, after the court session has ended or after office hours. It is not aggravating. The law requires that it be committed in his presence.

(iv)

That the crime be committed in a place dedicated to religious worship. Now, suppose there is no religious worship. That is immaterial. What is important is that it is committed in a place dedicated to worship. There need not be a religious ceremony going on at that time. So, the church, the mosques – or any other place where people pray that is considered a holy place. This is because of all places where you could commit it, why commit in that place? He could commit the crime anywhere else. Why choose to commit it – of all places – in a place dedicated to religious worship.

Question: How do you compare (iii) with paragraph 2 – that the crime be committed in contempt of or with insult to the public authorities? Answer: The distinction is: If the public authority is in the discharge of his duties inside his office and you commit a crime in his presence, you fall under paragraph 5. If he is engaged in the discharge of his duties outside his office and you committed a crime in his presence, you are covered by paragraph 2. That is the difference.

Moreover, in paragraph 2, a public authority, like a mayor, should not be the victim of the crime. It was simply committed in his presence. In paragraph 5, he may or may not be the victim of the crime. If you committed a crime in his presence inside his office, you are covered. If you assault the mayor inside his office, while he is engaged in the discharge of his duties, you are covered by paragraph 5.

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.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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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. There are three circumstances here: (i) (ii) (iii)

committed in the night time; committed in an uninhabited place; or committed by a band

Question: What happens if the felony is committed at night time, in an uninhabited place and committed by a band? So, all the three present, how many aggravating circumstance are there? Answer: There seems to be a conflict here:  The authors of many books cite the Supreme Court of Spain based on the identical provisions of the Spanish Penal Code. In one decision, the Spanish Supreme Court said that the three should be treated only as one.  But in another decision, the same Supreme Court said that there should be three because they do not have any common denominator. Night time is aggravating because of the time, an uninhabited place because of the place, band because of the ways and means employed. So, one who commits a crime when all three are present is more perverse than one who committed it only with one of them present.

Nocturnidad Question: What do you mean by nighttime? Answer: Well, we have in the Civil Code, for instance, sunset to sunrise. So, if the crime is committed during daytime, it will not be aggravating. In the first place, does daytime facilitates the commission of the crime? On the contrary, in the dark, the possibility of detection, the possibility of being recognized is low.

However, not every crime committed at nighttime becomes aggravating. There are two tests to determine whether or not the crime is aggravating - the objective test and the subjective test. In order that nighttime may be considered as aggravating, at least one test should apply.

Question: What is subjective test? Answer: Subjective test: whether or not nighttime is purposely sought by the offender in order to successfully commit the crime with impunity.

Question: What is objective test? Answer: Objective test: even if nighttime is not especially sought for, it facilitated the commission of the crime. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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PROBLEM: Suppose a crime is committed by the accused against you inside a movie house? You go to movie house during daytime – when you have just entered, chances are, and you cannot see anything because your eyes have not yet adjusted to the darkness. But after a few minutes, after you have adjusted to the dark, you can now see. So, at that very moment, the accused assaulted you. Obviously, the darkness of the movie house has facilitated the commission of the crime. Question: Is that aggravating? Answer: No. Even if it will pass the test, still it is not nighttime. Nighttime speaks of sunset to sunrise. If you enter the movie house at 12:00 noon, it cannot be nighttime, no matter how you look at it. That when you go outside, it is daytime, and when you enter again, it is nighttime again.

Despoblado Uninhabited place is also known as the aggravating circumstance of SOLITUDE.

Question: When is a place uninhabited? Answer: Where there are no houses around; the place is of considerable distance from the town or proper. Or even if there are some houses, they are so far from each other that you cannot reach or seek help from your nearest neighbor. The test is on whether or not there is a possibility of calling for help.

Question: There was a case in which the crime was committed in the middle of the forest. Because the offender found it best to commit the crime in a place where no one could help. But accidentally, there were hunters who were around at that time. Was the crime aggravated by despoblado? Answer: Yes. It is not sufficient that at that very moment, there were many people around. That is not the test. The test is by its very nature. Are there people there? Meaning, by accident, it turns out that there were people.

In the same manner that even if nobody helps you, if the place is NOT uninhabited place, it will not also be aggravating.

Question: A person was attacked at night in the middle of the subdivision. He was shouting for help, nut nobody came out to help him. Does the aggravating circumstance of solitude apply? Answer: No, because he was attacked in the middle of the subdivision.

Question: But nobody helped him; nobody came out… Answer: That is not the test. The test is the very nature of the place, not the accidental fact that nobody went to his rescue.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: The victim was killed in the middle of Manila Bay. He was there fishing. So, the offender followed him in a motorboat and killed him. What are the aggravating circumstances present? Answer: There is one – uninhabited place. Nobody lives in the middle of Manila Bay.

Quadrilla The law gives us the definition of a band: wherever 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. Take note that the law says MORE THAN THREE, so there are at least four.

Question: Suppose 100 people attacked you. Three of them are armed, the 97 are unarmed. Is the crime aggravated? Answer: NO, because the law says that more than three armed men. Hence, more than three should have been armed.

Question: Suppose 100 people attacked you. Three of them are armed, the 97 are unarmed. Is band an aggravating applicable? Answer: Still the answer is NO, because the law says “more than three armed men”.

Question: These four or more offenders are armed with what? Answer: The law says “armed”. Suppose one has a bolo, one has a gun, and the other one has a club. Then, in effect they are armed because it is not necessary that they are armed with firearms or guns.

PEOPLE vs. MANLOLO 169 SCRA 394 Facts: Somebody, when he was going home, was attacked by a group of istambays. They hit him and then they get stones and threw stones and rocks at him. They were about 4 or 5. This happened in Pasay City. Issue: Whether or not a crime was committed by a band. Held: Exactly, the offenders, who were many, attacked the man by throwing stones at him. There was an intention to cause death when the accused threw stones at the victim – thus, including stones under the term “armed”, under the phrase “more than 3 armed malefactors acted together”. So, there is an aggravating circumstance of band.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.

Take note that on occasion like these, people should help one another. But in your case, you took advantage of the confusion to commit the crime. The best example is during fire or conflagration. People go out there not to help but to steal. Looters. That is precisely what is contemplated in this aggravating circumstance. As a matter of fact, based on the amendment of Article 310 of the RPC (qualified theft by a special law), when the crime of theft is committed during fire, the crime is no longer simple theft but is considered as qualified theft, raising it to the category of a higher offense. However, if it is not properly alleged in the information, the crime is simple theft, aggravated by paragraph 7. But if it is properly alleged, paragraph 7 is converted from an ordinary aggravating to a qualifying circumstance.

Question: What is an example of other calamity or misfortune? Answer: Based on statutory construction, it should be of the same magnitude as a conflagration, shipwreck, earthquake or epidemic.

A good example is the Mt. Mayon eruption. While the people are fleeing for their lives, you are committing a crime during the height of a volcanic eruption or during the height of a typhoon. There was a case before decided by the former CFI of Davao City where a motor launch runs out somewhere between Davao and Davao del Sur. Some of the passengers decided to rob their fellow passengers and escaped. They left the motor launch after robbing their co-passengers and killing some of the passengers. They were convicted here in Davao and the judge here said that the crime was aggravating by paragraph 7 because it was committed on the occasion of misfortune. What is misfortune? That the motor launch was left just floating out there in the sea? When the case reached the Supreme Court, the court rejected the application of the aggravating circumstance because the misfortune contemplated by the law is not that which will affect only a small number of people in the motor launch. It should be big in magnitude. When we say shipwreck, earthquake, it involves a lot of people in a water area rather than the people who were stuck in the motor launch.

8. That the crime be committed with the aid of armed men or persons who insure or afford impunity.

Question: How do you distinguish this from a crime committed bay a band? Answer: In here, there are also some armed men. In band, there should be four or more armed men.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Suppose there are only two or three men? Answer: Then it falls under paragraph 8, when the crime is committed with the aid of armed men.

Moreover, to constitute a band, the four armed men should act together in the commission of the felony. Meaning, their participation was direct and they should have acted together. But here, it is not necessary that the armed men acted directly in the commission of the felony. It is enough that the crime be committed with the aid of armed men. Meaning that they acted indirectly is sufficient. Like for example, one commits the crime and then he relies on the armed men behind him to help if necessary. So, meaning, you are emboldened to commit a crime because you have a “back-up”. But they did not act directly. They are accomplices. In this case, the liability of the principal is aggravated by paragraph 8.

PEOPLE vs. BUELA 227 SCRA 534 Issue: Is the aid of armed men aggravating if the three persons were all armed under the same plan and with the same purpose? Held: When the crime is committed by three persons, who were all armed, the aggravating circumstance of the crime having been committed with the air of armed men under Article 14 (8) of the RPC cannot be appreciated in this case because if they acted with the same plan and with the same purpose – meaning, in order for it to be aggravated in the situation, their participation should be indirect rather than direct.

Question: What happens if the crime is committed by a band when 4 or 5 persons acted together? What happens to paragraph 8? Answer: That is already absorbed by a band.

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

10. That the offender has been previously punished 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.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What are the four types of criminal repetition in the Penal Code? Meaning, the offender is not committing the crime for the first time. Answer: In the RPC, there are four types of criminal repetition: (i) (ii) (iii) (iv)

recidivism habituality or (reiteration) habitual delinquency (multi-recidivism) quasi-recidivism

Recidivism and habituality are ordinary aggravating circumstances which are found in Article 14. The third one, habitual delinquency, is what called extraordinary aggravating circumstances. And the last one, quasi-recidivism, is a special aggravating circumstance.

Reindicia Question: Who is a recidivist? Answer: A recidivist is a person, who, while on trial for one offense, has been previously convicted by final judgment of another crime embraced within the same title if the Penal Code. So obviously, he is at least a second offender, and he must be found guilty for the second offense.

He has a previous criminal record; he has a previous conviction for another felony. So, the previous conviction is not of a special law, but for the same felony. And what is important is that the felony which he previously committed, for which he was convicted, and the present felony for which he is now found guilty, are embraced within the same title of the Revised Penal Code. So, if the two felonies are not embraced in the same title of the Code, there is no recidivism. The best example is, you were convicted before for physical injuries, and you are found guilty of homicide. Physical injuries and homicide are both Crimes against Persons. Or you were convicted before of the crime of theft, and you are found guilty of robbery or estafa – which fall under Crimes against Property.

Question: Suppose a person was convicted before for the crime of homicide, and the case is not now on appeal with the Court of Appeals. And now, he is found guilty of the crime of physical injuries, a Crime against Person. Can his liability of physical injuries be aggravated by recidivism? Answer: Yes. The law does not require service of sentence. The law just states x x x has been previously convicted by final judgment. Meaning, even if he was pardoned, the pardon may erase the penalty, but it will not erase the fact of conviction. The important thing is the conviction, not the service of sentence.

Reiteracion ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Take note that in paragraph 10, habituality need not embrace similarity of the previous offense and present offense. Should not be, because if they are embraced in the same title, then it becomes recidivism. For example, a person commits or was convicted before and punished for a Crime against Property for which he was sentenced to the penalty of reclusion temporal. Now, he is found guilty of a Crime against Persons. So, it is not embraced in the same title of the Penal Code for which he is sentenced by the trial court prision mayor. Reiteracion applies because he has been previously punished for another offense for which the law attaches a higher penalty.

Question: Suppose the penalty for the first felony is a prision mayor, and the penalty for the new felony is also a prision mayor? Answer: Then reiteracion applies because the law says he has been punished for a crime to which the law attaches an equal penalty, either higher or same.

PROBLEM: Suppose a man, several years ago, was found guilty of slight physical injuries – light felony and he was sentenced to one day of arresto menor. And then after a year, he was found guilty of slight oral defamation. He was sentenced a penalty of one day imprisonment of arresto menor. And now, he is found guilty of rape, and he is punished with the penalty of reclusion perpetua. If you look at his record, no two crimes are embraced in the same title of the Penal Code. The first one is slight physical injuries (Crimes against Persons); slander (Crimes against Honor); and rape (Crimes against Chastity). So, he is not a recidivist.

Question: The first offense is a light felony; the second offense is also a light felony. As a matter of fact, he was only sentenced to one day of arresto mayor. This time the felony (rape) is punishable with reclusion perpetua. Is there reiteracion? Answer: Yes, because he has been previously punished for two offenses to which the law attaches a lesser penalty.

PROBLEM: Suppose a person was found guilty of the crime of homicide and was sentenced to a penalty of reclusion temporal, but was pardoned by the President. So, he did not serve any single day in jail. Later on, he was found guilty of robbery, another felony? And the penalty for homicide before was higher. Question: Is there reiteracion? Answer: NO. What is important in reiteracion is he was previously punished, not convicted. In recidivism, all that the law requires is a PREVIOUS FINAL JUDGMENT of conviction. In reiteracion, the law requires that he has PREVIOUSLY BEEN PUNISHED, not merely convicted.

11. That the crime be committed in consideration of a price, reward, or promise. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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What makes the crime aggravating is the motivating power. The best example would be the hired assassin. You hire somebody to kill for you. That guy has no grudge against the victim; he does not even know the victim. But because he is willing to commit a felony – that shows perversity on the part of the offender. Hired guns, hired killers, guns for hire, mercenaries are best examples. The crime was committed in consideration of price, reward or promise. What is contemplated by the law here is that there was a previous proposal and a previous conspiracy. Because, how can you hire somebody if he will not agree if there is no agreement? So, they did not stop the conspiracy. In other words, the crime was fully executed by one. We call the one hired him as principal by inducement, and one that commits the crime is called principal by direct participation under Article 17 of the RPC. Question: If I hire someone to kill my enemy, whose liability under paragraph 11 will be aggravated? The liability of the killer only, or should price, reward or promise be aggravating for both of us? Answer: It is not only the one who receives the price, but it also includes the giver.

Now, in the book of Reyes, he cited some old decisions which appear to be conflicting. The case of People vs. Parro (36 Phil. 923) and US vs. Maharaja (38 Phil. 1), where the Supreme Court said that the aggravating circumstance applies both to the one giving the price or reward AND the person who receives the price or reward. But in another case also cited in his book, the case of People vs. Talledo (85 Phil. 539), the implication was that it is only aggravating for the person who receives the reward or price. It will not affect the giver because the law says xxx that the crime be committed in consideration xxx. And the implication is that “committed” refers to the one committing it. Meaning, the principal by direct participation, not the mastermind. However, the case of Talledo, has been misinterpreted because the Supreme Court has already corrected that in 1971. Whatever statements that appears in the book of Reyes about the doubt, there is no more doubt as that has been settled. Paragraph 11 is already settled as applied to both the participants and the inducer.

PEOPLE vs. ALINCASTRE 40 SCRA 391 The price, reward or promise is aggravating for both not only the receiver but also the giver. If a person is considered as morally depraved for committing a felony in exchange of a material reward, then the person who gave the offer to commit the crime in exchange for a reward is also a depraved person. The general rule about aggravating circumstances is that even if the aggravating circumstance is not alleged in the complaint or information, but proven during the trial, it should be appreciated. It is not necessary to allege it. The important thing is that it was established during the trial.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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However, the rule does not seem to apply to recidivism because, based on some decisions of the Supreme Court, recidivism should be alleged in the information. To appreciate recidivism, it is necessary to allege it in the information. Absence of this allegation bars the trial court from allowing of evidence regarding the matter. So, it should be properly alleged.

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.

Now, what qualifies it as aggravating is the manner, ways and means of the crime. Do not confuse this with paragraph 7. In paragraph 7, the crime was committed on the occasion of a conflagration, or fire, etc. So, the timing x x x ON THE OCCASION x x x. Here, the crime was committed BY USE OF x x x. However, this would not apply if the use of fire is included in the definition of the crime. Like arson, since the means is fire, fire can no longer be aggravating, being already considered as part of the elements of the crime. Another example would be that the crime was committed by means of poison. When you kill somebody by poisoning him under Article 248, the crime is murder. This is one of the qualifying circumstances of murder. If properly alleged in the information, in which case, the use of poison is no longer aggravating. It is already part of the elements of the crime. However, if a person is charged only with homicide, and in the course of the trial, it was established that he killed the victim by poisoning him. What crime did he commit? It is still homicide under the Rules of Criminal Procedure because you cannot convict a person for an offense higher than the one being charged. So, the crime is homicide, aggravated by the fact that he committed it by means of poison. But if it is alleged in the information, it is called murder, qualified by the use of poison under Article 248, not under Article 14.

Question: Suppose the husband killed his wife by poisoning her. The use of poison was alleged in the information. Is the use of poison aggravating under paragraph 12?. Answer: Yes, because if the husband kills the wife, the crime is not murder, but PARRICIDE. And the qualifying circumstance in parricide is not poison, but relationship. So, since the qualifying circumstance is relationship, the use of poison becomes an aggravating circumstance under Article 14 (12). So, that’s how you apply the circumstances in relation to Book II.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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13. That the act be committed with evidence premeditation.

In Spanish, it is called premeditacion. Now, this is the exact opposite of the mitigating circumstances that the crime was committed with passion or obfuscation. In passion or obfuscation, the offender did not have sufficient time to reflect the commission of the crime, so it was more of emotion than reason. It is the other way around here. He has all the time to reflect; he has all the time to reconsider, but still he proceeded. Despite the careful deliberation, thinking still proceeded to commit the crime. This is one of the hardest aggravating circumstances to prove because it is not enough that you prove that the accused committed the crime, you must also prove that the accused already planned or was determined to commit the crime, even before the date it was actually committed. You must have previous history of the party. And the last requisite is a matter of computation. There must be sufficient time between the determination to commit the crime and the day the crime was committed to show that he has the time to reflect. Now, what is sufficient time is relative. Suppose, he planned to commit the crime one or two days before it can be, how about 15 minutes? The number of hours is sufficient. The longer the time gap, the better, the application of this circumstance becomes clearer. The longer the time he has to reflect, the premeditation becomes more evident. Evident premeditation WILL NOT APPLY in error in personam. PROBLEM: A planned to kill X and he has planned to kill X for so long. He planned and he made preparations to kill X. One day, he started to implement it. He killed X but it turned out to be Y. He did not kill X because of error in personam. Of course, based on Article 4, he will not be prosecuted for the death of X because he did not kill X. He will now be prosecuted for the death of Y and it was established that he has been planning to kill X for so long. Question: Is the killing of Y by evident premeditation? Answer: No, there is none because he did not premeditate the death of Y. The evidence would show that he premeditated the death of X. So, Y was not a part of that premeditation. However, that should not be confused with the ruling that it is not necessary to premeditate for a specific victim. So, for example, where the accused planned to be amok. He will kill every person he meets. Is my liability aggravated by evident premeditation? Yes. But I did not ponder. You did not ponder, but there is no error in personam. Why? Because when I premeditate, I will kill the people I will meet. Whoever I meet is part of my premeditation. There is no error. That is the phrase to whom that my concern. Therefore, it is a meditated act.

14. That the craft, fraud or disguise be employed.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Now, actually, craft and fraud are identical. There is an employment of tricks. The offender resorted to tricks to commit the crime. The only difference is the manner the trickery was committed. If the trickery is more of scheme or action, rather than the use of words – intellectual trickery or action, it is more of craft. Whereas, fraud refers more to the trickery or to the use of words by the offender. Insidious machination by the offender. For example, somebody rides a taxi, tells the driver to bring him to this place, and then when they reach the place, the passenger now announces a hold-up and divests the driver of his income at that time, or even kills the driver. The robbery there is definitely aggravated by the use of craft. And what is the trick? The offender who is actually a robber pretended to be a paying passenger. He tricked the driver to bring him to a designated spot. If the driver knows your intention, he will not get you as a passenger. Why will he allow himself to be robbed or even killed? Just for that distinction, craft and fraud are almost identical. There is the use of trick or scheme by the offender.

PEOPLE vs. EMPACIS 222 SCRA 59 The stratagem and ruses that constitute craft and fraud are the following:



Where are accused pretended to be constabulary soldiers and by that ploy, gained entry into the residence of their prey, to rob them thereafter;



They pretended to be needful of medical treatment, and due to this, they were able to enter the house of the victim and there robbed and killed him; When they pretended to be customers wanting to buy a bottle of wine;

  

When they pretended to be the co-passengers of the victim in a public utility vehicle; They posed as customers to buy cigarettes, or as being thirsty asking to drink a glass of water, etc.

In all those instances, the crime was aggravated with craft and fraud.

Disguise When the offender tries to conceal his identity.

PEOPLE vs. SONSONA

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Facts: The offender covered his face with a handkerchief in order to prevent his being identified. But despite that, the victim recognized him. Held: Disguise is not aggravating because he was not successful. Actually, he was still recognized even if he disguised.

PEOPLE vs. CABATO 160 SCRA 98 Facts: The accused disguised himself by covering his face and the disguise fell down, or the cover of his face accidentally fell down. Therefore, he was recognized. Held: The disguise is aggravating.

Question: What makes this case different? Answer: In the Solsona case, nothing fell down. The cover is still intact, but just the same, he was not successful. In Cabato case, the disguise could have been successful, only that it fell down. Meaning, had it not fell down, the disguise would have been successful. So, the Supreme Court considered the circumstance still as applicable.

15. That advantage be taken of superior strength, or means be employed to weaken the defense.

This generally applies to Crime against Persons. Now, in order for the aggravating circumstance of superior strength to apply, there must be evidence that the offender is of superior strength than the other. It cannot be presumed. It has to be clearly established. And when we say “superior strength”, shall it mean to say you have more assets than that of the other? Like for example, when the two or more people committed the crime, superiority in number would definitely give the offender superior strength. Or when one is armed with the weapon and the other is not armed with a weapon, and then superior strength is really apparent. And not only that. He clearly took advantage of it because if the crime is the product of anger or emotion, then we cannot say that he deliberately took advantage. There is no showing that the offender really relied on superior strength.

That means be employed to weaken the defense.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The other one is a little bit different. Maybe, the parties are of equal strength, no one is superior to the other. But the accused saw it that the victim will be at the disadvantage. So, if you are now in a disadvantage, in effect, my strength becomes superior. It has been applied to cases:

 

Where the accused threw sand into the eyes of the victim. If your eyes are filled with sand, you cannot see. You have to close your eyes. So how can you defend yourself? Where the offender deliberately intoxicated his victim and the victim was already drunk he could hardly stand. That is the time he is assaulted.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Memory Aid (from the notes of Atty. Teodoro V. Angel) The following are aggravating circumstances: A I D A D

U S A R P P I

E E A T I U D A A

1. That Advantage be taken by the offender of his public position. 2. That the crime be committed in contempt 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 is be committed in the dwelling of the offended party. 4. That the act be committed with Abuse of confidence or obvious ungratefulness. 5. That the crime be committed in the palace of the Chief Executive or in his presence, or where public authorities are engaged in the Discharge of their duties, or in a place dedicated to religious worship. 6. That the crime be committed in the night time, or in an Uninhabited place, or by a band 7. That the crime be committed on the occasion of a conflagration, Shipwreck, earthquake, epidemic or other calamity or misfortune. 8. That the crime be committed with the Aid of armed men or persons who insure or afford impunity. 9. That the accused is a Recidivist. 10. That the offender has been Previously punished by an offense. 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 international 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 Evidence premeditation. 14. That the craft, fraud or disguise be Employed. 15. That Advantage be taken of superior strength, or means be employed to weaken the defense. 16. That the act be committed with Treachery (alevosia). 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. 19. That as means to the commission of a crime a wall, roof, floor, Door, or window be broken. 20. That the crime be committed with the Aid of persons under fifteen years of age or by means of motor vehicles, motorized watercraft, 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 commissions. (Recall: AIDA DUSA RP PIE EAT IUDA A)

Requisites of Evident Premeditation: T A La

1) Time when offender came to DETERMINATION to commit crime; and 2) Overt Acts indicating that offender clung tenaciously to his determination to commit crime; and 3) Sufficient Lapse of time between determination and execution allowing offender to calmly reflect on consequences of his actions.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(Recall: TALa) Requisites for Superior Strength (Three Test) 1. 2. 3.

Notoriously Inequality of forces; Numerically superiority of accused over victim; and Kind of weapon used by accused out of proportion to defense available to victim.

(Recall: INK)

Requisites of Treachery: 1. 2.

That offender Consciously adopted this particular means; and That the Means would ensure commission of crime without Risk to himself Arising from Defense that offended party might make.

(Recall: CoMe / RADe)

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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TITLE TWO PERSONS CRIMINALLY LIABLE FOR FELONIES In every felony, there are generally two parties involved: 1. 2.

The offended party – the victim; and The person who commits the felony.

Now, the person who commits the felony must be a natural person. Therefore, only human beings are contemplated by law. That is obvious because in every felony, there is an act or omission. Act means a physical action, a physical movement. A corporation has no physical existence. It is only a person under the law. Also, for a person to be liable for a felony, he must have the; 1. 2. 3.

Freedom; Intelligence; and Intent

These are faculties belonging to a human being. A corporation can be held liable for committing a criminal act, but generally the one who will go to jail are the officers because the corporation can only act through its officers. However, the victim of a corporation can be a juridical. You can swindle another company and you commit Estafa by running away with corporate funds. So, a corporation cannot be an offender, but it can be an offended party. Of course, the one who will file the case is the officer in behalf of the corporation. But definitely, whether you are the offender or the offended party, you must be a person because if you are not a person, you have no right under the law. Logically, a dead man cannot be a victim of any felony except the crime of libel or oral defamation under article 253. The concept of libel can be committed to blacken the memory of the dead person because libel is a crime against honor. While it is true that a person’s rights die with him, his honor is not suspended to die with him. His honor is supposed to live after him forever. So no one has the right to defame the honor of another person just because he is already dead. Now, we are not interested here in the victim. We are interested in the persons who are criminally; 1. 2. 3.

Principals; Accomplices; and Accessories

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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There is an analogy about the movies, the principal or main actor is the lead, and the story revolves around them. Now, what about the accomplices? They are the supporting cast and minor characters. How about the accessories? These are the extras; they are seen only in a scene or two. Art. 16. Who are criminally liable. — The following are criminally liable for grave and less grave felonies: 1. Principals. 2. Accomplices. 3. Accessories. The following are criminally liable for light felonies: 1. Principals 2. Accomplices.

Article 16 immediately gives us the principle. For grave and less grave felonies, all of them are liable. But for light felonies, only the principals and accomplices are liable. So, conclusion: Accessories are exempt from criminal liability in light felonies. In effect, Article 16 is an exempting circumstance based on public policy. The reason behind this is similar to that in Article 7 where the general rule also is: Light felonies are only punishable when they are consummated. Question: Why? Answer: The role of an accessory is very minor. Even in grave or less grave felonies, the penalty given to an accessory is very light, very much lower than the principal. How much more if the felony is light? If the felony is light, even the penalty for principal is also light. So, what would be the penalty for the accessory? Very Negligible. So, there is no more liability. It creates an exempting circumstance under Article 16. With this, you will notice that there are certain principles to remember about light felonies. Light felonies defined in Article 9. There are 2 principles which create exempting circumstances: One is found in Article 7 and the other is in Article 16. Article 16 says: Only accessories are exempt from criminal liability in light felonies regardless of whatever crime that is a light felony, whether it is against persons or property.

Art. 17. Principals. — The following are considered principals: 1. Those who take a direct part in the execution of the act; 2. Those who directly force or induce others to commit it;

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3. Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

While the law divides persons criminally liable into 3 classes, Article 17, further provides or classifies principals into 3 types: 1.

PRINCIPALS BY DIRECT PARTICIPATION Those who take a direct part in the execution of the act.

2.

PRINCIPALS BY INDUCEMENT OR INDUCTION Those who directly force or induce others to commit it.

3.

PRINCIPALS BY INDISPENSABLE COOPERATION Those who cooperate in the commission of the crime by another act without which it would have not been accomplished.

When the felony is committed by only one person and you are asked what you think his role. Then without thinking you say that he is a principal by direct participation. He cannot be an accomplice. If he is an accomplice, who is the principal? There is no accomplice if there is no principal. So, necessarily, if he is only one, he must be the principal, and necessarily, he must be a principal by direct participation. Now, there would be no principal by inducement if there is no principal by direct participation. There could be no principal by indispensable cooperation, without a principal by direct participation. That is why when you say that there is a crime committed by one person without looking you can say that he is a principal by direct participation. There could be no other role. The problem will arise if there are two or more people involved in the commission of the felony because it is possible that one is the principal, another is an accomplice and the third one is an accessory; or principal and accessory only without accomplice. It is also possible that all of them are principals. What type of principal? One of them by direct participation, another one by inducement and the other one by indispensable cooperation. It could also be principal by direct participation and inducement without the third or principals hhby direct participation and indispensable cooperation without the second or it is still possible that all of them are co-principals by direct participation. So, it is possible for a felony to be committed by 10 people? Yes, they are classifies as principals by direct participation. Therefore, that is now our problem.

PRINCIPALS BY DIRECT PARTICIPATION Question: When do you classify? 2 or more persons as co-principals by direct participation?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: 2 or more persons committing a felony are classified as co-principals by direct participation when two requisites are present. 1. 2.

That these people participate in the criminal resolution That the offenders, co-principals carried out the resolution by performing acts which tend to accomplish the objective

First Requisite: That these people participate in the criminal resolution That is tantamount to saying that you were in CONSPIRACY with each other. There must be a conspiracy between them – a conspiracy which is defined in Article 8 as an agreement between 2 or more persons and they agreed. So you say that you will present somebody who was listening when they were agreeing. That is difficult, chances are when two or more persons agree, there are no other persons present then. So you can hardly prove the agreement by direct evidence. But the agreement can be proven indirectly. Why? The agreement is here (In the HEAD); it is a MEETING OF THE MINDS. When there is a meeting of the minds between two persons, there is an agreement.

Question: What Principle to apply? Answer: The best evidence of what is in the mind is through one’s actions. The principle has evolved in this analogy; when two or persons commit a crime together, each performing an act in harmony with each other and everything is veered towards the same criminal objective, then, there action betrays the conspiracy. The conspiracy is proven by their own actions. That is the principle to remember.

Example: 3 or more people (A, B, C, D and E) simultaneously enter a bank and armed. A will disarm the security guard. B will herd all the people in the bank. C and D will start scooping the money from the teller’s booth and vault. Then all of them will simultaneously withdraw from the bank. Then the vehicle outside was driven by E; they ride the vehicle. Based on what you have witnessed, do you think there is a conspiracy among these 5 people? Is there an agreement among them to commit robbery? Or can we say that, “No, that could have been merely a coincidence, they entered the bank together. And the by instinct A, disarmed the guard and B also, by instinct, herded everybody into a corner. C and D without knowing each other got all the money and then without any agreement, they all withdrew form the bank. And accidentally, there was somebody waiting, and then they took a ride. Then he said to each other, “Who are you?” this is impossible scenario. The human mind will be taxed to its limits. That is the essence of criminal resolution because direct proof of conspiracy is very hard and the best proof of it is by action. Question: What is the importance of this element of conspiracy?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: The importance is, if there is conspiracy, the act of one is the act of all. Then all of them are equally liable for the crime. All of them will get the sane penalty for robbery. So, they have collective criminal liability. Therefore in that particular sense, A and B cannot say, “we are not guilty of robbery because in robbery, you commit the crime by taking the property. We did not take anything.” A will say, “What I did was to disarm the security guard.” B says, “Me too, all I did was to herd off the people. It was C and D who took the money. Then they shall be liable for robbery because I did not take anything.” Then E will say, “Neither will I be liable, because I did not even enter the bank.” In conspiracy, the act of one is the act of all. In one case, 4 or 5 people conspired to kill the victim. So, they cornered him inside the restaurant. They started to assault the victim and one of them held the victim. The 4 th person stabbed him. According to the third member, “I am not liable; it was the 4 th guy who stabbed the victim. My job was only to hold the victim’s hands. Then the other one says, “Neither will I be liable, I was just at the door. My role is to prevent the victim form running away.” No, it is as if all of you stabbed him. The act of one is the act of all. That is the importance of the conspiracy. I noticed last 2002, there was a problem in the BAR and that principle was applied. Actually, I already mention this problem earlier. This is the case of MAMBOLO. At about around 9:30 P.M., while Dino and Raffy were walking along Padre Faura St. in Manila, Johnny hit them with a rock, injuring Dino, and then Bobby stabbed Dino. But suddenly Jerry, Vic, Vaness and Ken surrounded Dino, and then Jerry stabbed Dino. Vic, Vaness and Ken kept on hitting Dino and Raffy with rocks. As a result, dino died. Johnny, Jerry, Vic, Vaness and Ken were charged with Homicide. Question: Is there conspiracy in this case? It is clear that they acted in unison extending towards the culmination of the same criminal resolution. So, what is the conclusion? Answer: There is conspiracy because their action betrays their agreement.

PROBLEM: Ben, a widower, driven by bestial desire, poked a gun at his daughter, forcibly undressed her and tied her legs to bed. He also burned her face with a lighted cigarette and like a madman, laughed while he was raping her. Question: What aggravating circumstances are present? Answer: 1.) Ignominy and; 2.) Alternative circumstances of Relationship. Question: It is possible that 2 or more persons commit a crime and appear to be acting in a conspiracy but in reality; they are acting independently of each other? Meaning, just a coincidence that the incident happened. Is that possible? Answer: Yes, because when we say that when 2 or more persons act together towards the commission of the crime, there is a presumption of conspiracy because it is very hard to say that there is none.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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PROBLEM: A has an enemy, X. B, another person is also the enemy of X. One day, a decided to maul X. B, on the other hand has already looked for X to kill him. And both of them acting independently started looking for X. A saw X, immediately approached him and started to hit him. At the precise moment, B arrived. During the fray, B stabbed X. X died. Question: Is there conspiracy? Answer: Based on the facts, there is no conspiracy. Since A’s intention is to inflict physical injuries – and he merely inflicted fist blows upon the victim is only liable as a principal by direct participation for physical injuries against the victim. On the other hand, the one who stabbed the victim is liable as principal by direct participation for the crime of homicide. So, in effect, there were 2 separate crimes, 2 criminals acting independently. That is called individual liability, as distinguished from collective liability. Question: Now, what happen if 2 or more persons conspire to commit a crime, but while committing the crime, one of them went beyond the agreement and committed another crime not contemplated in the conspiracy? Are his companions also liable for the crime? Are all co-conspirators liable for the crime committed by their companion who was not within the scene of their conspiracy?

Example: Robbery committed by a band paragraph 2 under Article 296 provides any member of a band who is present at the commission of a robbery by the band shall be punished as a principal of any of the assaults committed by the band unless it is shown that he attempted to prevent the same. So, at least 4 persons conspired to commit the robbery. So, they entered the house of A, one of them point a gun and they divested A of his belongings and then, one of them attacked the victim and killed him. This is robbery with homicide. Question: Who is liable for the robbery with homicide? Others would say that, only one who attacked and killed A is liable. Answer: All of them is liable because according to Article 296 in Robbery by a band, all of them are liable fir any assault committed by their companions unless you can show that you tried to prevent it. So if you do not try to prevent it, you are liable. In conspiracy, the act of one is the act of all. But Article 296 applies to Robbery with Homicide and committed by a band. So, if there are only three persons, this will not apply.

Question: Suppose there are only 2 or 3 robbers and they conspired to commit robbery only and then one of them killed the victim. Will all of them be liable for the assault or only him? Answer: this time we can apply another principle: That the conspirators are only liable for the crime contemplated in the conspiracy if there is no direct provision on that. Example X and Y conspired to kill A then, X killed B. now, who is liable for the death of B? The conspirators conspired to kill A, they never conspired to kill B. X is the only one liable.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: In another case, the offenders conspired to injure A. So, all of them mauled A. but one of the conspirators pulled out the knife and killed A. who is liable for the homicide? Answer: All of them are liable because in a conspiracy the act of one is the act of all. Two principles here that you have to balance: 1.) In a conspiracy the act of one is the act of all. 2.) The co-conspirators are not liable for any act of another conspirator not contemplated in the conspiracy. Question: Now, when do you apply one and when do you apply the other? How come that in that case where 5 people conspired to injure the victim, the SC said all of them are implicated. But in another case, the conspirators conspired to kill A but one of them killed B, the SC said only the of B is liable. Answer: When you try to examine, there is really a difference. In the first example, the contemplated victim is A, and the one who was killed was A. so, the same victim. Moreover, in crimes against persons, when the victim is killed, the physical injuries are absorbed. The conspirators are not separately liable. The physical injuries are absorbed I the killing, in result there is only one crime.

But in the second example, there were really 2 crimes, because there were 2 victims. The killing of A is a separate crime from the killing of B so you do not say that the killing of B is absorbed in the killing of A. unlike in the first instance, the victim is A and the person killed is A. and the physical injuries are absorbed in the killing of A. But in the other case, the intended victim is killed, another person is also killed. So, there are 2 crimes. So you cannot say that the death of B is absorbed in the killing of A because there is an entirely different victim. So, based on that, in the first case, all of them are liable for the death of A. in a conspiracy, the act of one is the act of all. But in the second case, all of them are liable for the death of A but only one them is liable for the death of B. that is entirely separate crime to be charged separately. That seems to be distinct.

Second Requisite: That the offenders, co-principals carried out the resolution by performing acts which tend to accomplish the objective

In effect, they should be present in the commission. So, we plan and we implement the plan. That is the second element.

People vs. Timbol Facts: The accused, 4 brothers, conspired to kill somebody. They met several times and planned. In the final meeting, they decided to implement the plan. Then the following day, one of the brothers had cold feet. He

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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did not show up. So, only 3 brothers were there at the meeting place, and they agreed to proceed with the crime. So, they went with the plan, minus the other brother. Held: SC said that one who did not show up is not liable. The second element is missing. He did not appear at the scene of the crime.

Question: Was the first element present? Answer: Yes, because evidence shows that he participated in the planning of the crime. The second element is missing. So he could not be a co-principal because the SC said if he participated in the planning only, he is guilty of conspiracy to commit a felony. Article 8 – Conspiracy and proposal to commit a felony – conspiracy and proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefore.

People vs. Delos Reyes Facts: A group of people tried to commit a crime. Then, while the crime was in progress, one of them left and the question is; whether or not he is liable? Held: To extricate himself from criminal liability, the conspirator himself must have performed an overt act to disassociate or detach himself form the unlawful plan to commit the felony. While he did leave the scene of the crime while it was in progress, such abandonment came too late. In legal contemplation, there as no longer a conspiracy to be repudiated because he had already participated in it.

Let us now review the second type pf principal:

PRINCIPAL BY INDUCEMENT Those who directly force and induce others to commit a crime.

Question: How do you fall under this classification? Answer: There are two ways: 1.) You directly force the principal by direct participation to commit the crime; or 2.) You induce him to commit a crime.

Force or Induce How do you force? By the use of irresistible force or by forcing under uncontrollable fear. However, if you do that, the principal by direct participation has a very good defense – Article 12. That there was no voluntariness. That there was no freedom. That leaves you alone liable.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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But the normal way of falling under this classification is when you are induced. When you persuade the other party to commit the crime and he agreed to do it, what is now the effect? There is conspiracy again. So a principal by direct participator is also in conspiracy with principal by inducement. So what binds them together will be conspiracy.

Question: How do you persuade? How do you induce another or convince him to commit the crime? Answer: There are many ways; by words of inducement, by promise of price or reward. To be classified as principal by inducement 2 requisites must be present: 1.) That the principal by inducement made the inducement with the intention of procuring the commission of the crime; and 2.) That the inducement was the determining cause of the commission of the crime without which the crime could not have been committed. First: That the inducement was made with the intention of procuring – meaning the inducer is serious. He was really interested in committing the crime. He was not joking because the concept of inducement has the same definition as proposal under Article 8.

Question: How do you induce? Answer: Through proposal. Promise, price or reward. Question: How do we define proposal? Answer: There is a proposal when a person who was decided to commit a felony proposes its execution. It should be decided and not merely a joke. Let us illustrate. There was a case where a woman claimed that she could no longer bear her husband. My husband is like this and like that. What shall I do? The friend in joking manner said; “Whew, it is simple, kill your husband!” so the woman killed her husband. She implicated her friend. When she made the proposal, there was no intention to kill. It would have been an ill advice. The effect was fatal. This is not the type of inducement here. Or in one case, somebody needs money. Then someone advised him and said; “It is simple, just hold-up a bank.” He indeed held-up a bank, but unfortunately he was caught. He implicates the other. The statement was not made with the intention of procuring the commission of the crime.

Second: Without such inducement, the crime would not have been committed. The inducement was the only reason for the commission of the crime. Without it the principal by direct participation would not have been committed the crime. Example: Guns-for-Hire. You are told to kill the victim. He said; “Give me a picture in order to identify him.” He gave you because are being paid. Without the payment, he will no ask you. Nothing personal, ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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everything is business and that is how assassins worked. The assassin would say; “I will kill people for money but you, you are my friend. I kill you for nothing. Normally, I do not kill people if it not for money. But since you are my friend, I will kill you for nothing. Just to show that it is for free. Note: The words of inducement must be offered PRIOR to the commission of the crime. How can you say that the inducement was the determining cause when it is made after the crime? For example, somebody approaches you and says; “I would like to tell you something, I killed so and so.” You killed? Well, congratulations! That is a good thing.” I am not a principal by inducement. The crime has already been committed. I only praised you but you do not say that my word is the determining factor. And another principle is; the principal by direct participation had no reason to commit crime on his own. That is why your inducement is the only determining factor. People vs. Omine 61 Phil. 611 Facts: There was a quarrel between A and B. A is the principal by direct participation. B is the victim. A was approaching B one night. A was holding a knife and he was approaching B. at that moment, X arrived. X shouted to A; “yes kill him, stab him!”, A killed B with the knife. X who uttered the shouts before the stabbing was impleaded as a principal by inducement. But the SC acquitted him. Held: Do not tell me that without the shouting of X, A would not have stabbed B. A was really going to stab B. there as a personal reason on the part of A. so, do not say that if it were not for the shouting of X, A would not stab B. it is just an additional. In other words, just firewood to keep the fire burning but actual, although without the shout there was already a reason for the principal to do that. Question: Principal by inducement is closely related to a person making a proposal to commit a felony under Article 8. What are the distinctions? Answer: Principal by inducement, there must be a principal by direct participation. Even if keep on inducing you, but you will not commit a crime, there is still no principal by inducement. But in certain crimes, like treason, rebellion, coup d’etat, the mere proposal to commit a felony is punishable. It is not necessary that the other party will actually commit it. And you do not call a person making the proposal a principal by inducement. He is classifies as principal by direct participation. This is he distinction between the two.

PRINCIPAL BY INDISPENSABLE COOPERATION Those who cooperate in the execution of the offense by another act which the crime would not have been committed. Briefly, it is called, Principal by indispensable cooperation. Sometimes, there is a confusion on whether a principal by direct participation or by indispensable cooperation. Because how do you become a principal by direct participation with another person? By cooperating with him. So, when I cooperate with you in the commission of the crime, I am also a principal by direct participation. But I would also be a principal by indispensable cooperation.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: what is the difference? Answer: The distinction is only on what the cooperation is all about. Question: In what way do I cooperate? Answer: If I cooperate in the execution of the crime, I am principal by direct participation. But if I cooperated by another act without which a crime would not have been committed, I am principal by indispensable cooperation. So, the cooperation in this type of principal is not I the execution of the crime but another act, an act other than the execution of the crime without the crime would not have been committed. Example: A person cooperates with the principal by another act, other than the execution of the crime. And please take note that what binds a principal by direct participation with a principal by indispensable cooperation is that there is again an agreement – conspiracy. Hence, what is common between these people is criminal conspiracy. They are in conspiracy. That is why we apply the rule on conspiracy – the act of one is the act of all. They are in conspiracy with each other.

People vs. Limbuangko 14 Phil. 184 Facts: The principal by direct participation got hold of some blank checks of somebody. So he planned to forge or counterfeit the signature of the drawer and encash in the bank the check. But he knows he will not succeed because the bank can easily detect that his signature is not really that of the drawer. There is an employee in the bank whose job is specifically to compare the specimen. So what did he do? He befriended the employee in the bank, the signature verifier. He said to him to cooperate. He succeeded in encashing the check. Held: Can we prosecute him for Estafa through falsication of commercial document, the complex crime of Estafa? Who is the by direct participation? The one who forged. He was the one who counterfeited the signature of the drawer. He was the one who encashed it. So he executed the crime. How about the signature verifier? He did not counterfeit the signature. He was not the one encashed the check. But he cooperated with the principal without such the crime would not have been succeeded. So he is liable as principal by indispensable cooperation. That is the perfect example. Sometimes it is easy; sometimes it is really very hard to determine whether you are a principal by direct participation or principal by indispensable cooperation. In one case, you cooperated with the other principal. Sometimes, is the act or cooperation in executing, a crime a cooperation by another act?

Example: I will agree that you kill somebody. I hold him so he will not escape. What’s that? What is my cooperation? In the execution of the crime of Homicide, or by another act? Just like in rape. A wants to rape the girl. So, he sought the help of B and C to subdue the girl, to prevent the girl from disturbing him while he rapes her. B & C complied. They held the girl, the victim was subdued. And A raped her. There is no question; B & C are also liable. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: How many are the principals? Principal by direct participation in the crime of rape or principal by indispensable cooperation? By direct participation or by indispensable cooperation? How do you commit rape? No question about conspiracy. All of them are conspirators. What type of principal are they? Are B and C principals by direct participation or indispensable cooperation? Who believe that they are principals by direct participation also, that they took direct participation in the commission of rape? How is it that in the crime of homicide, the one who held the victim and prevented him from running was considered as principal by direct participation when he was not the one stabbed the victim? There are cases where the SC said: Well, they prevented the girl from struggling or resisting, so they are also principals by direct participation. That is taking part directly in the crime of rape. So all of them are principals by direct participation. But there are also some cases where the Sc said that they are also principals by indispensable cooperation. Because the issue here is this: How do you commit rape? By having sexual intercourse. They did not have sexual intercourse with the girl. It was only A, but their help was indispensable to the commission of the crime of rape by virtue of the conspiracy. So there are 2 sets. But, this question is moot and academic because whether you are a principal by direct participation or by indispensable cooperation, they are similar. The act of one is the act of all. It does not make one any better than the other. You will say: “I’m not a principal by direct participation; I’m a principal by indispensable cooperation.” Okay, but the penalty is still the same. The act of one is the act of all because of conspiracy. As a matter of fact if you look at the information filed by the fiscal- it will say that they are coprincipals. Then, if you look at the decisions, the court will say that they are co-principals.

Art. 18. Accomplices. — Accomplices are those persons who, not being included in Art. 17, cooperate in the execution of the offense by previous or simultaneous acts.

So if you are a principal, you cannot be an accomplice at the same time. So if you are falling under Article 17, Article 18 will not apply to you.

Question: How do you become an accomplice? Answer: Obviously, if you are not in conspiracy with the principal by direct participation – because if you are in conspiracy, you fall under Article 17. What do you do? You cooperate. You cooperate with whom? You cooperate with the principal by direct participation through previous or simultaneous acts. That is why we must distinguish what type of cooperation is this. If you commit a crime and I cooperate with you.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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I could be a co-principal by direct participation; I would be a principal by indispensable cooperation; I could also be an accomplice, because an accomplice also cooperates.

Question: How do you distinguish cooperation by a principal from cooperation by an accomplice? Answer: If the cooperation is pursuant to a conspiracy, you are a principal. You fail under Article 17. If your cooperation is not pursuant to a conspiracy, you are under Article 18. As to the exact act, there is sometimes no difference. It will be your cooperation and his cooperation. The only important question is whether there was a conspiracy or none.

Therefore, if there is doubt as to whether; there, is conspiracy or there is conspiracy, the doubt is resolved in favor of the lesser degree, of participation, para mahulog ka na accomplice.

no

Question: How to cooperate? How can I cooperate without being in conspiracy? How will that happen? How can you cooperate without an agreement? Answer: The concept of cooperation by an accomplice is that a person is an accomplice who, not being in conspiracy with the principal, but knowing about the criminal intent of the offender, concurs with it and cooperated either in a previous or simultaneous act. Not being in conspiracy but knowing of the criminal intent concurs. Meaning, I agree. So I will just cooperate. Example: You are a taxicab driver. Then one night 2 or 3 passengers hailed you to take a ride. While driving, you overheard their conversation. You listened. Base on their conversation, they were going to commit robbery. You learned about it. When they reached that place, they asked you to wait. "Wait for 30 minutes, okay" We are just going to that house and rob somebody in it." Okay, you agree. So you knew that they are going to rob somebody then after 30 minutes they returned, then drove them off. So in effect, you are the driver of the getaway vehicle, Did they ask you to join them? No. There was no agreement. But knowing about their intent to rob, you stayed all along, you cooperated. You will get a bigger payment. What is the liability of the driver? Accomplice. But suppose the passenger will say, "Pare, we are going to rob a house, you will be our driver, wait for us outside. Will you agree or not? "Agree". What's that? Principal? There is already a conspiracy. So, in case of doubt, the doubt is resolved in favor of less cooperation. That is the role of an accomplice. How do you cooperate? By previous or simultaneous act. That is simultaneous. Simultaneous act of robbery. Somebody approaches me: “Sir, do you have a gun?” Yes, I have, why” may I borrow it” Why? “I’m going to kill somebody. “So I lent him the weapon and killed the person. What is my role? I am an accomplice. Knowing his criminal intent to kill, he borrowed my gun and I cooperated—by a previous or simultaneous act.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Distinguish principal by inducement or indispensable cooperation from accomplice. Because both types cooperate with the principal. PRINCIPAL The cooperation of a principal by indispensable cooperation is indispensable, without which the crime would not have been committed.

ACCOMPLICE The cooperation of an accomplice may be necessary but no indispensable. Meaning, the crime may still be committed.

The cooperation of the principal by indispensable cooperation is pursuant to a conspiracy.

But the cooperation of an accomplice is not pursuant to a conspiracy.

Example: Without the cooperation of the signature-verifier, I would not succeed. But: "may I borrow your gun?" Sure.

Question: Is my lending the gun indispensable or necessary - do you mean to tell me without my gun you cannot kill him? You can kill him with another gun or with a knife. You can kill him with a bolo. Answer: So, my lending the gun is necessary, but not indispensable. That's the distinction given by some. This distinction is correct. Take note, that you are also liable nor the same crime committed by the principal. Although the penalty is a little bit lower. That's why we have discussed collective liability. You are a coprincipal in a conspiracy. The act of one is the act of all. Collective, Let us change the Facts: A and B do not know each other. There is no conspiracy. A wanted to injure X. A will pull X. B, on the other hand wanted to kill X. So they were acting separately. A saw X, he started to throw punches at X. Then afterwards, B suddenly entered and stabbed X. X died. Take note that A had not intent to kill X. He only wanted to injure him. He is principal by direct participation for the crime of physical injury serious or less serious. Then B said: "Well, in that case, I am the accomplice of A. Because when A attacked X, 1 learned of the criminal intent of A, and therefore when 1 came in and entered the fray and stabbed X, I concurred with the criminal intent of A and therefore I am an accomplice." So, A is the principal for the crime of slight physical injury B, who stabbed X, is liable as an accomplice. Now, who will be liable for the death of X? Zero? The one who stabbed the victim is only the accomplice. Something is wrong there. That kind of reasoning is wrong. How can you concur with A when A had no intention to kill? The intent to kill came from B. You cannot say that A concurred with B because he was the first to commit the crime, B only entered the scene. So there are 2 kinds. A is liable for physical injury as a principal by direct participation. B is liable for homicide. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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We will again reverse the facts. The same: A wanted to harm X. B wanted to kill X, this time, the first one who came was B. B saw X. He approached and started stabbing X. A arrived, approached X, “I’ll join you". He entered the scene and started to attack X with his first, even preventing X from running. So, X died. B is liable for homicide as a principal by direct participation. So A? “Physical injuries only, I only punched him.” No, when you saw B stabbing X you joined the fray and starting also hitting X, you concurred without any conspiracy. You concurred with the criminal intent of B to kill, and you cooperated with him with the simultaneous act of assaulting the victim. So there is only one crime. You are the principal. A is the accomplice. That is what you call quasi-collective. That is the illustration:

Liability:

Collective Quasi-collective Individual

= = =

Conspiracy Accomplice 2 Crimes, each to his own

Art. 19. Accessories. — Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1. By profiting themselves or assisting the offender to profit by the effects of the crime. 2. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery.

3. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.

Accessories are the last set of those persons criminally liable. To be liable as an accessory, the felony committed by the principal should be a LESS GRAVE or GRAVE FELONY. Even if you perform any of these acts under the definition of Art. 19, if it is a light felony you are not liable because of Art. 16. Only principals and accomplices are liable for a light felony. The premise is that the felony is not a light felony. You have to correlate this with Art. 16. The distinction between principals or accomplices, and accessories is that the principal or the accomplice participates prior to or at the latest simultaneously with the commission of the crime; whereas the accessory comes only after the crime has been committed. That is why he is known as the accessory after the fact,

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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PROBLEM: A saw X and started to stab the latter. When B arrived, he saw A stabbing X, he joined the fray holding X in order to prevent him from going away. After X died, A and B dug up a grave in order to prevent the body of the victim from being discovered. Question: Can we consider either A or B as accessories for having concealed the body of the victim under paragraph of Article 19? Answer: No, because to be an accessory you should not have participated either as a principal or accomplice. Now if A is the one who killed X, then he is already a principal. B there is already an accomplice. Hence, they' are not accessories. That is the meaning of the phrase "without having participated therein." But after A and B ask C to bury the cadaver, then C can be considered an accessory because he neither participated as principal nor accomplice. However, the accessory must have knowledge of the commission of the offense. Otherwise, if he did not know of the commission of the crime, he is not liable.

Question: How do you prove knowledge? Answer: That is circumstantial evidence. It can be proven directly or indirectly. But what is important is that he has knowledge of the commission of the crime. Question: what are the acts of an accessory? Answer: First is by "profiting by the effects of the crime". A good example of profiting by the effects of the crime is to receive a stolen property as a gift knowing it to be stolen. Like when a person robs the bank for PIM, then he gives you Pl.OOO.xx as “balato”, you become an accessory. Or, another example is you know that a certain property is stolen and you know that property is valuable. But the robber wants to dispose of it as fast as possible so he sells it to you at P1.000 even if its real worth is P10,000. So you buy it - so in effect, you profit. Even if you did not receive anything from the stolen property but you looked for a buyer in behalf of the robber, you are an accessory because you assisted the robber for the latter to profit by the effects of the crime. Question: How do we compare paragraph 1 of Article 19 with a special law known as the “Anti-Fencing Law” (PD 1612)? How do you define the word "fencing"? Answer: That is Section 2 Paragraph 2 Fencing is the act of any person who, with intent to gain for himself or for another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object, or anything of value which he knows, or would be known to him, to have been derived from the proceeds of the crime of robbery or theft. Prior to the passage of the Anti-Fencing Law, the liabilities for these acts were considered as those of accessories.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What is the penalty for the accessory? Answer: It is very much lower. But in reality according to the whereas clause of the. Marcos Decree, thieves and robbers are encouraged to steal and rob because there are people who buy. If you discourage buyers by making the penalty heavier, the robbers are discouraged. So, PD 1612 was enacted to discourage buyers who are not considered accessories but as principals.

Question: Can I be liable as-an accessory for the crime of robbery or theft, and be liable for the violation of the anti-fencing law - because there are 2 separate crimes but relying on the same facts and circumstances, so double jeopardy may be invoked. What is act of fencing? Answer: With intent to gain for yourself or for another. So, profiting or assisting the thief or robber to profit, receive, possess, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object, or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. There is no loophole. You can be arrested. But if you are an accessory, if you do not know that the thing is stolen, you are not liable. The law requires that you must know that the property is stolen. But in Anti-Fencing, not only what you know is included, but also, what should be known to you.

For example, you buy property form someone who is not the usual dealer of that item. If you that expensive property from a department store and it turned out to be stolen - and you claimed that you did not know that it is stolen... Several years ago, there was a group of minors who "specialized" in removing tires. They would sell the tires to a dealer of stolen tires. Who are the persons to be charged with fencing? The dealer. But the dealer will say: "t did not know. I thought those kids' were dealers of Firestone tires." Or somebody is offering a watch valued at PI0,000, but which is sold to you at P3,000. That is already a sign that it is probably stolen and it should have been known to you. Another important section here is that the penalty is higher than that imposed upon an accessory. SECTION 5, PD 1612. Mere possession of any goods, Article, item, or anything of value which km been the subject of robbery or thievery shall be prima facie evidence of fencing. Of course, this presumption could be rebutted - that you did not know or that it could not have known. The presumption here is that you are liable for fencing in that you have in your possession the stolen property.

Question: Is this provision constitutional considering that the Constitution presumes innocence of the accused?

Dizon-Pamintuan vs. People 234 SCRA 63

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Does the Saw have the right to create that presumption? Section 5 of PD 1612 provides that "mere possession of any goods, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing." The presumption is reasonable for no other natural and logical inference can arise from an established fact of possession of the crime of robbery or theft. This presumption does not offend the presumption of innocence of the accused enshrined in our fundamental law. In cases of statutory crimes, no constitutional provisions is violated by statute that proof by the state of some material state of fact or facts shall constitute prima facie evidence of guilt and that the burden is shifted to the accused for the purpose of showing that such act or acts are innocent and are committed without lawful intention. The second way of committing, as an accessory is by concealing or destroying the body of the crime. In Latin, corpus delicti. In the crime of homicide, how do you conceal it? By burying the corpse. Why? The reason is simple: murder or homicide, to be established to have been committed by-the accused, the prosecution must prove that the victim died. How can you prove the death of the victim if you hide the body? The evidence would, probably be that you have been seen with the victim the last time. But it docs not prove that the victim died. With that, what happens? The victim is declared a missing person because there is no evidence that he is dead. So, the most that can be done is to declare him civilly dead, but not criminally dead. The prosecution cannot file a murder or homicide case- if the proof of death is absent. You can conceal the body by burying it. Or you can destroy the corpse. Or you can conceal or destroy the effects of the crime... like the murder weapons… throw it away. You are not he killer but you assisted. Or you hide a stolen car. Here, I can be held liable as an accessory and under the anti-fencing law. So, one who conceals the effects of the crime under paragraph 2 are also liable under the Anti-Fencing law, because that is also one way of concealing stolen property under PD 1612. The third is by harboring, concealing, or assisting in the escape of the principal of the crime, provided that the accessory acts with abuse of public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime, The one concealed is not the body^-the effects of the crime, but the criminal himself. You harbor a criminal. Suppose, while I am walking in an uninhabited place, 1 saw A kill B, since there is no witness, nobody knows who is the killer. So, the wanted criminal-is unknown. But I did not report it I remained silent In effect, 1 have harbored I have assisted the criminal from escaping. That is the net effect. Am I liable as an accessory under Paragraph 3? NO, the act referred to here by the law is an active act, not a passive act. Because a passive act is an omission not covered under Article 19. You may be accused of lack of civil spirit, but you are not criminally liable as an accessory.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: How do you, become an accessory under paragraph 3? Answer: There are 2 types of persons who can be accessory: those by harboring, concealing, or assisting in the escape of the principal of the crime provided that the accessory acts with abuse of his functions. Meaning, he is in government service. For example, A commits rape or homicide. Then he tells his policeman-friend, "Pare, 1 killed somebody. Please help me." "Okay, then I will help you."

Question: is the policeman an accessory for the crime of rape? Answer: Yes. Well, there is no mention of rape under paragraph 3. It only mentions treason. Parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty for some other crime. If the accessory is a public officer, he is am accessory for any crime committed, provided, that the penalty is light. It is not limited to those enumerated the crimes specifically mentioned refers to, if the person who helps you escape is a private individual.

Question: So how do you interpret this? Answer: There are 2 persons who can commit as an accessory: «| (1) A private person; or (2) A public officer. So, base on the problem, A commits rape and he approaches his kumpare who is a private individual. Is he an accessory? He is not, because he is not one of those enumerated. PROBLEM: Suppose, the principal commits murder knowing about it, I assisted him to escape. So, there are 2 cases filed against me and against the principal. But he was at large and 1 am arrested. Question: Can I be tried and convicted without the principal being arrested and convicted? The cases before decided by the SC said no because the guilt of the accessory will depend on the guilt of the principal. The law says that whenever the principal of the crime is guilty, the accessory can be guilty. Another reason in the SC, suppose that alter the principal is found guilty of homicide and not murder, what happens to you? You're free. So, it is necessary that the principal comes first. But this reasoning has been reversed. The accessory can be tried before the principal is convicted. But how do you reconcile that with the law that he must be found guilty? What it means is that before the accessory can be convicted, the prosecution must prove that the crime was committed and that the principal who is still at large committed it. Hence, the probable of hypothetical guilt of the principal must first be proved before the accessory can be convicted. The hypothetical guilt is only used as a stepping-stone to convict the accessory. For, to mean that the principal must first be convicted would result in a miscarriage of justice. Bino vs. People 178 SCR A 626 ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Issue: can the trial of an accessory proceed without awaiting the result of the separate charge of the principal? Held: YES. The corresponding responsibilities of a principal, accomplice and accessory are distinct from each other. As long as the commission of the offense can be duly established-in evidence, the determination of the liabilities of accomplices and accessories may proceed independently of that of the principal. In connection with paragraph 3, there is a law where the language is similar to paragraph 3 but broader. That is PD1829 also known as Law Penalizing Obstruction of Justice SECTION 1, PARAGRAPH c “x x x” harboring or concealing, or facilitating the escape of any person he knows, or has reasonable ground to believe that-the suspect has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction. For example, A committed rape and asks his friend to help him escape. Is the friend an accessory under the Penal Code? The answer is NO, because there is no mention of rape, Can the friend be liable under PD 1829? YES, because the law says; "xxx any offense under existing penal laws", Similar to AntiFencing Act, you are not an accessory but a principal for obstruction of justice. Question: Suppose, the crime is drug pushing, are you an accessory under the RPC? Answer: No. but, under PD 1829, you can still be liable. This is the interesting Question: you commit a felony... a slight physical injury. I am a policeman and I concealed you. So, the public officer exceeded his function. Question: Is the policeman liable as an accessory under RPC? Answer: NO, because it is only a light felony. But is liable under PD 1829? YES, because it docs "not distinguish. It states "any offense". What is worse is the penalty for the principal is arresto menor but under PD 1829, prison correctional... So, 6 years. Am I saying that is the answer? I do not say that is the answer, but that seems to be the answer.

Art. 20. Accessories who are exempt from criminal liability. — The penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of paragraph 1 of the next preceding article.

What is contemplated by the law is that the principal and the accessory are relate? It is natural that relatives protect each other. Hence, the law understands that. So, the relative who conceals the body or effects of the crime or conceals the criminal who is a relative is exempted form criminal liability by reason of public policy.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Note: This is an exempting circumstance. Exception is an accessory under paragraph 1 who profits or assists the offender to profit by the effects of the crime." In that situation, you have not desired to make the family clean, you have also tainted the family's name.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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TITLE THREE PENALTIES Chapter One PENALTIES IN GENERAL

Art. 21. Penalties that may be imposed. — No felony shall be punishable by any penalty not prescribed by law prior to its commission.

Whether you like it or not, the study of penalties is part of the RFC, liven in the definition of the course, it is a branch or division of law which defines crimes, treats of their nature and provides for their punishment. So, what is the use of defining crime without any penalty? For example, under the Penal Code, if you kill somebody with treachery, you commit murder. So, what happens to you? With intent to kill, you stabbed somebody, then he died. When you attacked him, you did not give him a chance to defend himself—admitted. That the mode of attack was blunt-, again, admitted. So, you are guilty of murder—still admitted. What about it? There is no penalty, anyway. That is why the law on penalties is .unavoidable. Question: How do you define penalty? Answer: Penalty is the suffering that is inflicted by the State for the violation or transgression of a law. Penalty signifies pain. It is something that you do not relish because if penalty is something enjoyable, then everybody would be encouraged to commit a crime. Question: What are the juridical conditions of penalty under the Classical Theory of Criminal Law? Answer: These are not part of the article, but these are the philosophical background behind the penalty. The different juridical conditions of penalty are the following: 1.

Must be productive of suffering, without however affecting the integrity of the human personality. (Suffering: if you suffer, your dignity as human being should also not be impaired. That's why the constitution prohibits unusual punishment, because they are degrading.)

2.

Must be commensurate with the offense—-different crimes must be punished with different penalties. {Commensurate: That is one of the characteristics of the Classical theory. A grave felony deserves a higher penalty. A less grave felony or light felony deserves a lesser penalty. There must he a proportion. It is absurd when the penalty for murder and the penalty Jar slight physical injuries are the same. There is something wrong. It is inequitable; it is unfair.)

3.

Must be personal - No one shall be punished for the crime of another.

4.

(The criminal liability (personal penalty), once the convict dies, is totally, extinguished. You do not say, he has a son, he will continue the penalty under the law on Succession.)

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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5.

Must be legal. No one should be punished for the crime of another. (Nullum crimen, sine lege. If there is no law, there is no penalty.)

6.

Must be certain. No one may escape its effects,( That is a theory. No one may escape its effects, theoretically. That is being required by the law. The law should be fair, whether you are rich or poor. Only, men have, prostituted the law. Bui the law itself is supposed to be certain and equal.)

7.

Must be equal for all; and

8.

Must be correctional. (That purpose is correctional—to correct you so that you will not repeat it.)

Question: What is the purpose of the State in punishing crimes'? Answer: To secure justice. The State has an existence of its own to maintain a conscience of its own to assert, and moral principles to be vindicated. Penal justice must therefore be exercised by the State in the service and satisfaction of a duty, and rests primarily on the moral rightfulness of the punishment inflicted.

THEORIES JUSTIFYING PENALTY: a. b. c. d. e.

Prevention - The State must permit the criminal to prevent or suppress the danger of the State rising from the criminal acts of the offender. Self-defense—The State has a right to punish the criminal as a measure of self-defense so as to protect a society from the threat and wrong inflicted by the criminal. Reformation- the object of punishment in criminal cases is to correct and reform the offender. Exemplarity-- The crime must be punished to serve as an example to deter others from committing crimes. Justice- The criminal is punished to serve by the State as an act of retributive justice, a vindication of absolute right and moral law violated by the criminal.

Social defense and exemplarity justify the penalty of death. When a person has proved himself to be a dangerous enemy of society, the latter must protect it from such enemy by taking his life in retribution for his offense and as an example and warning to others.

Penalties under the RPC have three-fold purpose: 1. 2. 3.

Retribution or expiation - The penalty is commensurate with the gravity of the offense, Correction or reformation As shown by the rules which regulate the execution of the penalties consisting in deprivation of liberty. Social defense - As shown by its inflexible severity to recidivists and habitual delinquents.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 22. Retroactive effect of penal laws. — Penal Laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

Question: We will give a penal law retroactive effect if it is favorable to the accused. Even if the accused is already serving sentence? Answer: Yes, it will benefit him in whatever stage he is found, whether before the trial or during the trial.

Question: What is the reason why a favorable statute may be given retroactive effect? Answer: The reason: to be consistent with public policy, if Congress changes the law, let us say, by lowering the penalty or eliminating the crime, the crime has already been eliminated because the act, criminal before is no longer a crime now, then it could be inconsistent for the State to still insist on the continued punishment or prosecution of a person. There might have been already a supervening case of policy. So, to maintain consistency why do we insist that these people be still prosecuted when there is already a change in the policy of the State. That is the reason behind that.

That's why even if he is in jail, the question is: 1 low do you have a person released from jail when there is already a final judgment? The remedy is habeas corpus, because the moment the new law repealed the old law or the new Ian imposed a lower penalty and you have already -gone beyond it, the excess, the penalty, or the confinement automatically becomesillegal. That has teen applied recently by the SC in the case of Ordonez vs. Vinarao, a1994 decision. People, who were convicted before the drug pushing, under the law- under the aid law, the penalty for drug pushing was life imprisonment, liven if you arc caught pushing one stick of marijuana, life imprisonment. You sell one truckload of marijuana, life imprisonment. If you are caught selling one or two sticks, life imprisonment But RA 7659 has changed the policy, now it's by gram. For marijuana, it is 750 grams or more, possession or pushing, the penalty is reclusion perpetua to death. From 1 gram to 749 grams, by stages. So, in effect, if you are a small time pusher the penalty under the new law is lower. Now, this is the new law, so it benefits those who were convicted under the old law, those sentenced to life imprisonment. There was a pusher convicted in 1986, life imprisonment. In 1994, he has already been in jail for 8 years and still has a Song time to go because of life imprisonment. 1 le said: **lfj were prosecuted under the new law, 6 years should have been the maximum, prision correctional. I have been in jail for 8 years now. What should I do? The OR through its Chairman Sedfery Ordonez filed a petition for habeas corpus for him, because the law should be given retroactive effect ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The SC said: Yes, applying Article 22 of the RFC. They have been in jail for eight years; release them. They should be ordered released. The habeas corpus proceeding decided on December 1994. As a matter of fact, the SC ordered in that case of Ordonez vs. Vinarao, the Director of Prisons to submit to this Court a list of all prisoners there who were convicted under the old law. The SC ordered their release because it was beyond the maximum term under the law. It is a perfect example of retroactivity of a new law.

Question: Is there an exception? Answer: The law is very clear:  You will not benefit if you are classified as a habitual delinquent under Article 62.  It will not be given retroactive effect if the law makes itself inapplicable to pending suits.

Art. 23. Effect of pardon by the offended party. — A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver.

The offended party cannot pardon, because the offense is not against you It is against the People of the Philippines and technically you are only a witness for the society. So, you cannot " talk" of society. That is the reason behind that: If you ask: How come, in practice, there are may cases dismissed because of the Affidavit of Desistance, where the witness does not want to testify? That is what is happening in practice. Well, actually there, the fiscal may file a motion - not because of pardon. Because if the fiscal will state in his motion: We move to dismiss because the accused has already been pardoned by the offended party. If I will be the judge, I will deny your motion because you are violating Article 23. Pardon by the offended party is a mere agreement. Usually the fiscal will state in his motion: With the hostility of the principal witness, I can no longer prove this case beyond reasonable, doubt. How can I prove this case if no one will testify? The prosecution's witness turned hostile, who is the offended party. So, the judge will dismiss the case for insufficiency of evidence. Well, in reality in the motion it is not a ground Under the Rules on Criminal Procedure, if the prosecution witness is hostile; the fiscal can move for his arrest and place him in jail until he cooperates. The reason is you are not a witness for yourself; you are a witness for the People. How come this is happening everyday? Because nobody is complaining. If you are the accused will you complain? You are happy because there is no more case. If you are the offended party or victim, will you be satisfied? Of course, because the civil liability has been paid. It is too much hassle to go to and fro in court. If you are the defense lawyer, you are happy because the case is over. You are given your attorney's fees. The fiscal is ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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happy because that in one work less. The judge is happy because that is minus one case. Because everybody is happy, nobody will complain. But actually, they escape Article 23. They cannot cite pardon. What is extinguished is the civil liability. That is within your control—condonation or remission of the debt, one of the modes of extinguishing civil obligation. The only instance under the Penal Code, where pardon by the offended party produces certain effects. ARTICLE 344(3), RFC, - The offenses of .seduction, rape, acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. These are private crimes, which cannot be prosecuted de oficio. If the victim refuses to testify, yon have to honor the spirit because of the ruling Unit; If you are a victim of rape, etc, that is something personal you may prefer to suffer in silence rather than go through the scandal of n public trial. Pardon here is a bar to criminal liability. Meaning, it is an obstacle to the case proceeding in court. So, it must be made before the institution of the action. So, what happened when the case of rape was already filed in court and, in the middle of the trial, the victim will say: I don't want to do this anymore! Can her pardon be given effect? No more, because the criminal action has already been instituted and it is no longer within her control. Because when you say pardon is a bar, it means it is an obstacle to the tiling of the criminal case. Once the ease is tiled, pardon is useless. What extinguishes criminal liability where the case is instituted is marriage between the offender and the offended party. That is one of the modes of extinguishing criminal inability trader Art.89 (7). By marriage of the offended woman, as provided in Article 344 of this Code. Notice, under Article 89, what are the modes of extinguishing criminal liability? There is no mention of pardon. What is mentioned there is marriage between the offender and the offended party, The only pardon mentioned there is absolute pardon by the President under Art.89(4) and not pardon by the offended party.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 24. Measures of prevention or safety which are nor considered penalties. — The following shall not be considered as penalties: 1. The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. 2. The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein. 3. Suspension from the employment of public office during the trial or in order to institute proceedings. 4. Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates. 5. Deprivation of rights and the reparations which the civil laws may establish in penal form.

Question: what are the conditions of penalty under the classical theory in criminal law? Answer: To commensurate the offense, rational. One of the characteristics is that it should be legal. Penalties should be legal. Meaning, it is a penalty provided for by law and imposed by the court. Article 24 enumerates certain acts where there appears to be a penalty because penalty could mean pecuniary penalty like a fine. Incarceration, your liberty is taken from you like imprisonment. And if you look at Article 24, it seems to fit a penalty but the trouble is that there is no judgment of conviction. The court has never ordered you to pay a fine or has never ordered your incarceration. So, it appears to be a penalty in the eyes of the penal code. Why? It is only a measure of prevention or safety. You are not being penalized. It is a measure of prevention or safety for you. So, if you undergo any of these, you come out, we cannot say you are an ex-convict because you have never been penalized. Unlike a person who is sentenced to jail, he served the sentence. When he goes out from the jail, ex-convict. But if you go to article 24, you are not a convict because it is not a penalty. If the person is insane, he is killing people, what shall we do? Well, he could be ordered arrested and confined at a mental hospital. Put him in the isolation ward. He is like being in prison. He is placed there like a sentenced criminal. How can he be liable? He is even exempt from criminal liability for being insane. What is the confinement for? That is only a measure of prevention or safety. Because if he will be allowed to walk around, he might kill more people. So, he is not really being penalized. [Article 24 (2)] Article 80 has already been taken over by PD 603. This refers to suspended sentence of minors. He asks for suspended sentence. He is committed to a rehabilitation center. So, it is as if he is imprisoned. No, that is not the measure of prevention or safety. How can he be penalized when practically there is a suspension of the sentence? So, it is not considered as penalty. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Article 24 (3)

Actually suspension form employment or public office is a type of penalty under the RPC for certain crimes. Once you are found guilty, you are suspended from holding public office. That is the penalty but the suspension referred here is not a penalty because you have not been convicted.

Like for Example How come that under the Anti Graft Act, if you are a public officer facing a crime, under the law, the Sandiganbayan will order you suspended for 90 days even a policeman facing a criminal case'' He will be suspended. Arc thev already adjudged as guilty? Are they being penalized? No. They are still presumed innocent. What is that suspension? that is a measure of prevention or safety. So that you will not use your position to influence witnesses for or against you. So that is not a penalty, but only a measure. So you cannot say that you are already being convicted. And if you are acquitted, the government will pay you. Everything will be paid to you during the period of your suspension while the case is going on,



Article 24,(4)

Fine is a penalty under the Penal Code. Also other corrective measures are considered penalties under the Penal Code. But under the Civil Service Act, the CSC can also impose a fine in administrative cases involving those of the government service. And the head of office, the superior office of the government authorized to hand down penalties like lines, suspension, etc. So, that is not a criminal fine. That is only an administrative line. You are not considered a convicted person by being found liable under the Civil Service act.



Article 24,(5)

Deprivation of rights which the law may establish in penal form. Penalty could be deprivation of civil rights -the right to vote, etc. Now, if you are not careful, you will think of other things. If you ask somebody: Give an example of deprivation of rights under the penal code'' He might be tempted to say; Actually the example, the penalty you can give there is the penalty of civil interdiction.

Civil interdiction is a measure of prevention or safety which is not a penalty. You are wrong civil interdiction is a penalty under the RPC. You look at the next article, Article 25. You look at the accessory penalties.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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ARTICLE 25 - Penalties which may be imposed —The penalties which may be imposed, according to this code, and their different classes, are those included in the following: xxx ACCESSORY PENALTIES Perpetual or temporary disqualification Perpetual or temporary special disqualification Suspension from public office, the right to vote and be voted for, the profession or calling CIVIL INTERDICTION Indemnification Forfeiture or confiscation of instruments and proceeds of the offense Payment of costs.

Civil interdiction is included. Civil interdiction is not a civil taw penalty! It is a criminal penalty. You will not be under civil interdiction unless you are found guilty of a crime.

Question: What is meant by Art.24(5)? Answer: Deprivation of rights and separation, winch ihe civil law may establish in penal form? It means that in a civil case you arc deprived of a right by the court, whose the right deprived similar to that of someone who is under civil interdiction Similar to civil interdiction, but not civil interdiction. So, civil interdiction is not a civil law issue because of the word " civil" is there. Civil interdiction is criminal penalty.

Example: Under Art. 34 of the RPC, one of the effects of civil interdiction if you are found guilty, you will be placed under civil interdiction) is you arc deprived of your parental authority over your children. Now, suppose it is a civil case where a father or a mother maltreats or abuses his or her own child. So. a case is filed in court against the parent and the court says For maltreating or abusing your own child the court will deprive yon of your parental authority and transfer it to the grandfather of the child. The loss of parental authority is similar to being sentenced to a civil interdiction. You were not sentenced to civil interdiction, but sentenced to that penalty in the civil case, it is not considered as a criminal penalty but a civil penalty analogous to civil interdiction. That is what a par.5 of Art 24 means. It does not refer to the penalty of civil interdiction but to a penalty imposed by the court in a civil case which is analogous to civil interdiction.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Chapter two CLASSIFICATION OF PENALTIES

Art. 25. Penalties which may be imposed. — The penalties which may be imposed according to this Code, and their different classes, are those included in the following: Capital Punishment: Death Afflictive Penalties: Reclusion perpetua Reclusion Temporal Perpetual or temporary absolute disqualification Perpetual or temporary special disqualification Prision mayor Correctional Penalties: Prision Correctional Arresto Mayor Suspension Destierro Light Penalties: Arresto menor Public censure

All the penalties known under the Penal Code are found in Art. 25. Art. 25 classifies penalties into two main classes:

1. the Principal penalties; and 2. the Accessory penalties.

Question: Define principal penalty or define accessory penalty. Answer: Do not say that the principal penalty is for the principal by direct participation, that accessory penalty is the penalty for the accessory and I wonder what happened to the accomplice penalty. The words "accessory" here and "principal" have nothing to do with persons criminally liable If has nothing to do with principals by direct participation or accessories under Art. 19 of the RPC. The definition of the principal penalty is: A principal penalty is the penalty imposed by the court expressly in a judgment of conviction. An accessory penalty is a penalty which is deemed imposed in the principal if not mentioned in the decision. Another definition is accessory penalty is a penalty which is deemed included in the imposition of the principal penalties.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The accessory follows the principal. I will say: "You are hereby sentenced to 14 years of reclusion temporal." What type of penalty is this? Principal? "You are hereby sentenced to death. " The death penalty is the principal.

Question: The court said: "You are hereby sentenced to 20years of reclusion temporal (only and never mentioned anything). During the 20 years, am I entitled to vote? Am I entitled to hold public office? Can I exercise parental authority over my children? Answer: I cannot. Why? Because if you are sentenced to 20 years of reclusion temporal, you are also suffering from suspension, disqualification, and civil interdiction. And you cannot say: We, the court never said that. The court should have said: You are hereby sentenced to 20 wars of reclusion temporal plus civil interdiction, etc. there is no mention. There is no need because it is deemed imposed. No need to mention it. It is deemed included.

The definition of accessory is deemed imposed even if not mentioned

Question: What penalties are principal and at the same time accessory? Answer: 1. Suspension 2. Perpetual or temporary absolute disqualification; and 3. Perpetual or temporary special disqualification

Question: How can a penalty be a principal and at the same time accessory? How can it be expressly imposed and at the same time deemed imposed? Answer: What it means to say is, for some crimes, disqualification or suspension is the principal penalty because that is the penalty prescribed by the law. But for other crimes it is not the principal penalty but only accessory. So, it depends on the crime. Question: Are there other disqualifications of penalties under the Penal Code aside from principal and accessory? Answer: You can give other classifications, although not found in the law expressly. Another classification is whether indivisible or divisible. Question: What do you mean by indivisible? By divisible? Answer: Penalty is indivisible if it has no fixed duration. A divisible penalty is penalty which has a fixed duration and is divisible into 3 parts known as minimum period, medium period and maximum period A perfect example of an indivisible penalty is the death penalty (capital punishment). You are hereby sentenced to death. The court will not .say: You are hereby sentenced to death for 10 years. So, that is a good example. Perpetual disqualification is considered indivisible.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Now, divisible, practically the majority arresto menor ~ I day to 30 days. So not less than 1. not more than 30. Divisible into 3 parts: I to 10 days; 11 to 20 days; 21 to 30 days. So, that is another classification, indivisible and divisible. Another classification based on the nature of the penalty is... you know penalties have many classes. There is deprivation of rights, there is fine or payment of costs, there is imprisonment. So, penalty does not necessarily mean that you will go to jail. The penalty of fine, there is no imprisonment here Bui you can also forfeit your life like death So, penalties could be classified into many pans.

Classification of penalties according to subject matter: 1. corporal (death); 2. deprivation of freedom (reclusion perpetua and temporal, prison mayor and 3. correctional, arresto mayor and menor); 4. restriction of freedom (destierro) 5. deprivation of rights (perpetual or temporary disqualification, suspension, 6. civil interdiction pecuniary (line, hand to keep the peace)

Classification of penalties according to gravity: 1. Capital; 2. Afflictive; 3. Correctional; and 4. Light

Question: What are the afflictive penalties? Answer: You go to Art. 25, the afflictive penalties • Reclusion perpetua • Rectusion temporal • Perpetual or temporary absolute disqualification • Perpetual 01 temporary special disqualification • Prison mayor Question: What is a less grave felony under Art. 9? Answer: One which carries correctional penalties. Less grave felonies are those which the law punishes with penalties which in their maximum period are correctional, in accordance with the above-mentioned article (Art 25)

Question: What are correctional penalties? Answer: Prison correccional, arresto mayor, suspension, destierro. So, if that’s the penalty, it is correctional. Question: Light? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: Arresto menor and public censure. Question: What is a fine? Where does it fall? Answer: It means that fine could be afflictive; it could be correctional; it could be light So, it is common. Art. 26. When afflictive, correctional, or light penalty. — A fine, whether imposed as a single of as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it less than 200 pesos.

That is how you classify fine. You look at the law, what kind of penalty is that? Fine of P20,000.00 afflictive, if it is ranging from P200 P6.000 it is considered correctional penalty which is less than P200. Fine P50 - it must be a light penalty.

Question: What is a light felony'" Go back to Art. 9, what is the definition of a light felony? Answer: Light felonies are those infractions of law for the commission of which a penalty of arresto menor or a fine not exceeding 200 pesos or both is provided. Fine not exceeding P200 pesos. So, if the line is exactly P200, light. But in Art 26, if a fine is exactly P200, it is correctional.

Question: How do we reconcile this? Answer: There is no problem if the line is P1999 pesos or lower. It is light under Art. 9, it is light under Art. 26. But if you add one peso, there comes the problem, because it is light under Art. 9, but it is no longer light under Art. 26. Question: is there a conflict between the two articles, or there is none? if there is a conflict, reconcilable conflict, which of the two will we follow ? Answer: Art 9 is a classification of felonies. Art. 26 is a classification of penalties I low can there be a conflict? There is no conflict because the two articles talk of different things

PROBLEM: Suppose after trial, the court sentenced him of a maximum fine of P200. Is the penalty light or not? In this case, it is not a light penalty but correctional Question: But is the felony light? Answer: Yes, the felony is light although the penalty is correctional. So, you know which is applicable depending upon the issue asked. Question: Is there a legal significance of the difference?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: I will now show the significance of the difference. A is accused of slight physical injuries which Carries the penalty of arresto menor or a fine not exceeding P200. Under the law on prescription of crime, what is the prescriptive period for the crime? Under the law, Art 90, what is the prescriptive period for the light felony? Art. 90, last paragraph.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Light offenses prescribe in two months

PROBLEM: The court upon conviction, sentenced him to pay a tine of P50 with subsidiary imprisonment in case of insolvency. Here he does not want to go to jail, he also does not want to pay the fine He wants to evade the penalty. Question: What is the prescriptive period for him n-> evade penalty? Answer: If the fine is P199, so the penalty is light Art. 92, light penalties prescribe in 1 year, so, you have to hide for I year Suppose after trial, the court sentenced him to pay not PI99 but P200. The court, add P1 for maximum, with subsidiary imprisonment in case of insolvency. He does not want to pay the fine; he does not also want to serve the subsidiary imprisonment.

Question: Is the prescriptive period for the crime only 1 year? Answer: No Why? Because the penalty is no longer light. What is the penalty? Correctional under Art, 92, correctional penalties prescribe in 10 years (with the exception of the penalty of arresto mayor, which prescribes in 5 years). There is a big difference. Correctional penalties prescribe in 10 years. That is the effect of that P1, You can see the effect in the prescriptive period.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Chapter Three DURATION AND EFFECT OF PENALTIES Section One – Duration of Penalties

Art. 27. Reclusion perpetua. — Any person sentenced to any of the perpetual penalties shall be pardoned after undergoing the penalty for thirty years, unless such person by reason of his conduct or some other serious cause shall be considered by the Chief Executive as unworthy of pardon. Reclusion temporal. — The penalty of reclusion temporal shall be from twelve years and one day to twenty years. Prision mayor and temporary disqualification. — The duration of the penalties of prision mayor and temporary disqualification shall be from six years and one day to twelve years, except when the penalty of disqualification is imposed as an accessory penalty, in which case its duration shall be that of the principal penalty. Prision correccional, suspension, and destierro. — The duration of the penalties of prision correccional, suspension and destierro shall be from six months and one day to six years, except when suspension is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty. Arresto mayor. — The duration of the penalty of arresto mayor shall be from one month and one day to six months. Arresto menor. — The duration of the penalty of arresto menor shall be from one day to thirty days. Bond to keep the peace. — The bond to keep the peace shall be required to cover such period of time as the court may determine.

The first important amendments introduced by the Heinous Crimes Law, RA 7659, is he amendment of the first paragraph of Art 27 which (radicalized the penalty of reclusion perpetua. The law says: The penalty of reclusion perpetua shall be from 20 years and one day to 40 years. This is now the new law. Before the amendment, if the person is sentenced to reclusion perpetua, he shall be introduced after 30 years unless the President does not consider him worthy of pardon. Therefore, there is really no duration. The President may or may not pardon him after 30 years. But now. the law says: "20 years and 1 day to 40 years". Meaning, continuation na ng reclusion temporal because reclusion temporal is 12 years and 1 day to 20 years. And therefore because of the amendment, the question is asked: Question: What kind of penalty is reclusion perpetua? Is it divisible or an indivisible penalty? Answer: There is no question what it is prior to the amendment. Prior to amendment, the rule on reclusion perpetua was that it was an indivisible penalty. It had no fixed duration. What the law, provided was that ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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you shall be pardoned alter 30 years unless the President does not consider you worthy of pardon. So you may be pardoned after 30 years, 31, 35, etc, -because there is no duration. But now, with that 20 years and 1 day, is it now a divisible penalty with a fixed duration of 20 years and 1day but not more than 40 years?

PEOPLE vs. LUCAS 253 SCRA 537 The amendment of RA 7659 has converted the penalty of reclusion perpetua into a divisible penalty with a fixed minimum and fixed maximum 20 years and I day to 40 years, Therefore, it is a divisible penalty divisible into 3 parts minimum period, medium and Maximum 20 years and 1 day to 40 years. However, there was a Motion for Reconsideration filed before the First Division if you claim now that because of the amendment reclusion perpetua is converted into a division penalty, then what happens to this article? Many got confused with it. But they decided to resolve the issue en blanc. So, the SC had to review the original ruling in the First Division and Armed at a certain decision decided after 8 months on January 5, 1995. (People vs. Lucas, 240SCRA 66). The ponente was still Justice Davide Jr. Do not confuse the Lucas decision found in 232 SCRA with the Lucas decision found in 24081 SCRA. The one in 232 SCRA was the original decision. The one in the 240 SCRA was the resolution of the Motion for Reconsideration where the SC changed its stand. In the second one, the SC ruled that despite the fact that stated now in the law, that reclusion perpetua is from 20 years and I day to 40 years however, the amendment has not made it a di\ isible penalty, it is still an indivisible penalty

Reclusion perpetua, despite the amendments, remains to be an INDIVISIBLE penalty

Because the SC connected it with Art 63 {Rules for (the application of indivisible penalties) of the RPC, Art. 76(legal period of duration of divisible penalties). Art, 41 (Reclusion perpetua and reclusion temporal), and Art. 61 (Rules on graduating penalties).The SC noted that all these articles are related which were not touched by the amendments. Therefore, if you will say the amendment of Art. 27 had converted reclusion perpetua into a divisible penalty, it will cause confusion and render nugatory the articles of the Penal Code to avoid that, the SC said it is still an indivisible penalty So with that, because of the ease of Lucas, the original decision, the SC sentenced the accused to a specific term of 34 years, 6 months, which obviously was wrong' The SC admitted. When you sentence a person with perpetua, the judge says: "You are hereby sentenced to reclusion perpetua" Do not say any number of years, months or days. It means to say you may be pardoned after 20 years and 1 day or after 20 years and 2 days. Meaning, you wait for your pardon. If no pardon is given, after 40 years you are a free man. Do not state any specific number of years or months. Take note that it is a common error by all courts throughout the country in equating the penalty of reclusion perpetua with the penalty of life imprisonment. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Distinguish reclusion perpetua from life imprisonment? RECLUSION PERPETUA Imprisonment ranging from 20 years and 1 day to 40 years within which the president may pardon me. Carries accessory penalties under the penal code Involves heinous crimes penalize under the RPC.

LIFE IMPRISONMENT Whereas, life imprisonment has no definite duration. You cannot know if you may be pardoned after 20 or 25 years. It is really for life Does not carry accessory penalty The penalty for crimes not under the RPC but under the special laws.

The perfect example of that life imprisonment is that of illegal recruitment under the Code. You look at the Labor Code - the penalty is life imprisonment. It is not reclusion perpetua. The SC has been very emphatic on the difference. There are many things that are mentioned in the new cases The Dangerous Drugs Act, although a special law, borrowed the penalty of reciusion perpetua from the Revised Penal Code.

PEOPLE vs. DEJELLOS 205 SCRA 546 The trial court imposed the penalty of reclusion perpetua or life imprisonment. "You are hereby sentence to reclusion perpetua or life imprisonment. Evidently, he considered the latter as the English translation of the former. That is not the case. The two arc different. Perpetua is riot the same as life imprisonment. Every judge should take note of (his distinction. And the SC speaks "Henceforth, no trial judge should mislead one for the oilier.

PEOPLE vs. SAM I LLANO The Court is cognizant of the practice of the Iowa court equating the penalty of reclusion perpetua with life imprisonment. Such an erroneous practice must be curtailed. It is an off-repeated rule that a judgment tor conviction of a felony the court must specify the appropriate name of the penalty inasmuch as under die specific felony in the RPC, (he principal penalty for a felony has Ms own specific duration and corresponding accessory penalties. The proper penalty winch should have been imposed is reclusion perpetua. There is no penalty of life imprisonment in the scheme of penalties under the RPC.

PEOPLE vs. ADRI 266 SCRA 131 The Court takes this opportunity to catch the attention of the trial judges in the use of the proper term in imposing penalties. The term 'reclusion perpetua" is not synonymous with life imprisonment, which is a penalty imposed by special laws This Court has, through

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Administrative Circular No. 68-92, reminded judges to strictly follow the correct application of the penalties of reclusion perpetua and life imprisonment for offenses punishable under the Penal Code and special laws, respectively, future lapses on the part of the trial judges on this matter will merit proper administrative sanctions.

PEOPLE vs. LUCERO Facts: Here the judge said a different term He sentenced somebody in an illegal recruitment case, "You are hereby sentenced to imprisonment for life". The penalty under the law is life imprisonment. He said "imprisonment for life". Held: The penalty meted out as imprisonment for life the trial court has no business putting as penalty what it seems its equivalent of the mandated penalty. Imprisonment for life is not the same as life imprisonment. For one thing the proper penalty is life imprisonment. And certainly, the imprisonment is that he will stay in prison all the rest of his natural life. The proper penalty is life imprisonment These judges don't know their law. They do not understand that the penalty of life imprisonment means a different thing.

Art. 28. Computation of penalties. — If the offender shall be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final. If the offender be not in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. The duration of the other penalties shall be computed only from the day on which the defendant commences to serve his sentence.

Art. 29. Period of preventive imprisonment deducted from term of imprisonment. — Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases:

and

1. When they are recidivists or have been convicted previously twice or more times of any crime;

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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2. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988).

Question: Define preventive imprisonment? Answer: Preventive suspension is the imprisonment being undergone by a person who has been accused of a crime but not yet found guilty, lie has to be in jail because he is facing a criminal case, and there was a warrant for his arrest. Why is he in jail? Because of 2 possible reasons: Either the offense is non-bailable or it may be bailable but he cannot put up the required bail bond So he has to be (here while the case is on going What do you call that prisoner',' A detention prisoner, as distinguished from those convicted prisoners by final judgment If for example, they are detention prisoners, they have undergone imprisonment already, and later on they are convicted by a certain prison term. The period of preventive imprisonment that he has undergone will already be computed or 4/5, depending on whether the prisoner was bound by same rules for convicted prisoners. So credited although there are some instances where there is no credit at all. There is no problem if the prisoner will be convicted. At least, the service of sentence is counted. Sometimes there are even instances when upon conviction you have already served the sentence because the sentence imposed by the court is equal or even lower. So by the time he was convicted, he has served already. That is possible. But what is painful is if you have undergone preventive imprisonment and after a while you are acquitted All the while, you are innocent And the question is what will happen to mat? What is the recourse of the prisoner? Before, the answer there was, "Sorry, charge it to experience". But now, we have an answer to that because there is a new law, RA 7309. An Act Creating a Board of Claims under the Department of Justice for Victims of Unjust Imprisonment or Detention, Victims of Violent Crime and other purposes So, for example, you are imprisoned you’re acquitted. It turns out that you never have committed any crime. You are completely innocent. You file a claim with the Department of Justice because they will give something in return. For victims of unjust imprisonment or detention the compensation shall be based on the number of months of imprisonment or detention and a fraction thereof shall be considered as one ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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month. But in no case shall compensation exceed P1,000 00 per month That is the maximum So, if you are imprisoned for 10 months, at least the DOJ will say, "O, here's your P10,000.00 that is the maximum"

BASBACIO vs. OFFICE OF THE SECRETARY 238 SCRA 5 Facts: The accused was found guilty. He was undergoing imprisonment, Then, he appealed On appeal, his conviction was reversed. He was acquitted on the ground of reasonable doubt. Upon his release, he filed for compensation. The DOJ said; "You are not unjustly accused, convicted and imprisoned". He said, "when the court acquitted me, automatically it means that I was unjustly accused, convicted and imprisoned". So, based on this argument, every person who is acquitted will automatically be paid Held: Sec. 3-A of the law requires that the claimant was unjustly accused, convicted and imprisoned. The fact that the previous convection is reversed, and the accused is acquitted is not in itself proof that the previous conviction is unjust. Not every person who is acquitted automatically proves that die conviction is unjust. To say that the accused has been unjustly convicted has to so with the matter of his conviction rather than his innocence it is not an issue whether you are innocent. No, that is not the issue. The issue here is: How were you convicted'.' Was the judge unfair to you? Were your rights violated? That's what unjust means If an accused he on appeal acquitted because he did not commit the crime but does not necessarily mean that be is entitled to compensation for having been a victim of unjust conviction. If the conviction is due to an error in the appreciation of evidence, the conviction while erroneous is not unjust. That is why it is not correct to say that under the law the liability of compensation depends entirely on the innocence of the accused. How do you say that you are unjustly convicted? Meaning, the conviction is unjust. It is tantamount to say that the judge committed a crime of rendering an unjust judgment under the penal code, which is one of the hardest crimes to prove. The judgment could be wrong, but not necessarily unjust How do you prove that the judge knowingly rendered an unjust judgment? In this case, the SC interpreted the scope of the State's liability under RA 7309 which provides compensation for persons who are unjustly accused convicted and imprisoned but on appeal, acquitted from liabilities.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Section Two. — Effects of the penalties according to their respective nature

Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. — The penalties of perpetual or temporary absolute disqualification for public office shall produce the following effects: 1. The deprivation of the public offices and employments which the offender may have held even if conferred by popular election. 2. The deprivation of the right to vote in any election for any popular office or to be elected to such office.

rights

3. The disqualification for the offices or public employments and for the exercise of any of the mentioned.

In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall last during the term of the sentence. 4. The loss of all rights to retirement pay or other pension for any office formerly held.

Art. 31. Effect of the penalties of perpetual or temporary special disqualification. — The penalties of perpetual or temporal special disqualification for public office, profession or calling shall produce the following effects: 1. The deprivation of the office, employment, profession or calling affected; 2. The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification.

Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. — The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage. — The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension.

Art. 34. Civil interdiction. — Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.

Art. 35. Effects of bond to keep the peace. — It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented, and that in case such offense be committed they will pay the amount determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking. The court shall determine, according to its discretion, the period of duration of the bond. Should the person sentenced fail to give the bond as required he shall be detained for a period which shall in no case exceed six months, is he shall have been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light felony.

Article 30-35 of the RPC tells us the effects of various types of penalties particular!) those where you are deprived of your rights. Question: What are the penalties which can deprive rights? Answer: 1. Perpetual or temporary absolute disqualification; 2. Perpetual or temporary absolute disqualifies; 3. Suspension; 4. Civil interdiction. There is a restriction on your capacity to act under the civil law. Question: What are the effects of civil interdiction? Answer: Article 34. That's why civil interdiction is not a civil law issue. It is a criminal law issue It is a penalty under the Penal Code although accessory. When a person is sentenced to a certain principal ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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penalty, practically, he is under civil interdiction. What are the effects or state the effects of civil interdiction. How can you answer that if you do not know Article 34.

For example, a father loses parental authority over his children, although the mother is already gone. If he is a guardian over anybody or over person or of property, the guardianship is automatically removed, they cannot manage the community of property, conjugal or absolute. So, the wife, for example, has the sole power of administration. He cannot even manage his own property. Somebody must manage it. And he cannot convey any property inter vivos. Inter vivos means to take effect during your lifetime. So, you cannot sell your property. The sale is defective. You cannot donate. You cannot enter into a contract because you cannot convey your property inter vivos. Suppose, a convict during his civil interdiction prepared a last will and testament where he said After my death, this property goes to A, that property goes to H Is there a valid will and a valid disposition considering (lie fact that he is under civil interdiction'' Will the civil interdiction invalidate the disposition7 No. Because the disposition is not inter vivos but mortis causa. So any convict under civil interdiction validly execute a last will and testament? Yes. because that is not covered by Article 34.

Art. 36. Pardon; its effect. — A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence.

Question: How do you distinguish Article 36 from Article 23 which reads. "Effects of pardon by the offended party. A pardon by the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver. " Answer: Article 23 talks of pardon by the offended party, or pardon by the victim; whereas. Article 36 talks of pardon by the President. What extinguishes criminal liability is Article 36, pardon by the President in relation to Article 89 on the modes of extinguishing criminal liability. Although Article 36 is very clear, pardon by the President docs not extinguish civil aspect So, the basic distinction is: Pardon by the offended party extinguishes the CIVIL liability but NOT the criminal liability, while the pardon by the President extinguishes the CRIMINAL but not the civil liability. PROBLEM: Suppose, a person is sentenced to prison, let's say, he is sentenced to 20 years imprisonment, which automatically carries with it certain accessory penalties like suspension, disqualification to vote or be voted for, civil interdiction - it is included.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Suppose after 5 years in jail, the President pardons him and he is now released So the criminal liability is extinguished. From 20 years, after 5 years, pardoned. Question: What happens now to civil interdiction, the disqualification? Are those penalties are deemed removed by the pardon? Does the pardon of the principal carry with it pardon of the accessory penalties? Answer: If we stick to the general rule, the accessory follows the principal, pardon of the principal automatically carries with it the pardon of accessory penalties. But not in criminal law because the law says; "A pardon shall not work the restoration of the right to hold public office, the right of suffrage unless suchh rights be expressly restored by the pardon.” Therefore, if the pardon by the President is in general terms, the principal penalty is pardoned but the accessory penalties remain. So you cannot run for public office; you cannot vote, you cannot manage your property because you are still under civil interdiction until 20 years shall have lapsed. Question: Normally, how should the pardon be worded? Answer: The pardon should be worded like this'. "You are hereby pardoned and restored to your full civil and legal rights." So with that pardon, it is meant that the principal and the accessory penalties are pardoned. But if it is worded: "You are hereby pardoned" The accessory penalties should remain. That is the rule on Article 36.

Art. 37. Cost; What are included. — Costs shall include fees and indemnities in the course of the judicial proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations in force, or amounts not subject to schedule.

Art. 38. Pecuniary liabilities; Order of payment. — In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order: 1. The reparation of the damage caused. 2. Indemnification of consequential damages. 3. The fine. 4. The cost of the proceedings.

Question: What are the pecuniary liabilities of an accused under the law? What are the civil liabilities payable in terms of money? Answer: There are 4.... Reparation } civil in nature Indemnification } civil in nature Fine } payable to the government ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Cost } payable to the government Question: What happens if a convict is sentenced to make reparation to the offended party offended by him, to pay the fine and to pay the costs And the convict does not have the money or assets to satisfy all. His assets are just sufficient to make one or two. What is the order of payment? Answer: The order of payment is reparation, first. If there is still money left, the balance for indemnification. The thud priority is fine. And, the last is of course the cost Order: reparation; indemnification; fine and costs So, this is one instance where the government will insist that it be paid first i his time the government decides to be generous They are giving priority to the Civil liability rather than to the pecuniary penalties.

Art. 39. Subsidiary penalty. — If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the nest preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: 1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. 2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. 3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit. 4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same deprivations as those of which the principal penalty consists. 5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him, from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969).

Subsidiary penalty applies where a person is sentenced to pay a fine and he cannot pay the fine.

Question: What will happen? Answer: The law says: If you cannot pay the fine, you will instead undergo what is known as subsidiary penalty in this case, subsidiary imprisonment. You will go to jail without the fine.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: For how many days? Answer: The ratio is one day for every P100. So if your fine P80.00, the substitute is 10 days in jail. That is the subsidiary penalty.

Question: What happens if the convict cannot pay the reparation, indemnification and the cost? Is there subsidiary penalty? Answer: The answer is NO, Article 39 is very specific, there is no subsidiary penalty for non payment of the fine. There is no mention of reparation, indemnification or costs. For example, the fine is P20.00. So, OK 00 one day. Another P8.00 one day. It is already two P16.00. What about the balance of P400.? So 2½ days of subsidiary imprisonment? Not only 2. The fraction of a day is not counted. That is very clear in paragraph 1. the last clause - no fraction or part of a day shall be counted against the prison. Suppose the convict is sentenced to pay the fine, can pay the fine but says: I would rather go to jail than pay the fine Question: Can he do that? Answer: If you look at the law. The law says: “Is a convict has no property with which to make the fine.” Has no property – therefore, if there is property, Article 39 does not apply because the government can compel you to pay by garnishing your bank account or by levying your property. He will be forced to pay.

Question: So, what is the implication? Answer: The implication is Art. 39 apply only to insolvent people. Someone who is so poor or indigent. Question: Is this not a violation of the constitutional provision that "No person shall he imprisoned for non-payment of debt?'" Answer: No, it is not. According to the SC in the case of United States vs. Cara, — what is meant by the constitution is contractual debt. No person shall be imprisoned for non-payment of debt arising from contract, like a loan. But a pecuniary of fine is not arising from contract. It is an obligation arising from law or from an act or omission punishable by law. It is not covered by the constitutional prohibition

That is how you compute it. For every P8 00, one day, but subject to the following rules. 1. If the principal penalty imposed be prison correccional or arresto and fine, he shall remain under the confinement until his fine referred to in the preceding paragraph is satisfied; hut his subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. If it is prison correctional or arresto and fine imprisonment plus fine. Prision correctional or arresto mayor plus fine. The computation is very simple. "You are herebysentenced to one year prision correccional, and to a line of P80.00 with subsidiary imprisonment in case of insolvency. Your principal ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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penalty is 1 year and fine of P80.00. Ifyou cannot pay the fine, 1 day is equal to P8.00. So, 1 year + 10 days. After one year, you cannot be released You still have to stay in jail for 10 days. The 10 days is what you calledsubsidiary imprisonment. We will go to an illustration is far as that one. Remember, we "should apply, when the penalty is like this, prison correccional + fine; or arresto mayor + fine.

PROBLEM: Suppose a person is sentenced to 6 months or arresto mayor and to pay a fine ofP800 with subsidiary imprisonment in case of insolvency. Suppose, the convict cannot pay the fine of P800 how long will the subsidiary imprisonment last? Under paragraph 1,100 days —around 3 months and 10 days. The principal penalty is 6 months. What is 1/3 of that'' 1/3 is 2 months. That is 60 days. According to paragraph 1, " in no case shall the subsidiary penalty exceed 1/3 of the principal penalty". The principal penalty is 6 months, 1/3 of that is 60 days. This is already 100 days automatically reduced to 60 days,

penalty

That is the first limitation.

In no case shall the subsidiary penalty exceed 1/3 of the principal

PROBLEM: The accused is sentenced to 6 years of prison correccional and pay a fine of 3,200.00 that is his penalty He cannot pay the fine, Question: How long will subsidiary penalty? Answer: let's count first. P800 = 1 day. That's 400 days. Let's find out. What is 1/3 of the principal penalty? 1/3 is 2 years. Does this exceed 2 years? Therefore, it can be. It does not exceed 2. However, in no case should it last longer than 1 year. So it will be automatically reduced to one year. That is the maximum. 7 hat is the second limitation: in no case shall the penalty exceed 1/3 of the principal penalty, and in no case shall it go beyond 1/3 of the entire penalty.

2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony and shall not exceed fifteen days, if for light.

Paragraph 2 applies when the penalty imposed by the court is only a FINE. So, there is no imprisonment unlike in par 1 where the principal penalty is imprisonment. Here we have tine only. The same rule: if you cannot pay the fine, P800/day. But the maximum subsidiary imprisonment is only 6 months if you are prosecuted tor grave or less grave felony. So, even if the tine is P100, 000.00 "You are hereby sentenced to pay a fine of P100,000.00", you cannot pay, even though how much, it is always 6 months.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Or if you are only prosecuted for a light felony, the maximum is only 15 days. You are hereby found guilty, pay a fine of P200.00. There is no more imprisonment, only the fine. You cannot pay P200.00. 200/8 = 25 days. You subtract 10. It must go down to only 15 days. Because if the penalty is only fine, then you are prosecuted for a light felony, in no case should the subsidiary penalty exceed 15 days. Do not confuse paragraph 1 and 2. In paragraph 2, the penalty imposed by the courtis only fine. In paragraph 1, the penalty imposed by the court is prison correccional, or arresto + fine.

BAR Question: After he was found guilty and sentenced by the court to 6 years and 1 day and to pay a fine of P80.00. flow long is the subsidiary penalty7 10 days And 10 days does not exceed 1/3 of the principal penalty. Wrong. That is not par. 1. That is par. 3 If the penalty is 6 years and 1 day, that's already higher than prison correccional. That is already prison mayor Answer: 3. There is no more subsidiary penalty. There is no subsidiary penalty if the principal penalty is higher than prison correccional. So prison mayor, reclusion temporal, perpetua, death There is no more subsidiary penalty for non-payment of the fine. That is Rule # 3. There is no more subsidiary penalty if the principal penalty is higher than prison correctional

4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of fixed duration, the convict during the period of time established m the preceding rules, shall continue to suffer the same deprivation as those of which the principal penalty consists. When the principal penalty is not to be executed by confinement. Meaning the principal penalties does not consist of imprisonment, but of a fixed duration, the subsidiary penalty should be of the same nature as the principal penalty. But it is a divisible penalty.

Example: Destierro it has the same duration as prison correccional. You cannot be imprisoned but you are exiled. It is divisible because it has a fixed duration. So, it is the penalty. You are herein sentenced to 4 years of destierro and to pay a fine of P80.00. Suppose,you do not pay the fine of P80.00. Question: What will happen to you? You have to undergo subsidiary penalty: 1 day for every P8.00. So, ten days of subsidiary, destierro also. Answer: You do not say "subsidiary imprisonment'" because the principal penalty is not imprisonment. If the principal penalty is destierro. die subsidiary pcnaity should also be destierro.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Another Example You arc sentenced to a penalty of suspension. Suspension is under Art 25. There is also 6 months to 6 years. Divisible, but no imprisonment. So, four years of suspension; fine of P80.00. If you cannot pay the fine of P80.00, you have to undergo 10 days of subsidiary suspension. The subsidiary penalty should be of the same nature as the principal penalty. Do not always say " subsidiary imprisonment" But you follow the rule in paragraph 4. In no case subsidiary destierro exceeds 1/3 of the principal penalty.

Question: Suppose the principal penalty is not to be executed in confinement, but it has no fixed duration. Will paragraph 4 apply? Answer: Of course, not

Question: Give an example of a penalty not to be executed by confinement but it has no fixed duration. Answer: Public censure. It is the only example you can think of, it is only a light penalty where the judge will give you severe censure it will be a blot on your record For Example public censure + fine of P20.00. You cannot pay. So, you cannot say: two days of subsidiary penalty of 2 days of public censure. You will keep on returning to the judge to be sermonized at.

5. The subsidiary personal liability winch the convict may have suffered by reason of his insolvency shall not relieve him from the fine in case his financial circumstances should improve. Suppose, I am asked to pay a fine of so much. I'm insolvent, as poor as a rat. So, I undergo subsidiary penalty fine of P4.000.00, I have nothing to pay. I’m imprisoned. Then I'm released after serving my sentence plus the subsidiary imprisonment. Afterward', I win in the lotto. So, i have much money now. The government will say "alright, pay your fine." You say "No more. I have already paid it through my subsidiary imprisonment! What paid? You pay again! Question: Why? Answer: Because service of the subsidiary penalty will not relieve you from the payment of the fine, if your financial condition will improve in the future. The government has only 10 years to collect the fine. Only 10 years. It is an obligation arising from law and the prescriptive period is 10 years. Although, the law is silent. If your financial condition improves after 10 years, no more. But in the first 10 years, you can be compelled to pay and you cannot use the subsidiary imprisonment as a reason for not paying.

Question: is the subsidiary imprisonment an accessory penalty ' Is it an accessory penalty.'' Answer: If you look at Art. 25 of the Penal Code, it en all the possible penalties. I here is no mention of subsidiary penalty. CONCLUSION: it is not an accessory, penalty.

Question: If it is not an accessory penalty, what is the implication?

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Answer: It is not deemed imposed with the principal penalty. Meaning, it must be expressly mentioned in the decision. And therefore, what happens if you arc ordered to pay a fine and you cannot pay the fine, but there is nothing in the decision which mentions it. Article 25 says that you cannot undergo subsidiary penalty, because it is not an accessory penalty

Question: Slow should the decision be worded? Answer: You are hereby sentenced to pay a fine of P 100,000.00 with subsidiary imprisonment in ease of insolvency. Question: Under the law, in what instances will there be no subsidiary penalty'' When is subsidiary penalty not be served? In what instances will there be no subsidiary penalty for an accused person? Answer:  Then is no subsidiary penalty for non-payment of fine. In the same vein, there is no subsidiary penalty for non-payment of reparation, indemnification and costs  There is no subsidiary penalty if the principal penalty is higher than prison correccional.  There is no subsidiary penalty if the principal penalty is not to be executed by confinement if it has no fixed duration, like public censure.  There is no subsidiary penalty if the court did not mention it expressly in the judgment of conviction, because the rule is that it must be mentioned, otherwise the convict cannot be compelled to serve the subsidiary penalty.

Question: How do you define accessory penalty? Answer: It is penalty deemed imposed with the principal penalty. So, the penalty is deemed imposed with the principal even if the judge did not mention it. ARTICLE 73, RPC. Presumption in regard to the imposition of accessory penalty. Whenever the courts shall impose a penalty which, by provision of law, carried with it other penalties, according to the provisions of Articles 40, 41, 42, 43, 44, 45 of this Code, it must be understood that the accessory penalties are also imposed upon the convict. So, whenever a principal penalty is imposed, the accessory penalty is deemed imposed even if not mentioned in the judgment of conviction.

Question: But how will I know what are the accessory penalties? Suppose, I am sentenced to 12 years of prision mayor. I know there are accessory penalties. But what are they? What are accessory penalties? Suppose, I am sentenced to 15 years reclusion temporal, what are the accessory penalties? Suppose, I am sentenced to 6 months of prison correccional. What are those deemed imposed? How do I look for the accessory penalties? Answer: Arts. 40 to 44. These provisions will tell you that if this is the principal penalty, these are the accessory penalties attached to it.

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Section Three Penalties in which other accessory penalties are inherent

Art. 40. Death; Its accessory penalties. — The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date sentence, unless such accessory penalties have been expressly remitted in the pardon.

Art. 41. Reclusion perpetua and reclusion temporal; Their accessory penalties. — The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Art. 42. Prision mayor; Its accessory penalties. — The penalty of prision mayor, shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Art. 43. Prision correccional; Its accessory penalties. — The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in the article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

Art. 44. Arresto; Its accessory penalties. — The penalty of arresto shall carry with it that of suspension of the right too hold office and the right of suffrage during the term of the sentence.

Question: What is the most famous accessory penalty? Answer: Civil interdiction.

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Question: What are the principal penalties which carry wish them the accessory penalty of civil interdiction. In other words, civil interdiction is the accessory penalty to what principal penalties? Answer: You can answer that only when you go to Articles 40-44. So, the principal penalties which carry with them the accessory penalty of civil interdiction are:   

Death Reclusion perpetua Reclusion temporal

Question: Does death penalty carry with it civil interdiction? Answer: Yes. The law is very clear. So, you are sentenced to die. And then it was commuted -when the SC decides on lowering it; or if the President decides to commute it to reclusion perpetua. that happened in 1987 when the New Constitution took effect doing away with the death penalty -- what happened to these people who are sentenced to death? There is a constitutional commutation So, automatically, they will be under civil interdiction.

PROBLEM: Suppose, you are sentenced to death, and you are scheduled to die between now and next month, there is no commutation. Neither the President nor the SC has reduced the penalty. So, you are still going to be executed. Question: Is there civil interdict. Answer: Technically, NONE. Unless it will be commuted. Technically, you are not under civil interdiction. So, technically, you can donate your property, you can manage it, you can exercise parental authority. There is no civil interdiction. I doubt how will you do it because you are already inside the jail But under the law, you have no accessory penalty When the President says: "You are hereby sentenced to reclusion perpetua" from that moment, you are under civil interdiction. Question: For how long'? Answer: The law says for the next 10 years.

Question: Suppose, you are sentenced to reclusion temporal flow long is the civil interdiction? Answer: Under Art. 41, it is of the same duration as the principal penalty. So, when it says 20 years of reclusion temporal, civil interdiction will also be 20 years.

Question: Suppose you are sentenced to perpetua. You arc not sentenced to death, flow long will the civil interdiction last? Answer: Under Article 41, it says there, that if will last lot the rest of your life forever' Civil interdiction for life. Or, during the period of the sentence refers to temporal or perpetua; civil interdiction for life Under Article 40, if you are sentenced to death, and it was commuted to perpetua, the civil interdiction is only good for 30 years Hut if you are sentenced to reclusion perpeiua, the civil interdiction is ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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for the rest of your life. There must be something wrong with the law. CONCLUSION: It is better to be sentenced to death commuted to perpetua because the civil interdiction is only for 30 years, but if sentenced to perpetua, civil interdiction is for the rest of your life. This is an awkward provision in the Revised Penal Code.

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.

When you are found guilty, the instrument or tools used in the commission of the crime will be confiscated or forfeited in favor of the State. This is also applied in special laws like illegal possession of firearms or drug pushing. The shabu will not be returned to the pusher. In a homicide or murder case, the weapon recovered and used as evidence, the gun, knife, bolo, will be confiscated. In illegal gambling, the cards, dice, chips, they are ail confiscated b\ the order of the court. But, of course, you cannot apply that to certain crimes. Like, for example, in rape, you cannot confiscate the instrument used in the commission of the crime

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Chapter Four Application of Penalties Section One Rules for the application of penalties to the persons criminally liable and for the graduation of the same.

Article 46. Penalty to be imposed upon principals in general. The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony in general terms, it shall be understood as applicable to the consummated felony.

Article 47. In what cases the death shall not be imposed; Automatic Review of Death Penalty Cases. The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more that seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which the penalty shall be reclusion perpetua. In all cases where the penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment by the court en banc, within twenty (20) days but not earlier than (15) days after promulgation of the judgment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within ten (10) days after the filing thereof by the stenographic reporter.

Now, Article 47 was amended by the Heinous Crimes Law. In what instances will the death penalty be NOT imposed? There are three (3) instances here. Take note that the law says: The death penalty shall be imposed in all cases in which it must be imposed under existing laws. The personal belief of the judge is irrelevant. He must follow the law.

The following are the instances when death penalty will not be imposed: 1.

When the guilty person is below 18 years of age at the time of the commission of the crime ( there is an automatic lowering of the penalty by 1 degree);

2.

When the convict is more than 70 years of age;

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When upon appeal or automatic review of the case by the Supreme Court the required majority vote is not obtained for the imposition of the death penalty. Question: When is the constitutional proscription against the imposition of the death penalty dated? Give the legal basis of your answer. Answer: The Heinous Crime Law took effect after 15 days following its publication in at least 2 newspapers of general circulation. It was published on December 16, 1994. So, with that the effectivity is December 31, 1994. 3.

Question: When is death penalty commuted under the same Code? Answer: This…Article 47.

Article 48. Penalty for complex crime. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means of committing the other, the penalty for the most serious crime shall be imposed, the same be applied in its maximum period.

First of all, we will deal with the concept of plurality of crimes. It means to say that the person performed a series of criminal acts - one after the other. You commit 2 or more crimes. One after the other. There are supposed to be two types of plurality of crimes. The 1 st case is material or real plurality, as distinguished from formal or ideal plurality of crimes. 1.

Material or plurality means that the person performs 2 or more criminal acts after the other and he is liable for every criminal act that he commits because every crime is motivated by a separate criminal intent from the other. A perfect example is when someone runs amok. He started shooting people, even those he doesn't know. He killed so many. He killed the persons one after the other. If he killed 30 people, he will be guilty of 30 counts of homicide. The criminal intent to kill victim #1 is different from the criminal intent to kill victim #2. There are 30 criminal acts. There should also be 30 separate information. Although from the viewpoint of criminal procedure, in order to expedite the proceedings, they can be consolidated. If he is found guilty, there will 30 convictions and 30 penalties.

2.

Formal or real plurality means that a person commits 2 or more criminal acts, there will be 2 or more victims or offended parties, but in the eyes of the law, only one crime was committed.

Question: When will that happen? Answer: They are: 1. When you commit a complex crime, as defined in Article 48; 2. When the offender commits a special complex or composite crime; or 3. When the accused is found to have committed a continuous crime or delito continuado.

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Question: What is a Complex crime? Answer: There is a complex crime when a single act constitutes 2 or more grave or less grave felonies, or when the offense is a necessary means of committing the other. So, there are 2 types of complex crimes: 1. 2.

When a single act constitutes 2 or more grave or less grave felonies, which is also called Compound Crime or Delito Compuesto; When an offense is committed as a necessary means to commit the other which is called complex crime proper or delito complejo.

Compound Crime or Delito Compuesto A person throws a hand grenade to the ground an in so doing he killed 10 people and almost killing 5 bystanders. Are there 10 crimes of multiple murder with multiple frustrated murder? NO, there is only one complex crime of multiple murder with multiple frustrated murder. There is only one act of throwing the hand grenade, although as a result of that act, several grave or less grave felonies result. Example: When you aim your gun towards other persons. You fired it. The bullet killed 2 people. There is only one act. Did you commit 2 crimes of homicides? NO. You commit the crime of double homicide.

Another example. Aberratio Ictus. The accused, with intent to kill A and aiming his gun towards A fired it but because of poor aim, he did not hit A but instead hit and killed B. Question: Is the accused liable for the death of B who was not even intended the victim? Answer: YES because of aberratio ictus.

Question: If you are a fiscal, with what crime will you prosecute the offender? Answer: Complex crime of homicide with attempted murder. It is a complex crime because the mere fact of firing at A is a felony, although attempted. On the other hand, he committed homicide because he killed B. The crime is complex under Article 48 because the crime of homicide and attempted murder came from a single act, one grave and the other is less grave.

Now, take note that under the law, in order for the complex crime to exist, a single act must constitute grave or less grave felonies or 2 less grave felonies or 2 grave felonies. So, under Article 48, two grave felonies can be complexed with each other. Two less grave felonies can be complexed with each other and grave and less grave can be complexed with each other.

Question: How about light felonies?

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Answer: There is no mention. Therefore, a light felony can be complexed wit a grave or less grave felony. A light felony cannot be complexed with another light felony. There is no such thing as a complex crime of multiple slight physical injuries. Light felonies are not covered under Article 48.

Question: What happens if a single act produces a grave or less grave and a light felony? Answer: There are two possibilities: 1.

The light felony will be absorbed by the grave or less grave. For example. A policeman was engaged in the discharged of his duties. I approached him and hit him in the face with my fist. It caused him slight physical injuries that he sustained when I hit him? It is absorbed by the element of attacking or employing force. You cannot say that the crime is direct assault with slight physical injuries.

2.

There are as many light felonies s there are victims. They are treated as different crimes. You cannot complex them. They are to be prosecuted severally. For example, I throw a stone at A, it hit him; but the same stone hit B. You cannot say that the crime of slight physical injury committed against A absorbed the injury of B. He cannot be prosecuted for double slight physical injuries because Article 48 does not apply to light felonies. Conclusion: There are two separate felonies of light physical injuries.

PEOPLE vs. BUAN 22 SCRA 183 Facts: A driver while driving his vehicle recklessly bumped another vehicle causing the death of A serious injury to B and slight physical injury to C. So, a single act of bumping produced the death of A, serious injury to B and slight physical injury to C. The fiscal, applying Article 48, filed two informations. He filed one information for homicide and serious physical injuries through reckless imprudence against the accused. However, earlier he files one information for slight physical injuries. He files an information under the old Civil Code for slight physical injuries through reckless imprudence, insofar as the light felony is concerned. The accused, upon arraignment, pleaded guilty and was sentenced to pay a fine. In the meantime, the preliminary investigation of the case continued with respect to the other two. After that, the fiscal filed a second information in the RTC for homicide and serious physical injuries through reckless imprudence. The accused moved to quash the second information, pleading double jeopardy. But, according to the prosecution, there is no double jeopardy because that crime is not the same as this crime. The crime is slight physical injuries committed against A and B. These crimes cannot be complexed. Held: There is double jeopardy. He is being charged for the same offense. There should be only one information for homicide serious and slight physical injuries. That should only be one. So, you cannot separate the three.

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The error of the prosecution is in believing that when, for example, with one negligent act, you hit 2 people - killing one and causing slight physical injuries to another, the impression is that there are 2 crimes. Homicide and slight physical injuries. But actually, there is only one crime. That is the crime of committing an imprudent act. The crime is reckless imprudence. How about the homicide? How about the physical injuries? Those are only effects of the imprudent act, which is determinative of the penalty and civil liability. Article 48 applies when a single act results to two or more grave or less grave felonies. But here, you cannot consider the homicide, the injury, as separate. Article 48 does not apply to culpable felonies. But, there is only a single act, which produces one felony. Why? Homicide is a felony. A serious physical injury is a felony. The felony is not the homicide or physical injuries. It is the reckless imprudence. When you commit an imprudent act, the felony is the imprudent act. The imprudence and reckless imprudence are the felonies. Homicide, serious or slight physical injuries, is only to determine what is the penalty. The felony is not the homicide or the physical injuries. The felony is the imprudent act because according to Article 3, a felony is an act or omission punishable by law. The homicide and the physical injury will only determine the penalty. The error, said the SC, is because of the title given by fiscal to the information - Homicide through Reckless Imprudence. It creates the impression that the homicide is the crime. But actually, that is not the crime but only the effect of the felony.

VERANO vs. CA 115 SCRA 82 This reiterates the ruling in the Buan case. What is the felony? It is the imprudent act.

LONTOK vs. GORGONIO 89SCRA632 Facts: The felony is the homicide, the physical injuries. The imprudent act is only the manner of committing the felony because, according to Article 3, a felony is committed either by dolo or culpa. The culpa is not the felony, but only the manner. If you follow this case then, if the felony is the injury, you cannot complex. There must be two; otherwise, there is double jeopardy, because one crime is different from the other.

REODICA vs. CA 292SCRA887 A reiteration of the Lontok Case.

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Complex crime proper or delito complejo There are two acts. It is not a single act. You commit the felonies one after the other. But the first felony is not the ultimate object. It is only the stepping stone to commit another offense. You commit this not because that is your intention. It is only the first step to commit another. One is the means to commit the other.

ILLUSTRATION -----------Compound Crimes Complex Crimes (Art 48) Formal or ideal Crimes---------Special Complex Crime (Composite Crime)

delito complejo

delito complejo

----------Continuous Crime delito continuado

Question: What are the good examples of these? Answer:  Estafa through Falsification of Commercial Documents I will falsify the check by counterfeiting the signature of the lawyer and encash the check. So, the falsification was the crime committed as a necessary means to defraud the bank - estafa.



Forcible Abduction with Rape When the offender, with lewd designs abducted a woman and drove her somewhere and through force and intimidation, had carnal knowledge with her. The forcible abduction preceded the rape. The SC said that the crime is forcible abduction with rape.



Malversation through Falsification of Public Document



Kidnapping with Murder You kidnap somebody and demand ransom. When there is no ransom paid, you kill the hostage. It is very common.

Question: What is the crime committed? Answer: The crime committed is the crime of Kidnapping with Murder. The kidnapping was used as means to effect the killing. But this example is doubtful because of the amendment of Article 267. Because of this amendment, it is doubtful whether the crime is called kidnapping with murder under Article 48, or it is called Special Complex Crime of Kidnapping with Murder, or the crime of Kidnapping Qualified with murder.

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But take note, one offense is committed as a necessary means to commit the other. The law does not say one offense is committed as an indispensable means to commit another. So, the first offense is necessary to commit the second but the first is not indispensable to commit the second. When you say "indispensable", it means that without it, the second will not be committed. Question: What happens if the first offense is indispensable to commit the second? Is there a complex crime? Answer: There is none. The second crime is the crime because the second crime committed is the real crime. Question: How about the first crime? Answer: If it is indispensable, then it is only an element of the second crime. The first offense will be the element of the second; it is absorbed. Without it, you cannot commit the second. A good example of this is the so-called Absorption Doctrine or Doctrine of Absorption in the crime of rebellion.

PEOPLE vs. HERNANDEZ Issue: When rebellion is committed and in the course of rebellion, the rebels killed people, they injured people, they burned and destroyed property, can they be guilty of the complex crime of Rebellion with murder or physical injuries with homicide? Held: NO. The common crime is absorbed because you cannot convict a person of rebellion without killing. When you commit rebellion, necessarily people will die. So, the killing and the destruction are not only accessory but also indispensable. They are absorbed in the felony of Rebellion. That is why there is no such thing as complex crime of Rebellion with Homicide or Murder because it does not fall under Article 48. The law also does not say that one offense is a direct means to commit the second. So, it is not indispensable, not to conceal, not a direct means - necessary but not direct.

Question: What do you mean by that? Answer: In the case of People Vs Abidosa, where the accused decided to kill the victim. What he did was to forcibly enter the house of the victim. And once inside, he killed the victim

Question: Is the crime murder? Or trespass to dwelling? Because he had to enter the house first by forcing himself in and once inside, he killed the person. Answer: Actually, trespass to dwelling was not the primary intent. The primary intent was to kill. The trespass was only incidental. It was the direct means effected to kill the victim. So, the crime there is murder aggravated by unlawful entry. The forcible entry is not trespass to dwelling, but only the aggravating circumstance.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What is the penalty for complex crime? Answer: The penalty of the complex crime is to be based on the most serious crime, the same to be imposed in its maximum period. There is only one penalty because if there was only one crime, there should only one penalty. For example, person commits the complex crime of homicide and attempted homicide. Of course, the penalty for the homicide is higher that the attempted homicide. Question: What is the penalty for homicide? Answer: The penalty is reclusion temporal, but it should be imposed in its maximum period. Question: How about the penalty for attempted homicide? Answer: No more. Question: How about estafa through falsification of public document? Answer: Actually, it depends. There are instances when the penalty for estafa is higher than falsification, depending on the amount involved in the estafa. But there are also instances where the penalty for falsification is higher. So, it is a matter of looking at the two penalties. If the penalty for the crime of estafa is higher, then it will be the one to be imposed in its maximum period. On the other hand, when the penalty for the falsification is higher, then it should be the one to be applied in its maximum.

Question: Is Article 48 beneficial to the accused? Answer: YES. It is intended to benefit the accused. In the first place, instead that he should be charged 3 times, there is only one crime charged. Instead of putting a bond 3 times, there will only be one. The penalty is still for his advantage. Example: A single act produces death of 3 people - multiple homicide. Well, there should only be one crime. The same provision, the higher the offense, they are just the same but three homicides. The penalty for homicide is reclusion temporal. We will maximize it: 20 years - one penalty only. Assuming, there is no Article 48. You killed three people; there will naturally be reclusion temporal. And even if they will give you the minimum of 12 years and 1 day, it will still turn out to be higher than the penalty in the maximum. Also, Article 48 applies only to felonies. You cannot complex the felony with the crime punishable by a special law. So, there is no such thing as a complex crime, under the crime in the RPC and a crime under a special law.

Special Complex Crimes The second type of ideal is the so-called special complex crime. So, there are two types of complex crime, the ordinary and the special complex crime. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Ordinary complex crime is governed by Article 48. When two or more crimes are complexes under Article 48, that is what is called the ordinary complex crime. Special complex crime is a crime under the RPC declared as complex without applying the Article 48. Example: The special complex crime of Robbery with Homicide under Article 294 of the RPC. When, by reason or on the occasion of robbery, the crime of homicide shall have been committed. I robbed somebody, after taking his money, I killed him. If you apply Article 48, there seems to be something wrong. You cannot say that there is a single act. It is very clear that there are two acts. Taking his property and killing him are 2 acts. You cannot even say that one is necessary to commit the other. Question: Can you kill without robbing? Answer: YES, you can kill without robbing. And you can rob without killing. But just the same you cannot do anything because Article 294 says so. Robbery with Homicide is a special complex crime. Another example of special complex crime is Article 335: Rape with Homicide. You raped a girl and after raping her, you killed her. That is rape with homicide - a special complex crime.

Continuous Crime The third type of formal or ideal plurality is the concept of continuous crime or the so-called DELITO CONTINUADO. It is supposed to be a crime, which consists of a series of acts but all coming or emanating from one criminal resolution. There is only one criminal resolution, and it is followed by a series of acts.

PEOPLE vs. DE LEON Facts: The suspect stole two roosters. So, there are two acts of taking. But it turned out that there are also two owners. Issue: How many crimes of theft? Held: There is only one crime of theft. One crime of theft involving two roosters because there is a single intent to steal. He does not divide his mind into stealing from the two owners. He even does not know that there are two owners of the cocks. Example: I am the class treasurer. Then, we call a party and each of us contributed P100.00 totaling P5, 000. Then I will run with the money. Question: How many crimes of estafa did I commit? Answer: There is only one crime. There is only one intent to defraud. I do not divide my mind 50 times.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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PEOPLE vs. MALLARE 168SCRA422 Facts: Consuelo Mallare offered to mortgage to Remedio Capaoan two lots allegedly owned by Leonora Balderas for the sum of P3, 000. According to Mallare, these two lots were owned by Balderas and that Mallare is authorized to mortgage. Capaoan has only P1, 500. So, the latter referred Mallare to his motherin-law, Julia Saclolo, to put up the remaining P1, 500. So, two mortgage contracts were made, one was in favor of Capaoan and the other was in favor of Saclolo. It turned out that the person who signed the contract was not the real Balderas. Two cases of falsification of public document were filed against Mallare. In one case, the victim was Capaoan, while the other was Saclolo. Mallare pleaded guilty to one charge. Later, he moved to quash the second charge pleading double jeopardy. Issue: How many offenses are there? Held: There is double jeopardy. A comparison of the two cases will tell us that they refer to a series of acts amounting to what is now as continuing offense. A single crime consisting of a series of acts but all arising from a criminal resolution. It is a continuous unlawful act or series of acts set is a single impulse. Although there are series of acts, there is only one crime committed. The crime of Mallare, although a series of acts, was set on both by a single intent or impulse to defraud Capaoan of the total of P3, 000. Actually, the original victim was Capaoan. There is only one deceit that is committed by Mallare on the two victims. Because by mere betrayal of faith, the second victim, Saclolo had been dragged into the swindle by reason of Capaoan having only P1, 500 at the time. That there were two victims, however, will not convert the crime into separate offenses, as the determining factor is the unity or the multiplicity of the criminal intent of the transactions. So, that is the basis.

SANTIAGO vs. GARCHITORENA 228SCRA214 Facts: Miriam Defensor-Santiago was charged criminally for the violation of the Anti-Graft and Corrupt Practices Acts, allegedly by favoring aliens to benefit the Alien Legalization Program. However, the prosecution sought to change the charges by filing 32 amended information since 32 aliens were benefited. When the case reached the Supreme Court, it directed the prosecution to consolidate the 32 informations into one information, charging only one crime. The Court said that the concept of delito continuado, although a product of the Spanish Penal Code, has been applied to crimes penalized under a special law. Issue: Is delito continuado applicable to special laws? Held: YES. Under Article 10 of the Penal Code, the code is supplementary to special laws, unless the latter provide the contrary. Therefore, although that principle developed from the old Penal Code, it may be applied in a supplementary capacity to crimes punished by special laws. Delito continuado is also recognized in American jurisprudence. The question of whether a series of criminal acts over a period of time raises a single offense or separate offense has also troubled American courts, as shown by several theories. The American court, following the Single Larceny Doctrine, looks at the different criminal acts as one continuing act involving the same transaction or as done in the same occasion. An American court ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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held that a contrary rule would violate the conditional guaranty against putting a man in jeopardy twice of the same offense. Another court observed that the doctrine of a Single Larceny rules that since a separate charge could be filed for each act, the accused may be sentenced for the penalty for rest of his life. The Supreme Court said that the 32 amended informations aver the offenses were committed on the same period of time that is, on or about October 17, 1988. The strong probability even exists that the approval of the application for the legalization of the stay of the 32 aliens was done by a single stroke of the pen as when the approval was embodied in the same document. One document, covering the 32 aliens, carried only one signature.

However, for example, I am the cashier of a corporation. Today, I ran away with the money. One week from now, I will spend again the money. And after one week, nothing is left. That is not continuado. The intent to defraud today is different from the intent to defraud next week. What results is a real plurality. There are as many crimes as there are as many left.

Question: Are delito continuado and complex crime the same? Answer: NO. They cannot be the same. Delito continuado is not governed by Article 48. In complex crime, there is a single act, which produces two or more grave or less grave felonies. In delito continuado, the offender performs a series of acts. One offense is not necessary to commit the other. So, you do not say that we will maximize the penalty. Article 48 does not apply. They have the same concept in the eyes of the law, albeit there is complex crime and a special complex crime. Delito continuado is not governed by Article 48.

Question: Differentiate delito continuado from a continuing crime? Answer: There is no difference, it is the same. Delito continuado is in Spanish. It means a series of acts emanating from one criminal resolution. However, there is another continuing crime under Criminal Procedure. That "when the ingredients of the crime took place in two or more places - and the crime may be filed in the place where the crime was committed, or where any one of its essential ingredients took place."

For example, kidnapping. You are kidnapped in Davao and then brought to Cotabato.

Question: Where should the case be filed? Answer: Either of the two places. That is also called continuing crime. The place where the crime started, or where it continued.

The issue there is where the case is to be prosecuted. The issue in delito continuado is how many crimes are committed. So, it is a different kind of continuing crime. That is why in order to avoid the ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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confusion, in Criminal Procedure the term is rather called TRANSITORY CRIME, where the elements occur in two or more different places. And in order to confuse it with Criminal Procedure, the issue here is there is only one criminal impulse resulting in two or more acts. So, to properly answer the proceeding Question: Initially, you should say that they are the same. One is in Spanish, and the other is in English. However, you should, if what is meant by continuing crime is a transitory crime under the rule in Criminal Procedure, then this is the difference. In delito continuado, the issue is to determine how many crimes are committed, and whether there are two or more penalties; whereas in transitory crime, the issue here is to determine in what court should the person be prosecuted. Because continuing crime could mean a crime committed where the essential ingredients took place in more than one place; or as delito continuado.

ARTICLE 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed: 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. 2. If the penalty prescribed for the felony committed be lowered than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period. The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period.

Question: What is the penalty for the felony committed if it is different from the felony intended? Answer: According to Article 49, if the penalty for felony committed is higher than the felony intended, then the penalty should be based on the felony intended but it has to be in its maximum period. On the other hand, if the penalty for the felony committed turns out to be lower than the penalty for the felony intended, then the penalty should be based on the felony committed, the same to be imposed in its maximum period. However, since the law speaks of felony committed and felony intended, then obviously it refers to Article 4(1), because that is the only provision in the Revised Penal Code which uses those phrases "felony committed" and "felony intended". Under Article 4(1), a person incurs criminal liability if he commits a felony although the wrongful act done is different from that which he intended. In other words, the question refers to that provision. And there are three situations contemplated here: ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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1. 2. 3.

CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

praeter intentionem - result exceeded the intention aberratio ictus - mistake of blow error in personae - mistake of identity

Praeter intentionem The accused intended only to commit a crime of slight physical injuries punishable by arresto menor, but the victim died. So, the felony committed is homicide punishable by reclusion temporal. Question: For What crime should he be prosecuted? If we apply Article 49, he should be prosecuted for homicide because the penalty is higher. But once he is found guilty, the penalty should be arresto menor, only to be imposed in its maximum period. This is a crazy answer. Why will a person be sentenced to homicide and penalized for slight physical injuries? So, it will arrive at an absurd conclusion by applying Article 49. Answer: The correct answer is: he should be prosecuted for homicide and if found guilty, we should impose the penalty for homicide, which is reclusion temporal. However, we will give him the mitigating circumstance that he did not intended to commit so grave a wrong as that committed.

Article49 does NOT apply to praeter intentionem, otherwise, an absurdity will result.

Aberratio Ictus The accused, with intent to kill A, fired his gun towards A but because of his poor aim; he did not hit A, but instead killed B.

Question: Is he liable for killing B, although the latter is not intended victim? Answer: YES

Question: What is the proper penalty? Answer: Obviously that is a complex crime because a single act produced 2 felonies consummated homicide and attempted homicide. Since, it's a complex crime under Article 48; the correct penalty is NOT based on the lower offense. It should be based on the higher offense, to be imposed in its maximum period. You do not base the penalty on the attempted homicide but on the consummated homicide, which should be maximized.

This is the exact opposite of Article 49, where the impossible penalty is based on the lower penalty, which should be maximized. Under Article 48, it should be based on the higher penalty to be maximized. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Which will prevail between the two? Answer: Obviously, Article 48 will prevail because it is a complex crime.

Article 49 does NOT apply to abberatio ictus because it will conflict with Article 48.

Error in Personae The accused, with intent to murder A, waits for him in the dark. The felony intended murder of A. So, he approached the intended victim from behind without giving the latter a chance to defend himself and stabbed him to death. But it turned out it is not A, but a stranger B. Question: Is he liable for the death of B? Answer: YES. The crime he committed is murder. So, the intended felony is murder of A, but the actual felony committed is murder of B. Now, we say the penalty for the crime intended is higher. Both are murder. Whether it is a murder of A or a murder of B, it is still murder. You do not say the penalty for the murder is higher than the penalty for that murder. So, there is no effect. You cannot say that the murder of a carries a higher penalty than the murder of B, they are still the same.

Article 49 does NOT apply to error in personae

Question: Where will you use Article 49? Answer: I intend to kill my father. So, I shot father but when I looked closely, it turned out that it is not my father but someone who looks like my father. So, the crime intended is parricide. The crime committed is homicide.

Question: What is the penalty for parricide, the crime intended? Answer: Reclusion temporal

Question: What crime did I commit? Answer: I am liable for the crime of homicide because I killed a stranger. But the penalty of reclusion temporal should be maximized.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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That illustrates Article 49, paragraph 2. If the penalty prescribed for the felony committed is lower than the corresponding to the one, which the accused intended to commit, the penalty for the former shall be imposed in its maximum period.

Suppose we reverse the previous problem. I attacked a stranger and killed him. But when I looked at him, it was not a stranger but my father. So, the felony intended is homicide, but the felony committed is parricide.

Question: For what crime will I be prosecuted? Answer: For parricide because I killed my father. But I did not really intend to kill him but I intended to kill somebody. So, if you are found guilty of parricide, the court will not impose reclusion perpetua to death, but only reclusion reclusion temporal in its maximum period because Article 49 paragraph 1 says: If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding at the latter shall be imposed in its maximum period.

ARTICLE 50. Penalty to be imposed upon principals of a frustrated crime. The penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony.

ARTICLE 51. Penalty to be imposed upon principals of attempted crimes. A penalty lower by two degrees than that prescribed by law for the consummated shall be imposed upon the principals in an attempt to commit felony.

ARTICLE 52. Penalty to be imposed upon accomplices in consummated crime. The penalty next lower in degree than that prescribed by law for the consummated shall be imposed upon the accomplices in the commission of a consummated felony.

ARTICLE 53. Penalties to be imposed upon accessories to the commission of a consummated felony. The penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the accessories to the commission of consummated felony.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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ARTICLE 54. Penalty imposed upon accomplices in a frustrated crime. The penalty next lower in degree than prescribed by law for the frustrated felony shall be imposed upon the accomplices in the commission of a frustrated felony.

ARTICLE 55. Penalty to be imposed upon accessories of a frustrated crime. The penalty lower by two degrees than that prescribed by law for the frustrated felony shall be imposed upon the accessories to the commission of a frustrated felony.

ARTICLE 56. Penalty to be imposed upon accomplices in an attempted crime. The penalty next lower in degree than that prescribed by law for an attempt to commit a felony shall be imposed upon the accomplices in an attempt to commit the felony.

ARTICLE 57. Penalty to be imposed upon accessories of an attempted crime. The penalty lower by two degrees than that prescribed by law for the attempted felony shall be imposed upon the accessories to the attempt to commit a felony.

ARTICLE 71. Graduated scales. In the case in which the law prescribed a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty. The courts in applying such lower or higher penalty shall observe the following graduated scales. SCALE NO. 1 1. Death 2. Reclusion perpetua 3. Reclusion temporal 4. Prision mayor 5. Prision correccional 6. Arresto Mayor

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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7. Destierro 8. Arresto Menor 9. Public Censure 10. Fine SCALE NO. 2 1. Perpetual absolute disqualification 2. Temporal absolute disqualification 3. Suspension from public office, the right to vote and be voted for, the right to follow a professional calling 4. Public Censure 5. Fine

ARITICLE 60. Exception to the rules established in Articles 50-57. The provisions contained in Articles 50-57, inclusive of this Code shall not be applicable to cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories.

Principal Accomplice Accessories

CONSUMATED 0 1 2

FRUSTRATED 1 2 3

ATTEMPTED 2 3 4

Question: What is the penalty for the crime of homicide? Answer: According to Article 249, the penalty for homicide is reclusion temporal.

Question: Reclusion temporal is the penalty for homicide against whom, the principal, the accomplice or the accessory? Answer: According to Article 46, when the Penal Code prescribes a penalty, it is understood as referring to the penalty for the principal.

Question: What kind of homicide - consummated, frustrated or attempted? Answer: Again, under Article 46, it is understood that the penalty prescribed by the law is the one applicable to the consummated. So, reclusion temporal is the penalty or the principal if the homicide consummated.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What is the penalty for accomplice and the accessories in a consummated homicide? Answer: That is where Articles 50 to 57 will come in the above graph is a summary of the entire Articles to 50 to 57. Your starting point is Zero. (Article 46)

Question: If reclusion temporal is the penalty for the principal in a consummated homicide, what is the penalty for the principal if the homicide is frustrated? Answer: It is supposed to be 1 degree lower from the principal in a consummated homicide.

Question: What is 1 degree lower from reclusion temporal? Answer: Article 71 will now apply One degree lower is the penalty of prision mayor. That is also the penalty for the accomplice in a consummated homicide.

Question: Suppose the homicide is only attempted, what is the penalty for the principal? Answer: Two degrees lower than the principal in the consummated homicide. So, the penalty should be within the range of prision correccional. The same answer for the penalty for the accomplice in a frustrated homicide, and the penalty for the accessory in a consummated homicide. So all three are 2 degrees lower.

Question: What is the penalty for an accomplice in an attempted homicide? Answer: It should be 3 degrees lower from the principal in a consummated homicide or arresto mayor. The same thing for the accessory or a frustrated homicide. Question: What is the penalty for the accessory in an attempted homicide? Answer: Four degrees lower from the principal in a consummated homicide. So, that is within the range of destierro.

This is, therefore, the manner of determining the penalty for attempted, frustrated felony and accomplices and accessory. But Article 60 says the penalty for the accomplice or for the accessory, or the frustrated or attempted felony (under Articles 50-57) should not apply where the Penal Code provides a separate exception. Because there are instances when the penalty for the accomplice and the party for the principal is the same.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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ARTICLE 268. RPC. Slight Illegal Detention - The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in Article 267 without the attendance of any of the circumstances enumerated therein. The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime. xxx

SITUATION. If I detain somebody, I am the principal. But I use your house and you allowed it, you are an accomplice. Under article 268, the penalty for you and the penalty for are the same. It should not be one degree lower for you. So, this is an exception. There is no distinction between an accomplice and a principal. The principal and accomplice fall under the same liability. That is the application of Article 60.

ARTICLE 346. RPC. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party. The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationship, shall cooperate as accomplice in the perpetration of the crime embraced in Chapter Second, Third and Fourth of this Title, shall be punished as principals. Xxxx

The Crime here is against chastity, which may either, be rape, acts of lasciviousness, seduction corruption of minors, and abduction. PROBLEM: A woman is raped. The accomplices of the rapist are parents or guardians. According to Article 346, the penalty for the rapist and the penalty for the accomplices are the same.

ARTICLE 121. RPC. Flight to enemy's country. The penalty of arresto mayor shall be inflicted upon any person who owing allegiance to the Government, attempts to flee or o to an enemy country when prohibited by competent authority.

PROBLEM: So, if you go to the enemy country when you are not supposed to go there because there is was, when you come back, you can be prosecuted. Question: Suppose you are attempting yet (meaning you have not yet left), but you were already caught, what is the penalty? Answer: Still the same, as if you have already gone there because the mere attempt to flee is the same s consummated. So, this is another example when the penalty for the attempt or the consummation is the same.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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ARITCLE 76. Legal period of duration of divisible penalties. The legal period of duration of divisible penalties shall be considered as divided into three parts, forming three periods, the minimum, the medium, and the maximum in the manner shown in the following table:

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE TIME INCLUDED IN EACH OF THEIR PERIODS

PENALTIES Reclusion temporal

ENTIRE DURATION From 12 years and 1 day to 20 years

MINIMUM

MEDIUM

MAXIMUM

From 12 years and 1 day to 14 years and 8 months

From 14 years, 8 months and 1 day to 17 years and 4 months From 8 years and 1 day to 10 years

From 17 years, 4 months and 1 day to 20 years

From 2 years, 4 months and 1 day to 4 years and 2 months From 2 months and 1 day to 4 months From 11 to 20 days

From 4 years, 2 months and 1 day to 6 years

Prision mayor absolute disqualification and special temporary disqualification Prision correccional suspension and destierro

From 6 years and 1 day to 12 years

From 6 years and 1 day to 8 years

From 6 months and 1 day to 6 years

From 6 months and 1 day to 2 years and 4 months

Arresto mayor

From 1 month and 1 day to 6 months From 1 to 30 days

From 1 to 2 months

Arresto menor

From 1 to 10 days

Form 10 years and 1 day to 12 years

From 4 months and 1 day to 6 months From 21 to 30 days

COMPUTATIONS Reclusion temporal - duration is 2 years, 1 day to 20 years But reclusion temporal has three periods - minimum, medium, maximum. To know the duration, you have to know Article 76.

Reclusion temporal - 12y 1d to 20y Minimum Medium Maximum

12y 1d to 14y 8m 12y 8m 1d to 17y 4m 17y 4m 1d to 20y

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Formula a.

Determine the duration of the entire felony Maximum 20y Minimum 12y disregard the 1d Subtract 20y - 12y = 8y. This is the duration of the entire penalty.

b.

Since there are three parts, divide 8y by 3. It is difficult to divide, so first, convert some years to months. Hence, 8y-2y = 6y, 24m(2y) Then divide 6y24m by 3

 c.

Duration of each period = 2y8m of reclusion temporal

Start with 12y and add 1d (but in the computation, do not add 1d), then add 2y and 8m

Therefore 12y 1d 2y 8m 14y & 8m

 d.

14y 8m 2y 8m 16y & 16m or 17y 4m

 e.

So the minimum period is 12 y 1d to 14y 8m

17y 2y 19y



So the medium necessarily starts at 14y 8m 1d to 17 y 4m 4m 8m 12m or 20y So, the maximum starts at 17y4m1d to 20y

Prision Mayor - duration is 6y 1d to 12y Minimum Medium Maximum

6y1d to 8y 8y1d to 10y 10y1d to 12y

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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If we follow the formula, the computation shall be: a. b. c.

12y-6y = 6y 6y/3y = 2y (duration of each period) thus: 6y1d to 8y (minimum) 8y1d to 10y (medium) 10y1d to 12y (maximum)

Prision correccional - duration is 6 months, 1day to 6 years Minimum Medium Maximum a.

6y - 6m (but you cannot subtract without converting first the 6y into months) 6y =

b.

5y12m - 6m 5y 6m (duration of entire of prision correccional)

Convert 5y6m in such a manner s to make it divisible by 3 5y 6m 3y 30m

c.

6m1d to 2y4m 2y4m1d to 4y2m 4y2m1d to 6y

3y 30m by 10m (duration f each period)

Compute 6m by 10m by 16m or 2y 4m + 1y 10m 3y 14m or 4y 2m + 1y 10m 4y 24m or 6y

Thus Minimum Medium Maximum

6m1d to 2y4m 2y4m1d to 4y2m 4y2m1d to 6y

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Arresto mayor - Duration is 1 month, 1day to 6months Minimum Medium Maximum Formula

1m to 2m 2m1d to 4m 4m1d to 6m

6m-1m = 5m or 3m60d

So, 3m60d/3 = 1m20d (duration per period of arresto mayor) Compute

1m 1m20d 2m20d 1m20d 3m40d or

minimum

1m1d to 2m 20d

4m 10d medium 1m 20d 5m 30d maximum

2m21d to 4m10d 4m 1d to 6m

Therefore, if we apply the formula, it will not be with what is provided ender Article 76

Question: What is the correct answer? Answer: Follow the law. The solution derived from the formula is mathematically correct but legally wrong. Whereas in Article 76, it is legally correct although mathematically wrong. In Article 70, you can read there the scales. What is important is Scale 1. In the scale of penalties, how are the penalties arranged starting from down the last penalty? All right, we have said earlier that penalties are either divisible or indivisible; one with a fixed duration and one without fix duration. Now, for penalties which are divisible (penalty which consists of three periods, known as minimum, medium and maximum), you have at least to know the duration of each period. Article 76 is our guide because it tells us the duration of each period of the penalty. But that will entail really of memorizing the table down to the last month and day, and you cannot commit any error there because an error of one day will give an error on your answer. Now, you might as well remember the mathematical formula to arrive at the same answer even without reading Article 76. Actually, the basic knowledge of mathematics for the minimum period will answer even without memorizing Article 76.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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For example, the duration of reclusion temporal 2 years and 1 day to 20 years. Now, the formula to subtract the minimum from the maximum disregarding the 1 day difference 20 years - 12 years = 8years. That is the entire duration of the penalty of reclusion temporal. Next is to determine the duration of its period. Since there are three periods, then we have to divide 8 years into three parts. Now, of course, dividing 8 years into three parts would be rather difficult. The best thing to do is to convert the years into months. So that will be quite easier. So, let's reduce this 6 years because it is easier to divide 6 years by 3. Now, let's convert the 2 years into months 24months 6 years and 24 months, that is already divisible by 3. That would be the duration or each period of reclusion temporal. So let's start with the minimum. Of course, you already know the minimum of 12years and 1day. Then you add the 1day in our formula, we disregard it. It is now 12 years +2 years and 8 months = 14years and 4 months The medium period starts from 14 years, 8 months and 1 day + 2 years and 8 months = 16 years, 16 months and 1 day. So we have transpose 12 months there to make that 17 years. You subtract 12 months. It becomes 4 months. It shall be 17 years and 4 months. Now, the maximum starts from 17 years, 4 months and 1 day, then you add again the same 2 years and 8 months. 17 years, 4 months and 1 day + 2 years and 8 months = 19 years, 12 months or exactly 20 years. Now, you find out if your answer corresponds to the duration of the penalty. Minimum of the minimum is 12 years and 1 day. The maximum of the maximum is 20 years. That is supposed to be the duration of the entire penalty. If you look at the table in Article 76. The answer is the same. The only penalty where our formula will not work is the penalty of arresto mayor. It will not tally. Let's try to demonstrate. Well, of course, arresto mayor has duration of 1 month and 1 day to 6 months. If you will look at Article 76, the official partitioning of arresto mayor, it says there the minimum starts 1 month and 1 day to 2 months, the medium is 2 months and 1 day to 4 months and the maximum is 4 months and 1 day to 6 months. We will apply our formula and try to find out whether our answer will be the same. 6 months maximum - 1 month minimum = 5 months. So, arresto mayor has duration of 5 months divided by 3. To make it easier, we will reduce this to 3 months and the 2 months to days. So 60 days, 3 months and 60 days divided by 3. 1 month and 20 days. That is supposed to be the duration. So, we will start. The starting point is 1 month and 1 day. 1 month + 1 month and 20 days = 2 months and 20 days. The medium is supposed to start from 2 months and 21 days + month and 20 days = 3 months and 40 days. Transpose 30 days equals 4 months. 40 days - 30 days = 10 days. The medium is supposed to end at 4 months and 10 days. The maximum is supposed to commence from 4 months and 11 days + 1 month and 20 days. 5 months and 30 days or exactly 6months. Now, you compare that with what Article 76. They do not tally. This is what Article 76 says. This is what the formula says. Now, conclusion the formula in the Penal Code is mathematically wrong, or inaccurate. But at any rate, that is the answer. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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ARTICLE 61. Rules for graduating penalties. For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code are to be imposed upon persons guilty as principles of any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1. When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degrees shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code. 2. When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. 3. When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. 4. When the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony or attempt to commit the same, and upon accomplices and accessories.

Sometimes it is easy because you just follow Article 71. What follows temporal? Prision Mayor. What follows Prision Mayor? Prision Correccional. But sometimes, it might be difficult to determine the graduation if the penalty is something different. So, Article 61 is the continuation of Article 50-57. 1.

When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degree shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 for this Code.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Suppose the penalty for the crime is death, which is mandatory. Single, it is indivisible. One degree lower is perpetua; another degree lower is temporal. The same thing with reclusion perpetua. This is just easy.

2.

When the penalty prescribed for the crime is compound of two indivisible penalties, or of one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale.

There is only one example. Reclusion perpetua to death. In the light of People vs. Roxas, perpetua is still indivisible penalty. That is the penalty for murder. That is the penalty for homicide, parricide. That is the penalty for robbery with homicide. Now, supposed I am only an accomplice where the penalty is 1 degree lower. What is 1 degree lower? According to Article 61(2), the penalty, which follows the lesser of the two. Now, which is the lesser of the two? Perpetua. What follows perpetua? Reclusion temporal. So, the penalty for an accomplice is reclusion temporal. Question: What is the penalty for the accessories? Answer: What follows reclusion temporal? Prision mayor. That's Rule #2 or when the penalty is composed of one or more divisible penalties. The penalty is composed of 2 divisibles for example when the penalty of the crime is prision mayor to reclusion temporal. It is the entire range of 6 years and 1 day to 20 years. That's the entire duration. Two divisibles combined. Now, what is the penalty for the accomplice? One degree lower. What is one degree lower? The penalty which follows the lesser of the two Prision Mayor. So the penalty which follows prision mayor is one degree lower. So, it's prision correccional followed by arresto mayor.

3.

When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and maximum periods of the proper divisible penalty and the maximum period of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale.

There is only one example that you can give there - reclusion temporal maximum to death, because death is indivisible. Reclusion perpetua is indivisible followed by reclusion temporal maximum, which is supposed to be divisible. So, that is the rule. The trouble is you cannot use it because under the Penal Code, there is only one crime, which carries that penalty - murder. But the trouble is the Heinous Crime Law changed the penalty of murder to reclusion perpetua to death. So, there is no crime in the Penal Code now which carries this kind of penalty.

4. When the penalty provided for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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prescribed and of the two next following which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. Reclusion temporal, how many periods? Three maximum, medium, minimum. What follows? Prision Mayor, maximum, medium, minimum. When the penalty prescribed of a crime is composed of several periods, corresponding to different divisible penalties, for example, the penalty for a crime is prision mayor maximum to reclusion temporal medium. How many periods? Three. The problem is that 2/3 belongs to reclusion temporal, while 1/3 belongs to prision mayor. So, two parts belong to reclusion temporal, 1 part belongs to prision mayor. What is one degree lower than that? The law says the penalty lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following. What follows prision mayor? Prision correccional. What follows now is the minimum period, which follows the maximum. So, medium plus the next two. That is the penalty for the accomplice. Follow the same pattern for the penalty for an accessory.

5. When the law prescribes a penalty for a crime in same manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony or of attempt to commit the same and upon accomplices and accessories. When the penalty for a crime is not among those mentioned in #'s 1 to 4 example the penalty for the crime is reclusion temporal medium to maximum, that is the range of 14 years, 8 months and 1 day to 20 years, and there are only two periods. What is one degree lower? By analogy, that of 1 degree lower is prision mayor maximum to reclusion temporal minimum. What is two degree lower? Prision mayor minimum to prision medium. What is 3 degree lower? Prision correccional medium to prision correccional maximum. So, by analogy, that is how you graduated penalties according to article 61. ILLUSTRATION. Suppose the penalty prescribed of a crime is reclusion temporal maximum and there are many crimes in the Penal Code with that kind of penalty. You apply only one, reclusion temporal maximum. So, the penalty is presently ranging from 17 years, 4 months and 1 day to 20 years. What is the degree lower? By analogy, reclusion temporal medium is already 1 degree lower. Not only period, it is 1 degree lower by itself. Reclusion temporal minimum is considered degree lower. So, two degrees already, by analogy. And of course what do you call that penalty? Reclusion temporal maximum. That is divisible penalty because it has fixed duration. And being divisible, it has its own minimum, medium, maximum for the purpose of mitigating and aggravating circumstances.

ARTICLE 62. Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency. Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules:

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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1. Aggravating circumstances, which in themselves constitute a crime especially punishable by law or 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. 2. The same rule shall not be taken into account for any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. 3. Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall not only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. 4. The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. 5.

Habitual delinquency shall have the following effects:

a) Upon a third conviction the culprit shall be sentenced to the penalty provided by the law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods. b) Upon a forth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he is found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period.

Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith shall in no case exceed 30 years. For the purpose of this article, a person shall be deemed to be habitual delinquent, is within a period often 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, he is found guilty of any said crimes a third time or oftener.

Aggravating circumstances have the effect of increasing the penalty. They have to be taken into account the purpose of increasing the penalty. However, Article 62 says in the following cases the aggravating circumstance is not taken into account anymore. Meaning, the aggravating circumstances will not affect the penalty anymore and there are three, based on this Article.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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When the aggravating circumstance constitutes the crime itself. Example: Arson. What constitutes the crime of Arson? When you destroy another person's property by fire. Now, under Article 14, one of the aggravating circumstance is when the crime is committed by means of fire. So, the use of fire under Article 14 will no longer be considered as aggravating in arson because it is the use of fire, which is the very crime of arson itself. When it is included in the definition of the crime. Example: The crime of robbery committed in the house, under Article 299. That is with the use of force upon things. When you enter the house to rob it, the fact that the crime is committed in the dwelling of the offended party is no longer aggravating because dwelling or the crime committed in the house is already included in the definition of the crime. In the crime of qualified theft, that the crime is committed with abuse of confidence by the offender is no longer aggravating because abuse of confidence is already an element of the crime of qualified theft. When it is inherent in the crime. Question: When is a circumstance inherent in a crime? Answer: When it must necessarily accompany the commission of the crime. Question: What are those? Answer: Examples are evident premeditation is not aggravating in robbery because when the robbers commit the crime, they have really planned it. So, it is already inherent. So, also in treason. Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall not only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant.

Example: A and B commit the crime together. A acted with evident premeditation B did not. Under the rules on evident premeditation, it only affects A and not B. Or, A and B commit a crime together. B acted with passion or obfuscation. A did not. B will be the only one credited with the mitigating circumstances, not A. Or, those which arise from the public relations of the parties. A conspired with B to rob the father of A. So, A conspired with a stranger to rob his own father. Now, relationship is a mitigating circumstance to A, but it will not favor B because B is not related to the victim. Or those which are personal to the offender. For Example: I will conspire with a 17-year old minor to commit a crime. Minority will favor him but will not favor me because I am not a minor. Or, I will conspire with A to commit a crime. I am a recidivist. He is a first offender. Recidivism will affect me but does not affect him. So when it comes to these circumstances, they will only affect the person concerned. Does this not violate the rule on conspiracy, that the act of one is the act of all? It does not. When the law says it in

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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conspiracy it simply means that we are all liable but the law does not say that in conspiracy your mitigating is also my mitigating or my aggravating is also your aggravating.

The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. Question: How about circumstances, which refer to the manner which the crime, are committed or the ways and means employed to commit the crime? Answer: It will affect the person who employed the ways and means and the accused that have knowledge of it. Example: I will hire a killer to murder X, paying the former P100, 000. I will leave to him the manner of killing X. He used treachery to kill the victim. Now, will treachery affect me because I m the one ordered him to kill but I have no idea of how he will do it. Now, under Rule #4, treachery will affect the killer, but it will not affect me because I have no knowledge. But suppose I will say you kill that guy but tell me exactly how you will do it. I will have to approve your method. So, I have the knowledge of the manner the crime is to be committed. Under #4, this affects my liability. Even it did not employ treachery; I will still be affected because I have the knowledge as to the ways and means employed.

Question: How #3 different from #4? Answer: In paragraph 3, the circumstance affect only the person concerned regardless of the fact whether he has knowledge or not. But if the circumstance affects the ways and means employed the knowledge although he did employ that manner will sufficiently affect him.

Habitual Delinquency This is the third instance of criminal repetition. The first two were recidivism and reiteration or individuality. A person is habitual delinquent if within a period of ten years from the date of his release or last conviction of the crime of serious or less serious physical injuries, robo, hurto, estafa, or falsification, he is found guilty of any of said crimes a third time oftener.

Elements: 1. there must be a third conviction; 2. the crime committed by the offender for the 3 rd, 4th, or 5th times should be among those mentioned in Article 62, like serious physical injuries, less serious physical injuries, theft, robbery, estafa an falsification; 3. there must be a time gap of not more than ten years between convictions.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Questions: When will you compute? What is the starting point in computing the period? Answer: The law says either from the date of final conviction or last release, because if you count it only from the last conviction, it will be more than ten years, but it still within ten years from release.

Question: What is the cut-off point of the period? Is it the conviction or is it the commission of the offense for the 2nd time? For example, it is now my 3 rd time to commit theft or robbery or estafa or falsification or serious physical injuries. It is my 3rd time within 10 years, so today is exactly the 10th year, but definitely, I will be found guilty not today. It will take time. So, if you will look at the date when I will be convicted, it will definitely be beyond 10 years.

Question: Is habitual delinquency applicable? Answer: NO. Because the cut-off point is not the date of the commission of the offense for the 3 rd or 4th time, but the date of the conviction for the offense. It is evident that the law says he is found guilty of any of the said offense a 3rd time. So, it is the cut-off period, the date of the conviction and not the date of the commission of the offense. Suppose I am found guilty of robbery as a principal - 1 st offense. On the 2nd offense as an accomplice, and the 3rd offense of robbery as an accessory. So, definitely the crimes I committed are all mentioned there. But for the three times that I have been found guilty of these crimes, I was in different capacities. Now, I am convicted for the 3rd time as an accessory.

Question: Am I habitual delinquent? Answer: YES. What is important is that I am found guilty to these crimes without regard to the manner of the participation, whether principal, accomplice or accessory. Suppose I was found guilty for the 1 st time of consummated robbery, then 2 nd time frustrated theft, 3rd time attempted estafa.

Question: Am I habitual delinquent? Answer: YES. The law does not care about the stages of the execution. What matters is the crime, regardless of whether it is attempted, frustrated or consummated. Now, under paragraph 5 or Article 62, where to culprit who is habitual delinquent commits less serious physical injuries, he will be penalized for such crime. But this time, the court will have to impose upon him an additional penalty. He shall be sentenced to an additional penalty, ranging from prision correccional medium to maximum and upon his 4th conviction, prision mayor minimum to medium.

You commit the same crime and you are convicted for the 5 th or 6th time. For every commission, the penalty should now range from prision mayor maximum to reclusion temporal minimum, a possible 10 ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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years and 8 months. So you will notice that the additional penalty given is higher by 1,000 or 2,000 times than the principal penalty.

Question: Is habitual delinquency a crime in itself? Answer: NO. Even if it carries a penalty. It is a sort of extraordinary aggravating circumstance which, if present in the commission of the felony, will call for the imposition of an additional penalty which is separate and distinct of the principal penalty for the present crime committed. Question: Can a person be a habitual delinquent and at the same time a recidivist? YES. For example, my first conviction is robbery; the 2 nd conviction is theft. Actually, upon the second conviction, I am already a recidivist. My 3 rd conviction is estafa. You will notice that the three offenses are all covered by Article 62. So, I am a habitual delinquent but I am also a recidivist because all crimes are embraced in the same title of the Penal Code. They are all crimes against property. So, I am both a recidivist and at the same time a habitual delinquent. Question: How will that affect the penalty? Answer: Simple. Since you are a recidivist, the penalty for present crime will have to be imposed in the maximum period. And because of habitual delinquency, additional penalty under Article 62. So, there is no conflict between the 2 sets of offenses. But the person can definitely also be a habitual delinquent without being a recidivist if no 2 crime out of the 3 are embraced in the same title of the Penal Code For example, 1st conviction is serious physical injuries, 2nd conviction is estafa, and 3rd conviction is falsification. You will notice that not one of the three is embraced under the same title in the Penal Code. A physical injury is against person. Estafa is against property. Falsification is against public interest. So, I am not a recidivist but definitely I am a habitual delinquent.

Question: Distinguish habitual delinquency form recidivism. Answer: RECIDIVISM Recidivism is broader. Any two offenses, all that are necessary is for the two offenses committed before and now are embraced in the same title of the Penal Code. The second conviction is sufficient to make a person a recidivist. There is no time limitation between the prior conviction and the present conviction. It could be twenty years ago. This simply maximizes the principal penalty for the new crime.

HABITUAL DELIQUENCY But to be a habitual delinquent, the crimes are more specific. These are all limited to those mentioned in Article 62. There must at least a third conviction. The time gap between the previous conviction and present should not be more than 10 years. This cause for the imposition of a separate and distinct additional penalty.

PEOPLE vs. KAPINITAN

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Issue: May the court admit evidence to prove habitual delinquency if the same was not alleged in the information and the evidence is previously objected to by the defense? Held: In a previous ruling, that of People vs. Partinada, the Court ruled that if recidivism is not alleged in the information, and it was vigorously objected to by the defense, the prosecution should not be allowed to prove it because it must be alleged in the information. Recidivism and habitual delinquency are almost the same. They belong to the same family. There is no reason why the ruling in Partinada will not apply. Hence, the trial court was correct in excluding the prosecutions evidence with respect to the aggravating circumstance of recidivism and habitual delinquency, because these were not alleged in the information and the presentation was objected to vigorously by the defense counsel. While it is true that to prove recidivism, it is necessary to prove the charge in the information and to attach thereto certified copies of the sentences rendered against the accused, such aggravating circumstance may still be given credit thereto by the trial court if the accused does not object to the presentation of evidence. It is written that this pronouncement applies specifically to recidivism. But we do not see any reason why this cannot be applied by analogy to habitual delinquency, which is also a form of plurality of crimes.

ARTICLE 63. Rules for the application of indivisible penalties. In all cases in which the law prescribed a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstance that may have attended the commission of deed. In all cases in which the law prescribed a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof: 1. When the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. 2. When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. 3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What happens if a person is sentenced of a heinous crime, which carries a penalty of death only? So, the penalty is single and indivisible, only one penalty. There are many crimes now heinous, which prescribe the penalty of only death, mandatory. Answer: It should be imposed by the court regardless of any mitigating or aggravating circumstance. So, there is no more effect of mitigating. Any ordinary mitigating circumstance can no longer lower it, even if you plea guilty. Even if you surrender, the court will impose the death penalty. Of course, you cannot also increase it because it is the highest. The same situation applies if the penalty of the crime is perpetua because it is still considered as indivisible. It shall be imposed by the court regardless of any mitigating or aggravating circumstance. Question: What happens if the crime carries reclusion perpetua to death? What is now the effect of mitigating or aggravating? Answer: It depends. If there is an aggravating circumstance, you impose the higher penalty, like death. If there is a mitigating circumstance, and no aggravating circumstance, you impose lower of the two perpetua. If there are two mitigating and no aggravating, you still impose perpetua. So, in other words, either the higher or the lower, upstairs or downstairs. But it shall not go lower. The only way of lowering this to the penalty much lower in degree is by privilege mitigating circumstance. Ordinary mitigating has no more effect. This is the reason cited by the SC in the second lucas decision, because in the original decision, the SC ruled that perpetua is already divisible penalty. But upon reconsideration by the SC en banc, it ruled despite RA 7659, which says that perpetua has duration of 20 years and 1 day to 40 years, it remains an indivisible penalty. Then the SC cited, as one of its reasons, Article 63, when the penalty for the crime is composed of two indivisible and there is only one example, perpetua to death. Now, if you will say that perpetua is divisible, then Article 63 becomes obsolete.

ARTICLE 64. Rules for the application of penalties, which contain three periods. In all cases in which the penalties prescribed by the law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provision of Article 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstance: 1. When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. 2. When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period. 3. When both mitigating and aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. 4. When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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5. 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. 6. Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. When the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the civil produced by the crime. Example: The crime is punishable by prision mayor minimum, medium, maximum period. No mitigating, no aggravating. According to article 63, the penalty should be somewhere within the medium period. That would be ranging from 8 years and 1 day to 10 years. If there is a mitigating, the penalty should be fixed somewhere in the minimum period. On the other hand, if there is an aggravating, it should fixed within the maximum period of prision mayor. Just like that. It all depends on any mitigating or aggravating. Now, if you know them try to offset them with each other. And after offsetting, try to find out if there is a balance in favor of either mitigating or aggravating. If there is no balance, then you apply Rule #1. It should be within the medium.

When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. For example, Vhenigna Vangkbiyud was convicted of homicide. The trial court appreciated the following modifying circumstance:     

The aggravating circumstance of nocturnity The mitigating circumstance of passion and obfuscation The mitigating circumstance of no intent to commit so grave a wrong Illiteracy Voluntary surrender

The imposable penalty for homicide is reclusion temporal, the range of which is 12 years and 1 day to 20 years. Taking into account the attendant mitigating and aggravating circumstances and applying the Indeterminate Sentence Law, determine the proper penalty to be imposed upon the accused. You can fix the maximum. There is 1 aggravating. But the mitigating are many - 4. What is the penalty? If we apply paragraph 4, 1 mitigating offset the aggravating. So there is a balance. And there is still 3 mitigating left. The penalty should be lowered by one degree because according to paragraph 5, when there are two or more mitigating circumstance, the court shall impose the penalty next lower that prescribed by law. But this will not apply because the law says two or more mitigating and no aggravating is present. So, when there is one aggravating, paragraph 5 will not apply.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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In other words, the correct penalty there is paragraph 2 - the penalty should be in the minimum period. The condition laid down in paragraph 5 for the lowering of the penalty by 1 degree if there are 2 or more mitigating circumstances without any aggravating is not present. The law is very clear. So, for example, when the crime, punishable by reclusion temporal, was committed there was voluntary surrender, passion or obfuscation, no aggravating circumstance is present, paragraph 5 should be applied. The penalty should be lowered to prision mayor, 1 degree lower. However, since the problem states that there is an aggravating circumstance of nocturnity, paragraph 5 can no longer apply. In other words, the penalty should still remain within the range of reclusion temporal. Now, suppose it is the other way around. There are 2 or more aggravating without any mitigating. Should the penalty be increased by 1 degree? No, because of paragraph 5. No matter how many aggravating circumstances are present, you cannot increase the penalty by 1 degree higher. The complete definition of aggravating circumstance is, if present in the commission of the crime, will call for the imposition of the maximum penalty without exceeding the penalty prescribed by law. Question: What happens of the penalty should be within the medium period of prision mayor - 6 years and 1 day to 10 years? Answer: According to paragraph 6, the court should sentence the accused to a specific penalty stating the exact number of years, months and day within that range. Therefore, I can sentence him to 6 years and 1 day. That is the least I can sentence him to 10 years, or any combination within. So, practically there are 700 possibilities. The SC has once said that the court should be careful in fixing penalties because any error may have varied consequences, like in a case where the prison term imposed upon the accused has been increased erroneously, to unduly prolong the confinement of the accused even for just one day is unjust in every sense of the word. Take note that in divisible penalty, there should be a minimum, medium and minimum for the purpose of applying Article 64.

Question: Can we apply Article 64 to the crime of drug pushing? Answer: Now, technically the provisions of Article 64 does not apply to special laws except when that special law adopts the nomenclature of the penalties in the Penal Code. When the special law starts to use perpetua temporal, then the provision of the RPC will now apply. On the other hand, when the special law says the penalty is 1 year and 10 months, obviously, this will not apply. In other words, there is no perpetua or prision mayor or 1 degree lower in special laws. Because the rule on aggravating or mitigating is only peculiar to crimes under the Penal Code with their own distinct names for penalties. When the special law adopts the penalties in the Penal Code, the provisions of the RPC. That is very clear in the case of People vs. Simon because before the Heinous Crime Law, the penalty for drug pushing was life imprisonment to death, but under the Heinous Crime Law, the penalty is reclusion perpetua to death. So, it adopted now the rules in the Penal Code and there is a distinction ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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between reclusion perpetua and life imprisonment. That is why the provisions of the RPC on the penalties will now apply to the Dangerous Drugs Act.

Question: How about the illegal possession of firearms? The simple illegal possession under PD 1866, the penalty is reclusion temporal in the maximum period to reclusion perpetua. Now, can we apply Article 64 there? What is the maximum, medium, minimum period? Answer: The only solution there is this perpetua is indivisible. That should be the maximum penalty, the maximum period. Now, reclusion temporal maximum is actually a divisible penalty. It has a range of 17 years, 4 months and 1 day to 20 years. The medium and the minimum must necessarily come from that penalty. How do you do it? By splitting the upper part and the lower part. 20 years minus 17 years and 4 months. We will have to make this 19 years and 12 months minus 17 years and 4 months. The difference is two years and 8 months. Divide it into two: 1year and 4 months. Therefore, the minimum years should range from 17 years, 4 months and 1 day to 18 years and 8 months. And then to continue, it is 18 years, 8 months and one day to 20 years. That is the medium. The lower part is the minimum: the upper half is the medium. Perpetua: which you cannot split is the maximum. That is the solution.

PEOPLE vs. MISAL 244 SCRA 166 The formula adopted by the Supreme Court to apply Article 64 is: The penalty for the single illegal possession of firearms is reclusion temporal maximum to reclusion perpetua. The maximum period perpetua; the medium is the upper half of reclusion temporal maximum. The minimum is the lower part of the reclusion temporal maximum.

ARTICLE 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking.

When you commit a crime and there is an incomplete justifying or incomplete exempting circumstance, the penalty should be lowered by 1 or 2 degrees.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: So, what is Article 69? Answer: It is a privilege mitigating circumstance where the penalty is lowered by at least one degree. But this is just a repetition of Article 13, paragraph 1. Under Article 13 on mitigating circumstance, the first mitigating circumstance is incomplete justifying, incomplete exempting and it is also a mitigating circumstance with one difference. In Article 13, incomplete justifying exempting is only an additional circumstance, whereas in Article 69, it is a privileged mitigating circumstance. A perfect example is self-defense, where not all requisites to justify the act are present. So, incomplete self-defense. You are charged with homicide. Your claim is self-defense. You were able to prove some requisite, but there is lacking - less than three. Applying Article 69, the penalty for you, you should be convicted for homicide but the penalty should be lowered by 1 or 2 degrees. Assuming only 1 degree, so from reclusion temporal, you will be penalized to prision mayor. If we apply Article 13 to you, the penalty should be within the range of reclusion temporal minimum and such incomplete self-defense can be offsetted by an aggravating circumstance. If we apply Article 69, you penalty will go down to prision mayor or even as far down to prision correccional and incapable of offsetting by an aggravating.

Question: Which will prevail: Article 69 or Article 13(1)? Answer: No one will prevail. Sometimes, Article 69 applies; sometimes Article 13(1) applies.

Question: When will Article 13(1) apply, or when will Article 69 apply? When will incomplete justifying or incomplete exempting be treated as privileged, when will it be treated as ordinary mitigating? Answer: The clue is in Article 69. We apply Article 69 when the majority of the requisites are present. Majority. So in self-defense, two out of three. So, incomplete self-defense becomes a privileged mitigating circumstance.

ARTICLE 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provision of the paragraph next to the last of Article 80 of this Code, the following rules shall be observed: Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at lest than that prescribed by law for the crime which he committed. Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Suppose, the judge will say I will not give you to degrees lower because you are incorrigible. Question: Is the judge correct? Answer: The judge is wrong. The fact that the minor is incorrigible is not a ground to deny him of the benefit of Article 68. Being incorrigible is only a ground to nullify the suspension of the sentence. If he is incorrigible in the rehabilitation center, it is not a ground to deny him of the benefit of Article 68.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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ARTICLE 70. Successive service of sentence. When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed: In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted, as to the penalty or penalties first imposed, or should they have been served out. For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. profession

Death, Reclusion Perpetua, Reclusion Temporal, Prision Mayor, Prision Correccional, Arresto Mayor, Arresto Menor, Destierro, Perpetual Absolute Disqualification, Temporal Absolute Disqualification, Suspension from public office, the right to vote and be voted for, the right to follow a

or calling, and 12. Public Censure.

Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. Ho other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. Such maximum period shall in no case exceed forty years. In applying the provision of this rule the duration of perpetual penalties (pena perpetua) shall be computed at thirty years.

If allowed, they should be served simultaneously. If not possible or there nature will not allow it, then serve them successively. Meaning, one after the other.

Question: What penalties can be served simultaneously? Answer: Those, which are possible to be served simultaneously. For example, in one crime, I was sentenced to 6 years of prision correccional. On other crimes, I was sentenced to 15 years of temporary disqualification, or 20 years of absolute disqualification. There is no imprisonment in disqualification, but your right has been suspended. Is it possible for me to serve simultaneously? Yes. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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But there are penalties, which you cannot serve simultaneously because their nature will not allow it. For example, for one penalty, you are sentenced to 2 years of prision correccional. For another penalty, you are sentenced for 2 years of destierro. How can you be outside the jail and at the same time within the jail? So, it is not allowed. Or, if all of them are of the same nature, all imprisonment. Alright…for this crime 6 years of prision correccional, this one 4 years, another one 1 year, then the 6 months of arresto mayor, 40 days of arresto menor. They are all the same however, you cannot say that tomorrow, I will serve the prision correccional, the other day I served arresto menor, etc… you cannot do that. Meaning, after you are in jail for one day, you re only for one day for one penalty. So, these are the instances where the penalties would not be served simultaneously. So, what will happen? You serve them successively, one after the other.

Question: How will I serve them? Answer: You serve them in order of severity.

Severity For example, "Miss Vhenigna Vangkhiyud, you are sentenced to death. Another crime, you are sentenced to 20 years of reclusion temporal. Still another crime, you are sentenced to 5 days of arresto menor.

Question: Which should be served first? Answer: You first serve the death penalty.

Question: Now, what happen to the reclusion temporal, to the arresto menor? Answer: Never mind you are already dead! It is not the other way around. You start from the most severe going down. So, that is the order of service. However, this is subject to the three-fold rule. According to the rule, the maximum stay in jail for a person should not exceed the most severe multiplied by 3. For example, for one offense, you are sentence to 1 year of prision correccional. Another offense, 6 months of arresto mayor, another offense 5 months. And then for another offense, you are sentenced to 8 months. Another crime 8 months, another crime 5 months, and still another crime 5 months. Now, if we are to let him serve the sentence one after the other, what is the total? Four years and two months. So, that is you penalty if you will serve them one by one. But if you look at the most serious, you multiply that by 3, so shorter by 1 year and 2 months. Under the three-fold rule, after serving three years, you should be released. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: What happens to the 1 year and 2 months? Answer: It is as if served already. This is for the benefit of the convict. Therefore, the three-fold rule does not apply when the application of the rule will not benefit the convict.

For example, a penalty of one year for a crime, another crime is 6 months; another crime is 2 months, 3 months and 1 month. Adding these all up totals two years. So, if you will apply the three-fold rule, six years. If served one after the other, only two years. So, instead of shortening, you are prolonging. That is an instance of misapplication of the three-fold rule.

Not, suppose a person was found guilty of five counts of murder. He was sentenced to 25 years of reclusion perpetua for every murder. The total is 125 years. So, if we will apply the three-fold rule, it would be shorter than 50 years. Now suppose he will survive. Will he be released, applying the three-fold rule? No, because of the second to the last paragraph states, such maximum period shall in no case exceed 40 years. Meaning, after 40 years, he should be released. What happens to the remaining years? Never mind it.

Under the RPC, there is no such thing as imprisonment for life. Because this article is automatic. Even if I will sentence you for 100 times of reclusion perpetua, after 40 years you should be released because of this provision. So, technically, under the RPC, there is no such thing as perpetual imprisonment, except the perpetual disqualification, which, according to Article 41, will be for the rest of your life.

ARTICLE 41, RPC. Reclusion perpetua and reclusion temporal, their accessory penalties. The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in pardon.

That is why every country has its own system of penalties. Our System is different form other Asian countries. There are 3 systems of penalties, which are recognized. One system is called "MATERIAL ACCUMULATION SYSTEM." Meaning, if you commit 2 or more crimes and you are sentenced to 2 or more penalties, you have to serve all of them, even if it goes beyond the rest of your life. Literally, you will die in jail of old age. If you will not die after serving them all, you will be released. If you will die earlier, it's ok. But that is practically saying there is no hope for you.

Another system is called "JUDICIAL ACCUMULATION SYSTEM”. When you reach a certain point, you should be released already.

The third system is the "ABSORPTION SYSTEM". You only serve the highest penalty. The minor penalties are deemed absorbed by the service of the highest penalty. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Which of the 3 is recognized by the RPC? Answer: All of the 3 re recognized. 1.

The accumulation system is evident in the first part of Article 70. That when the nature of penalties will not allow a continuous service, he should serve them in the order of severity. He should serve them simultaneously under the material accumulation system.

2.

The judicial accumulation system is manifested in the 2 nd part of the Article 70 - the three-fold rule. That the maximum system should not exceed the most severe multiplied by 3 and in no case should a person be confined for more than 40 years.

3.

The "absorption system" is manifested in Article 48 - the penalty for the complex crimes. The penalty for the complex crimes is based on the higher offense to be imposed in the maximum period.

Question: What happens to the penalty for the lower offense? Answer: No more. It is absorbed. You only serve the highest penalty for the complex crime. So the 3 systems are all recognized in the RPC.

ARTICLE 48, RPC. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied to its maximum period. Let us compare the order of penalty with the graduation of penalty.

ARTICLE 71, RPC. Graduated Scales. In case in which the law prescribed a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty. The courts, in applying such lower or higher penalty, shall observe the following graduated scales:

Scale No. 1 1. 2. 3. 4. 5. 6.

Death Reclusion Perpetua Reclusion Temporal Prision Mayor Prision Correccional Arresto Mayor

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Destierro arresto Menor Public Censure Fine

Scale No. 2 1. 2. 3.

Perpetual Absolute Disqualification Temporal Absolute Disqualification Suspension from Public Office, The Right to Vote and to be Voted for, The right to follow a Profession or Calling 4. Public Censure 5. Fine

In Article 70, the sentence of penalties from Mayor down is Arresto Menor and Destierro. If you will look at article 71, there are differences. It's in the reverse.

Question: What penalty follows arresto mayor? Answer: The correct answer is under Article 70, it is arresto menor followed by destierro; whereas in Article 71, it is destierro followed by arresto menor.

Question: Is there a conflict between these two articles? Answer: There is no conflict because these 2 are talking of 2 different topics. In Article 71, the issue is graduation of penalties; whereas in Article 70, the issue is successive service of sentence. Example: A, B, and C are charged criminally. A as principal, B as accomplice, and C as accessory. Suppose, all of them are found guilty. The penalty for A is arresto mayor. What is the penalty for B as an accomplice and C as an accessory? What article do we have to apply there? Article 70? Or Article 71? So, the issue in the above problem is not that whether you are sentenced to two or more penalties, but the issue is what is one degree or two degrees. So, the article to apply there is Article 71, because the issue is graduation - what is one degree or two degrees lower. So, based on that, the answer is: B as an accomplice should be sentenced to the penalty of destierro; whereas C, as an accessory, should be sentenced to arresto menor. I you will apply Article 70, it is reversed. It is now the accomplice who will be sentenced to arresto menor and the accessory will be for destierro. So, since that is the problem, the issue there again is the graduation of penalty and not the successive sentence. Next, A is charged criminally for three separate offenses, and he was found guilty in all of the crimes. For one crime, the court sentenced him for 6 months or arresto mayor. For the second crime, the ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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court sentenced him for 6 years of destierro, and for the third crime, he was sentenced to 5 day of arresto menor. Question: How will A serve these penalties? That is not graduation, but that is the succession of sentences. Answer: So, he has to serve first the penalty of 6 months of arresto mayor. After that, he has to serve 5 days of Arresto Menor. After that, he will now serve the penalty of destierro. So, we will not apply Article 71 because what is asked is service of sentence. So, this answer depends on what the question is. Question: Now, why is that in Article 71, destierro is higher than arresto menor? Answer: It is because destierro is a correccional penalty, while arresto menor is a light penalty. Obviously, a correccional penalty ranks higher than a light penalty. Very simple. Question: Why is it that Article 70, it is the reverse? Arresto Menor, which is a light penalty comes first before destierro which is correccional penalty. Why? Answer: Destierro is a correccional penalty and does not involve the imprisonment, but only banishment. Our common sense will tell us that the penalty, which consists in the deprivation of freedom, is more severe than a penalty, which is not confinement. ARTICLE 66. Imposition of fines. In imposing fines, the courts may fix any amount within the limits established by the law; fixing the amount in each case attention shall be given, not only to the mitigating and aggravating circumstances, but more particularly to the wealth or means of the culprit. Question: Are fines divisible into periods? Minimum, medium or maximum? Answer: NO. Fines are not divisible into periods. Question: Can they be graduated into degrees? 1 degree lower, 1 degree higher? How do they graduate fine by degrees? Answer: It is found in Article 75.

ARTICLE 75. RPC: Increasing or reducing the penalty of fine by one or more degrees. Whenever it may be necessary to increase or reduce the penalty of fine by one or more degrees, it shall be increased or reduced, respectively, for each degree, by one-fourth of the maximum amount prescribed by law, without however, changing the minimum. The same rules shall be shall be observed with regard of fines that do not consist of a fixed amount, but re made proportional.

ARTICLE 77. When the penalty is a complex one composed of three distinct penalties. In cases in which the law prescribes a penalty composed of three distinct penalties, each one shall form period, the lightest of them shall be the minimum the next the medium and the most severe the maximum period.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Whenever the penalty prescribed does not have one of the forms specially provided for in this Code, the periods shall be distributed applying by analogy the prescribed rules.

Question: What is a complex penalty? Answer: a complex penalty is a penalty prescribed by law for a complex crime, which is based on the higher offense to be imposed on its maximum period. This definition sounds correct, but it is wrong. A complex penalty has nothing to do with complex crime. According to article 77, a complex penalty is a penalty composed of three distinct penalties each one shall form a period. The best example is the penalty for the crime committed by a resident alien, under Article 114, last paragraph. Treason may be committed by a Filipino citizen or a resident alien.

Question: Suppose, a person who committed treason is an alien, but residing in the Philippines. Under Article 114, last paragraph, what is the penalty for that crime? Answer: The penalty for a resident alien who commits treason is reclusion temporal to death. So, there are 3, but in one penalty. In effect there are 3 penalties.

Question: Is that divisible? Answer: Yes, under Article 77, that is divisible penalty.

Question: What is the maximum period? The minimum? Answer: According to Article 77, the lightest of them shall be the minimum. The next, the medium, and the most severe is the maximum. With that, you can apply the effect of mitigating or aggravating circumstances under Article 64. If there is no mitigating, the penalty should be reclusion perpetua. If there is aggravating, the alien will be sentenced to death. And if there is mitigating and no aggravating, the penalty should be in the range of reclusion temporal.

Question: What do you mean by degree, and what do you mean by a period? What do you mean by a degree under the law on penalty and what do you mean by a period? When is a period considered a degree and when is a degree considered a period? Answer: A degree is a given penalty. It is the penalty prescribed by law for the offense. Like for example, reclusion temporal. That is one degree. Prision mayor, that is another degree. Prision correccional, another degree.

Question: What is a period? Answer: A period is 1/3 portion of the divisible penalty. For example, reclusion temporal, there are 3 parts:  Reclusion temporal maximum ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Reclusion temporal medium Reclusion temporal minimum

Whenever the penalty prescribed does not have one of the forms specially provided for in this Code, the periods shall be distributed applying by analogy the prescribed rules. So, reclusion temporal is a degree, reclusion temporal maximum is a period. Reclusion temporal medium is another period. Question: When is a period treated a degree? And when is degree treated as a period? For example, a Crime punishable by reclusion temporal in its maximum period. Answer: For that crime, reclusion temporal maximum is not a period, but a degree. That is why, in determining what is one degree lower under Article 61, the medium is one degree lower. That is not a degree. That is why, it will have its own period. This is when a period becomes a degree.

Question: When is degree treated as a period? Answer: Death is normally is one degree. Reclusion temporal is still another degree. But in situations enumerated in Article 77, the three of them together as one and each part is a period.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Chapter Five Execution and Service of Penalties Section One General Provisions

ARTICLE 78. When and how a penalty is to be executed. No penalty shall be executed except by virtue of a final judgement.

A penalty shall not be executed in any other form than that prescribed by law, not with any other circumstances or incidents than those expressly authorized thereby. In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the penalties are to be suffered shall be observed with regard to the character of the work to be performed, the time of its performance and other incidents therewith, the relations of the convicts among themselves and other persons, the relief which they may receive and their diet. The regulations shall make provisions for the separation of the sexes in different institutions, or at least into different department and also for the correction and the reform of the convicts.

ARTICLE 79. Suspension of the execution and service of the penalties in case of insanity. When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of the said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance no. 1 or Article 12 being observed in the corresponding cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall prescribed in accordance with the provisions of this Code. The respective provisions of this Section shall be observed if the insanity or imbecility occurs while the convict is serving the sentence.

We have to wait that the judgement will become final. In case of an appeal, you cannot force the accused to serve his sentence. Question: When will the execution of the penalty be suspended? What is the ground for suspending a penalty? Answer: According to Article 79, in the course of serving the penalty or the portion of the penalty, the accused becomes insane. We do not penalize in a penal institution the person who becomes insane. He

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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should be brought to the mental hospital for the recovery of his insanity. And once he recovers, he has to continue serving penalty. Question: State the legal effects of insanity of the accused. Answer: The answer should be based on the questions. When it will take effect? When did he become insane? When he is insane at the time he commits a crime, he is exempt. Suppose, he was normal, but when he is charged in court, he becomes insane. Meaning, he became insane after the information was filed. He is no longer exempted. Question: But can we proceed for the trial of this guy? Answer: Definitely, we cannot. Question: So, what is the effect? Answer: Under Criminal Procedure, in Rule 116, that is a ground for the suspension of an arraignment of the accused on the ground of insanity.

Question: Now what happens if the accused was sane, but after he was arraigned, he become insane? Answer: That is a ground to suspend the trial until he recovers because otherwise, it will violate his right to defend himself, to present his evidence. And he is not competent to testify. So, his rights will be violated if we will continue the trial. Question: Suppose, he became insane when he was already sentenced? What is the effect? Answer: Article 79. It is a ground to suspend the execution or service of the penalty.

ARTICLE 81. When and how the death penalty is to be executed. The death sentence shall be executed with reference to any other and shall consist in putting the person under sentence to death by electrocution. The death sentence shall be executed under the authority of the Director of Prisons, endeavoring so far as possible to mitigate his sufferings of the person under sentence during the electrocution as well as during the proceedings prior to the execution. If the person under sentence so desires, he shall be anaesthetized at the moment of electrocution.

This article is already amended, like the manner of execution - from electrocution to lethal injection. But some of the parts are still true. The death sentence should be carried out not later than 1 year after the judgement has become final. Within 1 year, it should be carried out. Unless he will be pardoned by the President or commute his sentence. So, there will be no prolonged delay. The law says the death sentence shall be executed with preference to any other. This jibes well with Article 70. In executing 2 or more penalties, you start at the most severe, going down to the less severe. And

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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therefore, if a person is sentenced to death for one crime, and 5 days for arresto menor, you do not start with arresto menor going to death.

PEOPLE vs. JOSE Facts: Four boys, one of them a Bosconian, were charged with rape of Maggie de la Riva. Each of them was charge four times. That is the law on multiple rape. You are not only liable for raping the victim, but also to the other rape where you helped your co-accused. So, all of them were found guilty by the trial court. All of them were meted the penalty of death penalty. The trial court said that legally speaking; each of them should be sentenced to death 4 times because they have been found guilty of rape for four counts. One rape is one death penalty. So, each of them should be sentenced to death four times, but since they have only one life to give, the court cannot sentence them four times. So, the court is saying that despite the fact that they deserved to be sentenced for four times, the court sentenced them to death only once. Held: The Court on appeal affirmed the decision and sentenced them to death four times. The other three death penalties are not useless. It has the effect when the President pardons a convict. Thus, the convict is not really spared from death even if pardoned because there are still three death penalties to be observed. The president has to pardon the convict to be spared from the death penalty. This provision about sentencing a person for two or more death penalties, if he deserves it, is a check on the pardoning power of the president. Now, who is this kind of president who will risk his neck and political popularity four times to you? He will not risk his reputation before the Filipino people by pardoning the convict. He might risk only once. To say that the four penalties could not be carried out because it is impossible to carry out 4 times is also wrong. It can be carried out four times because under Article 70, when a person is sentenced to two or more penalties, he will serve them SIMULTANEOUSLY, unless it is not possible. When you are sentenced to four death penalties, and you are lethally injected, that is a simultaneous service of the four penalties.

ARTICLE 83. Suspension of the execution of the death sentence. The death sentence shall not be inflicted upon a woman within the 3 years next following the date of the sentence or while she is pregnant, nor upon ant person over 70 years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40. In all cases where the death sentence has become final, the records of the case shall be forwarded immediately by the Supreme Court to the Office of the President for possible exercise of the pardoning power.

Question: When should the death penalty be suspended? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: There are 3 instances: 1. 2. 3.

If the woman is pregnant - let us not kill the fetus. It is the mother who is guilty, not the child. A woman within 1 year after delivery - Let us allow her to nurse the child. After 1 year, after she delivered the baby, let us kill her with impunity. When the convict is over 70 years old.

ARTICLE 47, RPC. In what cases the death penalty shall not be imposed. The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below 18 at the time of the commission of the crime, or is more than 70 years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which case the penalty shall be reclusion perpetua.

Question: Now, how do you compare Article 47 from Article 83? Answer: In Article 47, when the accused is over 70 years of age, he should not be sentenced to death. There should be an automatic commutation to reclusion perpetua. In Article 83, when the accused is over 70 years of age, the death penalty should be suspended. So there will only be suspension of sentence. Question: Now which is which? Will it be a permanent reprieve from a death penalty under Article 47, or will there be a suspension? Is there a conflict between Article 47 and Article 83? Answer: It could be both, the reprieve or suspension. Suppose you were 69 years old when the lower court convicted you. You appealed but it was affirmed. You are safe when the judgment becomes final. Under Article 47, it should be commuted to reclusion perpetua. But the president has to commute it, it is not automatic. While we are waiting for his official act, the execution will be suspended. That is how to reconcile Article 47 and Article 83. Question: When a minor, who is below 18 years of age, his minority could either be mitigating or Privileged mitigating. How about 70 years old. Is it ordinary mitigating or privileged mitigating? Answer: Under Article 13, over 70 is only ordinary mitigating. It is not considered as privileged. Except only when a person over 70 years of age will be sentenced to death and because of Article 47, it will be commuted to reclusion perpetua. So, in that case, it will have the effect of the privilege. But that’s the only instance. If he is sentenced to reclusion perpetua, it will not be commuted. Old age could never be a privileged mitigating, except when the impossible penalty is death. Because under Article 47, it has to be commuted automatically to one degree lower.

ARTICLE 87. Destierro. Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor with in the radius therein specified, which shall not be more than 250 and not less than 25 kilometers from the place designated.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: How do you classify destierro? Answer: Actually, it is a correccional penalty, which has the same duration as prision correccional. It is not less than 6 months and 1 day to 6 years. The court will tell you that you are not allowed on that particular place, within that particular period (6 months and 1 day to 6 years). Question: What is that radius? Answer: The court will specify that you are not allowed to enter the radius of not more than 250 kilometers or the minimum, not less than 25 kilometers.

ARTICLE 88. Arresto menor. The penalty of arresto menor shall be served in the municipal jail, or in the house of the defendant himself under the surveillance of an officer of the law, when the court so provides in its decision, taking into consideration the health of the offender and other reasons which may seem satisfactory.

Question: Where will you serve it? Answer: They do not bring you to the Davao Penal Colony for one day. It could be served in the city jail, or in the municipal jail, or even in the residence of the accused, under the city jail, or in the municipal jail, or even in the residence of the accused, under the surveillance of the police officer. But the judge will have to provide for a valid reason.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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INDETERMINATE SENTENCE LAW ACT 4103

SECTION 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum period of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by another law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum term fixed by said law and the minimum shall not be less than the minimum term prescribed by the same.

Section 1 states that the application of the Indeterminate Sentence Law is mandatory. What the law says is if a person is found guilty of a crime, a sentence should cover a certain range. There should be a maximum and a minimum.

Question: What happens with the medium period? Answer: There is no such thing as a medium sentence because the word maximum here does not carry the same meaning as maximum period in divisible penalties.

Question: What is the procedure? Answer: First, the court should determine the maximum. This is done by applying the RPC.

Question: What is the consideration? Answer: There are so many. You take into consideration what is the penalty for the crime, whether it is frustrated or attempted. So, you have to apply graduation of penalties - one degree, two degrees. Whether the accused is a principal, accomplice or accessory to the crime. Second, are the privileged mitigating circumstances? The application of Articles 68 and 69. And then, the application of ordinary mitigating…in Article 64. You have to exhaust first all known provision of the RPC in finding the maximum sentence. And then, after you have determined the maximum, the next step is to determine the minimum sentence. You do not look for the minimum and then go to the maximum. You have to look first for the maximum before you look for the minimum.

EXAMPLE: A is accused of Homicide, as principal. He was found guilty. There was no mitigating circumstance in his favor. There was also no aggravating. Now, impose the proper penalty under the RPC and Indeterminate Sentence Law. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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So we will find out in the case of homicide the penalty is reclusion temporal with its 3 periods: Minimum Medium Maximum

: : :

12y 1d 14y 8m 1d 17y 4m 1d

to to to

14y 8m 17y 4m 20y

So, we will determine. Homicide is punishable by reclusion temporal and in the problem there is neither mitigating nor aggravating. Applying the RPC, the penalty should be within the medium. As judge, you now have to impose the exact numbers - the years, the months and the days. You can give him 14 years, 8 months and 1 day. That is the best. But you can impose upon him 17 years and 4 months. That is the worst. Or any combination in between. So, for example, the court says, I will sentence you to 14 years 8months and 1 day because I'm very liberal. That will now be maximum sentence. The next step will be finding the minimum. The law says that the minimum should be within the range of the penalty next lower in degree. So what is the penalty next lower in degree to reclusion temporal? It is prision mayor. And what is the range of prision mayor? It is 6 years and 1 day to 12 years. The law says that you must now impose the minimum within the range of 6 years and one day. So it would be 6 years and 2 days, etc.. up to 12 years. Now we will say that the court will give him the best thing. I will give you now 6 years and 1 day of prision mayor to 14 years 8 months and 1 day or reclusion temporal.

Question: Since there is no mitigating, there is no aggravating, should we not divide prision mayor also into 3 parts - minimum, medium, maximum? Meaning if the maximum is with the range of reclusion temporal medium, the minimum should also be within the range of prision mayor medium? Answer: NO. In other words, Article 64 is only for the maximum. Here, the discretion of the judge is wider - the range of the entire penalty without regard to any period. So the best thing that you can get is the indeterminate sentence ranging from 6 years and 1 day of reclusion temporal as maximum. Or the worst thing - 12 years of prision mayor as minimum to 17 years and 4 months of reclusion temporal as maximum. That will now be a penalty.

Question: Suppose A was found guilty of homicide with one mitigating circumstance. What will the penalty? Answer: Applying Article 64, if there is a mitigating circumstance, the penalty should be within the minimum period. The best thing is 12 years and 1 day as maximum.

Question: What is the minimum? Answer: The same answer. That will be 6 years and 1 day of prision mayor as minimum. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Or if there is an aggravating circumstance, apply Article 74 to the maximum of the reclusion temporal. It will now become 17 years, 4 months and 1 day to 2 years and the minimum is the same - 6 years and 1 day. Example: A is sentenced to 6 years and 1 day of prision mayor as minimum to 17 years and 4 months of reclusion temporal as maximum. You are now serving.

Question: What happens after 6 years and 1 day? Can you demand a release? Answer: NO. You cannot demand such because that is not really you sentence. Your sentence is 17 years and 4 months. There is only a minimum under the Indeterminate Sentence Law. The real penalty is 17 years and 4 months.

Question: So what is 6 years and 1 day for? Answer: When you reach 6 years and 1 day, the minimum you re now qualified for parole. If you go to the Board of Pardon and Parole, you will be considered. You will be released through parole. But you have to comply with certain conditions. At least you can enjoy with the society. If you violate the conditions, you will be arrested to finish your sentence. Remember that you will not be automatically paroled. You are only a candidate for parole. But whether you are paroled or will depend also on your stay with 6 years and 1 day. If for example during the 6 years and 1 day your record is very bad, you cannot be paroled. It will depend now on how you behave. Now, supposed 6 years and 1 day have passed. It is now the 7 th years and no parole yet I favor for you until the 7th year. There you will be released because you have reached you maximum. That is the meaning of the Indeterminate Sentence Law. Question: What is the purpose for this? Answer: According to the SC in the case of People vs. Docusin, the purpose of Indeterminate Sentence Law is to uplift and redeem the value of all human material and to prevent unnecessary and excessive deprivation of personal liberty and economic usefulness. That is the exact language of the SC. To simplify this, the individual even during his sentence can be useful to society. When paroled, he is not anymore in jail, but can mix with the community, look for a job and feed his family. And also for this reason, the government is benefited. It would lessen the inmates in the jails thereby lessening mouths to feed and decongesting prisons. Now, under the Indeterminate Sentence Law, do not start from the minimum period going up to maximum period because the maximum might still go down or go up.

Question: How do you determine the maximum? Answer: By applying all the applicable provisions of the RPC.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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PROBLEM: X is accused of a complex crime of homicide with less serious physical injuries. Take note that homicide is punishable by reclusion temporal. Less serious physical injuries are punishable by arresto mayor. However, it is established during trial that he was only 17 years old at the time he committed the crime. And after its commission, he voluntarily surrendered to the authorities, plus the fact that he entered a plea of guilty upon arraignment. Based on these facts, impose the proper penalty under the RPC and under the Indeterminate Sentence Law. Question: What is the rule? Answer: First look for the maximum…He is accused of a complex crime of homicide with less serious physical injuries, with the penalty prescribed by law for each. So, what will be our starting penalty? Prision mayor or Reclusion Temporal? Lower the penalty by one degree because of Article 68(2). So, it goes down to Prision Mayor. Then impose the proper penalty under the RPC and the Indeterminate Sentence Law.

PROBLEM: Vhenigna Vangkhiyud was convicted of homicide. The trial court appreciated the following modifying circumstances. The aggravating circumstance of nocturnity and the mitigating circumstance of passion and obfuscation, no intent to commit so grave a wrong as that committed, illiteracy and voluntary surrender. The imposable penalty for homicide is reclusion temporal, the range of which is 12 years and 1 day to 20 years. Question: Taking into account the attendant aggravating and mitigating circumstances and applying the Indeterminate Sentence Law, determine the proper penalty to be imposed on the accused. Answer: Determine the maximum by applying all the known provision of the RPC on penalties. Well, the problem says there is one aggravating. But there are 4 mitigating circumstances offsetting the aggravating circumstances of nocturnity. With one aggravating and four mitigating, there is a balance of 3 mitigating in favor of the offender. Applying Article 64(5), since there are 4 mitigating, I will fix the penalty 1 degree lower - prision mayor - because Article 64(5) says if there are two mitigating without any aggravating xxxx. Even if you still have a balance of three, you only apply the provision that it should be within the minimum period. Therefore, the maximum penalty should be within the range of reclusion temporal. IT is not necessary for you to give the precise number of years. IT is enough if you will just say within the range of reclusion temporal minimum. And now, under the Indeterminate Sentence Law, the proper penalty should be within the range of prision mayor, the penalty next lower in degree anywhere within the range of the entire penalty. You do not have to say how many years. But suppose there is no aggravating circumstance and there are four mitigating circumstances. Therefore, applying Article 64, the penalty should be lower boy one degree. Meaning the maximum should be within the range of prision mayor, and the minimum should be within the range of prision correccional. There is a danger if you start determining the penalty from the minimum going up. You should start from the maximum going down. That is the correct application of the Indeterminate Sentence Law.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Is the Indeterminate Sentence Law applicable to crimes punished under special laws? Answer: YES. According to section 1 xxxx if the offense is punished by another law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum term fixed by said law and the minimum shall not be less than the minimum term prescribed by the same. As a matter of fact, it is easier to apply the Indeterminate Sentence Law to crimes punished by special laws.

Question: Give an example of a penalty found in special laws. Answer: Anyone who is found guilty of violation of this Act shall, upon conviction be punished by imprisonment ranging form 1 year to 5 years.

That is not prision correccional. One year to five years. That's it. There are no more degrees lower or higher. Under the Indeterminate Sentence Law, it will sentence you to the maximum, the maximum would be anywhere within that range, and the minimum should also be within that range. So, I can say one year as minimum to five years as maximum. Or one year as minimum to four years as maximum. Anywhere between one to five, for as long as it does not go down to less that one, or exceed five. For penalties under special laws, there is no such thing as periods, no such thing as one degree lower. This is easier. Just fix it anywhere within the prescribed penalty. In other words, the court will just imposed the straight penalty only the maximum without any minimum. So obviously, the convict has no chance of being paroled or commutation. These are out of the question.

SECTION 2. This Act shall not apply to person convicted of offenses punished with death penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to commit treason; to those convicted of misprision of treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; to those whose maximum term of imprisonment does not exceed one year, not to those already sentenced by final judgment at the time of approval of this Act, except as provided in Section 5 thereof.

There is no such thing as reclusion perpetua as minimum and death as the maximum. Or if the person is sentenced to life imprisonment, the sentence will be within that period. Suppose, the penalty is reclusion perpetua. Obviously, life imprisonment is not the same as reclusion perpetua. However, by practice, the SC, for the purpose of the Indeterminate Sentence Law, has considered life imprisonment and reclusion perpetua as analogous because, when a person is sentence to reclusion perpetua, the court will just simply say, You are hereby sentenced to reclusion perpetua without any minimum. They will just impose it without a minimum penalty.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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For example, a person commits a crime punished by reclusion perpetua to death. The crime is a heinous crime. But since, for example, he is entitled to a privileged mitigating circumstance; the penalty will be lowered. It will go down to reclusion temporal. Question: Is he entitled to the benefit of the Indeterminate Sentence Law? That the range must be within the period of prision mayor and reclusion temporal?

PEOPLE vs. ROQUE The SC applied the Indeterminate Sentenced Law despite the fact that the accused committed a capital offense. Because since the penalty will be lowered by one degree, the imposable penalty is reclusion temporal. Since the penalty is now reclusion temporal, the Indeterminate Sentence Law is applicable because the imposable penalty is not death, reclusion perpetua or life imprisonment. PEOPLE vs. CONMAN Facts: A person is accused of murder punishable by death, reclusion perpetua but because of privileged mitigating circumstances, the penalty went down to reclusion temporal. So the imposable penalty is at most 20 years. Held: The SC did not apply the ISL because this is covered by the exception. The crime punishable by death. Question: What is the difference between the two cases? Answer: In the Roque case, the SC considered the penalty to be imposed, not the penalty prescribed for the crime. Even is the crime is punishable with the death penalty or perpetua, if however, the actual penalty is not death or perpetua, the ISL will apply. But in the case of Conman, because the law says persons convicted of offenses punishable with the death penalty, or life imprisonment. Even if the penalty imposed is not death or life imprisonment, since the crime is punishable by death or life imprisonment, you are now entitled to the ISL. Question: Which of the two is correct? Answer: There are many other cases, which came after that, which upheld the older ruling. Even if the crime is punished by death or life imprisonment, if the imposable penalty, after the mitigating circumstance re applied, will not be perpetua to death, the SC will give him the benefit. The other exceptions are based on the following. The benefit of the law does not apply to certain crimes. If you are accused of these crimes, even if the penalty is very low, like prision correccional, still you are not entitled to minimum sentence.

    

To those convicted of treason, conspiracy or proposal to commit treason; To those convicted of misprision of treason, rebellion, sedition or espionage; To those convicted of piracy; To those who are habitual delinquents; To hose who shall have escaped from confinement or evaded sentence;

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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To those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; To those whose maximum term of imprisonment does not exceed one year; Not to those already sentenced by final judgement at the time of approval of this Act, except as provided in Section 5 thereof.

So, definitely, if you are charged with arresto menor, there is no ISL there. That is straight. Even in arresto mayor, it's the same. In the first place, there is no Board of Pardon in the city jail. It is only the national penitentiary. Question: How about prision correccional (6 months and 1 day to 6 years)? Answer: If the penalty is six months and 1 day to 1 years, the ISL will not apply. It is when you exceed one year that the law will apply. Another exception not found in the law is when the principal penalty to be imposed is suspension or destierro. Because 1 degree lower than destierro is arresto menor. It is absurd to say that the minimum penalty is 1 month of arresto menor and the maximum is 5 years of destierro. Destierro does not involve imprisonment.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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PROBATION LAW OF 1976 PD 968, as amended Question: How do you describe probation? Answer: Probation is simply the law on suspended sentence for adult offenders. This is the counterpart of PD 603, which is the law on suspended sentence for youthful offenders. In the same manner, we can call PD 603 as the probation law for youthful offenders.

It is awkward that only minors are entitled to suspended sentence. Because we cannot deny the fact that not everybody is a natural-born criminal. When we commit a mistake only once, it is too harsh that you have no choice but to go to jail. So, in the same manner that a minor proves to reform, the suspended sentence will be forgotten. That should also be applied to adults. We call him the probationer. In the same pattern that the child will apply for suspended sentence with the court, the convict adult must also apply for probation. With the minor, the court will refer him to the DSWD. With the adult, the case will be referred to the Probation Administration. So, there is a city probation officer, provincial probation officer for case study and recommendation. If the recommendation is favorable and there is nothing in law, which disqualifies you, the court will suspend your sentence, subject to certain conditions. If you break the conditions, then you serve your sentence. If you do not break the conditions during the period of probation, then you pass. Forget about your sentence. You are a free man. That is what the Probation Law is all about.

SECTION 4. Grant of probation. Subject to the provisions of the Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period of perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, that no application for probation shall be entertained or granted of the defendant has perfected the appeal from the judgement or conviction. Provision may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable.

Actually, the Probation Law applies not only to people who are sentenced to imprisonment, but also including those who have been sentenced to pay fine with subsidiary imprisonment in case of insolvency. They are also covered by that.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Now, one important point about Section 4 is that when you are convicted in a court you have two

1. 2.

Appeal, or Apply for probation.

And you must apply for probation within the period to appeal. You cannot apply for probation after 15 days. You choose between the two. Question: Can I appeal later on, when I am found guilty and the judgement become final, apply for probation? Answer: Under the law, you cannot have your cake and eat too. When you file a petition for probation, you are automatically waiving you right to appeal. You are accepting the correctness of the decision. If you appeal, then you stake your future in that appeal. In the event that your conviction is affirmed, then you cannot say that you will now apply for probation. Now, you go to jail. Probation and appeal cannot go together.

YUSI VS. MORALES 121 SCRA 653 Facts: The accused was convicted. What the lawyer did was, within 15 days, he applied for probation. Four or five days after the date of the application, the accused changed his mind. So, through his lawyer he sought to withdraw his application. Instead, he would file a notice of appeal. The court a quo said that he could not do that anymore because under Section 4, from the moment he filed an application for probation, he is waiving his right to appeal. Held: The trial court is wrong. Probation and appeal are both for the benefit of the accused. He can change his mind. The important thing is that he is not availing of both, and provided he does one of the two within 15 days. The choice is not irrevocable so long as it is done within 15 days.

SECTION 9. Disqualified Offenders. The benefits of this Decree shall not extend to those: a. b. c. d.

Sentenced to serve a maximum of imprisonment of more than 6 years; Convicted by subversion, or any crime against the national security or the public order; Who have previously been convicted by final judgement of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than P200; Who have been once on probation under the provision of this Decree; and, who are already serving sentence at the time the substantive provision of this Decree became applicable pursuant to Section 33 hereof.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Who are disqualified offenders: Answer: They are people who are not qualified. Even if they will apply, the application will be automatically denied. But there are also people who are not disqualified under Section 9, but the court may still deny the probation because of Section 8.

SECTION 8. Criteria for Placing an Offender on Probation. In determining whether an offender may be placed on probation, the court shall consider all information relative to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the court finds that: a. b. c.

the offender is in need of correctional treatment that can be provided effectively by his commitment to an institution; there is an undue risk that during the period of probation the offender will commit another crime; or, probation will depreciate the seriousness of the offense committed.

Under Section 8, there still other grounds for the court to consider. But these are discretionary or based on the sound judgement of the court. We are more interested in Section 9 because really, the law disqualifies Six years and 1 day is already disqualified. So, those who re sentenced to prision mayor up are disqualified. Obviously, based on the law on jurisdiction now, no crime triable by the RTC is probationable.

PROBLEM: In case of violation of Section 8 of RA 6425 (Dangerous Drugs Act), accused Vhenigna Vangkhiyud was given the benefit of the mitigating circumstance of voluntary plea of guilty and drunkenness, not habitual. She was sentenced to suffer the penalty of 6 years and 4 days and to pay the fine of P60, 000.00 with the accessory penalty provided by law plus costs of probation. Question: If you were the judge, what action will you take on the probation? Answer: If I were the judge, I will deny the application because the problem says that despite the 2 mitigating circumstances, she was sentenced to suffer the penalty of 6 years and 4 days. According to Section 9 (a), the benefits of the Probation Law shall not extend to those sentence to serve the maximum term of imprisonment of more than 6 years and 4 days. She is disqualified.

FRANCISCO vs. CA 240 SCRA 24

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Facts: The accused was convicted for a crime for which she was sentenced to a maximum penalty of 10 years, she seasonably appealed for conviction. While affirming the judgement of conviction, the appellate court reduced the penalty to a maximum of 4 years and 4 months. Taking in to consideration certain qualifying circumstances, the accused applies for probation. Held: She is not entitled to probation. The language of the law is that when you appeal, you cannot apply for probation. She has already appealed. Should an appeal bar an accused from applying for probation, if the appeal is reduced the penalty within the probational limit… while the proposition is equitable to allow the accused to apply for probation, we are not yet prepared to accept this interpretation under existing laws and jurisprudence. It is simply contrary to the clear express mandate of Section 4 of the Probation Laws as amended, which states that no application for probation shall be entertained if the defendant has perfected an appeal from the judgement of conviction. That is what the law says. And when the law does not distinguish, the court should not distinguish. Where the law does not make an exception, neither shall the courts. That is the literal approach. EXAMPLE: You are charged 5 time for the same crime committed on different occasions. That usually happens when you commit a crime against the individual several times and the maximum penalty, assuming, for each crime, is 2 years. So there are 5 informations. So, there is a joint trial - all 5 cases are consolidated. After trial, the accused is found guilty beyond reasonable doubt on all 5 charges. Therefore, the court sentenced the accused to 2 years imprisonment for every crime. Total maximum is 10 years. Now, he applies for probation. Question: Is he entitled? Answer: YES. You look at the individual crimes, not the totality. The sum of the multiple terms imposed against an applicant should not be determined of his eligibility or his disqualification from probation. The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law, that is not more than 6 years, then he is entitled to probation. What is important is that the penalty for each crime does not exceed 6 years, unless he is specifically disqualified by other laws. The number of offenses is immaterial. As long as all the penalties imposed taken separately are within the probational period…for Section 4 uses the term "maximum" not "total". The law does not intend to sum up the penalties imposed, but to take each penalty separately and distinctly. Question: When a crime is punishable by 6 years and 1 day, that is an afflictive penalty. The crime is already grave. But 6 years down, the crime is less grave. Why did the law make the years the cut-off? Answer: The purpose of the law is to exclude grave felonies. It is not the intention of the law to exclude less grave. Therefore, if you commit 2 or more less grave felonies, you do not say five less grave equals grave. No. There is no such thing. Even if you are convicted 100 times of that offense, the penalty is still for less grave. You do not consider the total. One thing to remember is that when you are under probation, you will be under the supervision of a probation officer. There are conditions to be imposed under Section 10. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Now, if you pass the period of probation, no problem. You will be disbarred. If you will not pass or if you violated the conditions, you will be arrested, then summary hearing to determine or to prove that there was violations. And then the probation is lifted. You will now serve imprisonment Suppose you pass. The court, according to Section 16, will now order you final discharge and the final discharged of the probationer shall operate to restore to him all civil rights lost or suspended, as a result of his conviction, and to fully discharge his liability for any fine imposed as to the offense for which the probation was granted. Meaning, if you are sentenced to pay fine with subsidiary imprisonment and you applied for probation, the probation will erase the payment of the fine forever. Try to compare that with the subsidiary penalty under Article 39, which provides that the service of the subsidiary imprisonment will not relieve you from paying the fine in the future if you become solvent. In probation, payment of the fine is discharged. Question: What happens to the civil liability? Will probation extinguish the civil liability? Answer: No, the civil liability is distinct and separate from the criminal. Section 16 only discharges the accused from payment of the fine. There is no mention of civil liability. It will still have to be paid to the offended party.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Title Four EXTINCTION OF CRIMINAL LIABILITY Chapter One TOTAL EXTINCTION OF CRIMINAL LIABILITY

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished: 1. By the death of the convict, as to the personal penalties and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment. 2. By service of the sentence; 3. By amnesty, which completely extinguishes the penalty and all its effects; 4. By absolute pardon; 5. By prescription of the crime; 6. By prescription of the penalty; 7. By the marriage of the offended woman, as provided in Article 344 of this Code.

The modes of extinguishing criminal liability. Take note that criminal liability begins with a crime. Criminal liability starts by incurring it, but there is also an end or extinction to criminal liability. Question: What are the grounds for the total extinction of criminal liability? Answer: There are exactly 7 Ways of totally extinguishing criminal liability under the Revised Penal Code.

1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties, liability therefore is extinguished only when the death of the offender occurs before final judgment. What more can you ask of him if he dies? So, if the accused dies during the trial, after the trial, or even while he is serving sentence, it does not matter. From the moment he dies, his criminal liability is extinguished. The trial cannot proceed; the case has to be dismissed; We cannot say that we will continue the trial for the record, if he is serving his sentence, after his death, that the end. Who will serve his sentence after his death? If you will say, “we will let the family continue - they will inherit the penalty.” Is there such a thing as criminal liability by succession? Note: The death of the convict extinguishes his criminal liability as to the personal penalties. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CRIMINAL LAW 1 – Dean Hildegardo F. Iñigo & Atty Teodoro V. Angel

Question: What are personal penalties? Answer: They are penalties which consist in imprisonment, loss of rights like disqualification, suspension, these are what you call personal liabilities perpetual disqualification, suspension, civil interdiction.

Question: How about the pecuniary penalty? Answer: An example of a pecuniary penalty

Question: Suppose a convict is sentenced to pay a fine. And then he dies, what happens to his obligation to pay the fine? Answer: This time, the RPC distinguishes whether he died BEFORE the judgment became final, or AFTER the judgments became final. For example, while the case is on appeal, he dies, and then it is also finished. The obligation to pay the fine is extinguished. But, if the pecuniary judgment has become final and executors', then he dies, the obligation to pay the fine is not extinguished because the fine can be collected by the Slate through his assets. Based on his assets, the government can enforce the payment of the fine. That is the distinction. Distinguish whether the penalty is personal or pecuniary. How about the civil liability? Suppose, a person is convicted by the RTC for homicide, sentenced to imprisonment and ordered to indemnify the family of the victim the sum of P2G,000 by way of compensatory damages. Or, any other type of criminal case where there is civil liability. The accused appealed. While the appeal is pending in the CA, the accused died. What happens not to the civil liability? Can this continue or not? The old rule was, from the moment the convict died, the case would be dismissed. The civil liability would also be extinguished. However, that ruling - that the case can no longer continue after the death of the accused as to both criminal and civil liability - was reversed starting with the rulings in the case of Torrejos vs. CA, (67 SCRA 349), reiterated in the more famous case of People vs. Sendaydiego, (81 SCRA 120). These cases are commentaries on what happens after the death of the convict, as to civil liability. What will happen to the case on appeal? The first two cases are followed by a few more cases, then in 1992, People vs. Badico, (204 SCRA 182) - and among others, about 8 cases where upon the death of the accused or convict, while the case is on appeal, the criminal liability extinguished but not the civil liability.

Question: But how can the civil liability proceed? Answer: By substitution of party defendant. In other words, convert it into civil case.

Question: What is the basis for that?

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: The cases for that were Article 30 of the Civil Code and Section 20, Rule 3 of the 1997 Rules of Court. Remember Civil Procedure, Sec. 20, Rule 3? That's where after the death of the defendant, if there is already a final judgment by the RTC but not yet final, and then the defendant dies, you do not dismiss the case anymore but you substitute with the their of legal representative. ARTICLE 9 of the CIVIL CODE provides that when a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise he sufficient to prove the met complained of. SECOND 20, RULE 3, RULES OF COURT. Where claim does not survive. - When the action is for recovery of money, debt or interest thereon, and the defendant dies before final judgment in the RTC, it shall be dismissed to he prosecuted in the manner especially provided in these rules. That was the basis. And that ruling .subsisted until the SC en bane so, doctrinal, reversed all these previous cases and reverted to the original rule, in the leading case of People vs. Bayotas (236 SCRA 239). This was promulgated by the SC en banc on Sept. 2, 1994.

Question: Does the death of the accused pending appeal of his conviction extinguish his civil liability? Does such death affect his criminal responsibility and civil liabilities which are the consequences of his crime? Answer: Yes. We go back to the old rule, The SC said the earlier ruling in Torrejos vs. CA; People vs. Sendaydiego and succeeding cases, are abandoned. Why? In these cases, there was a mistaken reliance on Article 30 of the Civil Code and Section 20, Rule 3 of the Rules of Court. In other words, the SC after several cases said, "We made a mistake." If we were to render the penalty in the intendment of Art. 100 of the RPC, which provides that every person criminally liable for a felony is also liable, in such cases extinction of the criminal action due to the death of the accused pending appeal inevitably signifies the concomitant extinction of the civil liability, works only in absolving. So, meaning, no more substitution. You cannot say, "Okay, we will substitute the heirs to continue the case as to the civil aspect."

Question: Don't you think it is quite unfair-just imagine if you're a victim of Theft or Estafa, and there is no more means of getting back what was taken away from you? Answer: No, What it is saying is that you cannot collect the civil liability in the criminal cases. It cannot continue. Substitution is not allowed. Question: What is the philosophy behind this? Answer: You go back to the Civil Code. Article 1157 of the Civil Code.

ARTICLE 1157, CIVIL CODE. Obligations arises from; 1. Law; 2. Contracts; ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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3. Quasi-contracts; 4. Acts or omissions punished by law; and, 5. Quasi-delicts. Number 4, acts or omissions by law - that includes civil liability arising from crimes. That is also a source of obligations. But obligations arise not only from crimes; they also arise from quasi-delict (culpaaquiliana), quasi-contracts, or contract, or the law itself. The SC said, in this case of Bayotas, if the obligation to recover is extinguished," the case is only coming from the crime the only .source of the obligation is the crime. The death of the convict also extinguishes it. However, it is also possible that the obligation to pay arises also from the crime and from other sources. Example: You entrusted me to your goods, and then I run away with your goods. That is estafa. I will be liable for estafa, abuse of confidence. Do I have the obligation to return to you your goods? Of course. Why? As a civil liability for the crime of estafa. But even if there is no estafa, I still have to return to you your goods because of the contract of agency. So, the obligation here arises from 2 possible sources. Or, for example, you hit a pedestrian while you are driving a vehicle. So you are accused of homicide or reckless imprudence, if you are convicted, you have to indemnify the family. Your obligation here arises from a criminal act. But, even without the criminal act, WQH are still liable under the source of quasi-delict. Meaning, the civil liability here can arise from 2 possible sources,

If the source of the liability is only the crime, then it's goodbye for you. Death dissolves everything. But, if aside from the crime the civil liability can be recovered from any other source - for example contract or quasi-delict, then you can still recover despite the death of the defendant.

Question: What is the correct procedure? Answer: The correct procedure is not to continue with the criminal case but to file a separate civil action. Or, if it is arising from the contract, you can file a claim against, the estate of the deceased under Rule 85, under the Rules on Special Proceedings. That is the correct procedure now, but definitely you cannot ask the criminal ease to be continued and convert it into a civil case. This distinction presupposes that the civil liability is deemed instituted in the criminal case. That the victim never made the reservation for an independent or separate civil action.

Do not be afraid because when you file the criminal case where the civil case is deemed instituted To summarize the new rulings in the case of Bayotas:  

The death of the accused pending of his conviction extinguishes his criminal as well as the civil liability based solely thereon. Meaning, the source of the obligation is only the crime. Corollarily, the claim for civil liability survives notwithstanding the death of the accused if the same may also be predicated on a source of obligation other than the crime, citing Article 1157 of the Civil Code.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Where the civil liability survives as explained in #2 above, an action for recovery thereof may be pursued but only by way of filing a separate civil action and subject to Sec. 1, Rule III of the 1985 Rules on Criminal Procedure. This separate civil action or claim may be enforced against the executor or administrator of the estate of the deceased, depending on the source of obligation upon which the same is based. If the claim, is arising form contract, you claim against the estate. If it is arising from quasi-delict, claim by civil action against, the executor. The private offended party need not fear the forfeiture of his rights to file a separate civil action by prescription.

In such case, the statute of limitations does not run, The liability is deemed interrupted during the pendency of the criminal case conformably with Article 1155 of the Civil Code. That should avoid any apprehensions the possible of right by prescription 3.) By amnesty, which completely extinguishes the penalty and all its effects; 4.) By absolute pardon;

Question: Distinguish amnesty from pardon? Answer: AMNESTY Covers a group of people Covers political crimes only Erases the crime

PARDON

Amnesty can come before conviction. Meaning, during or after conviction. It can be given anytime. Amnesty is an OFFICIAL ACT. The Executive Department confers it and there is no need to present evidence on the amnesty proclamation.

Individually May be granted for common crimes Erases the penalty but not the crime. The conviction remains. Generally pardon comes after conviction. Pardon is a private act by the president. And not within the realm of judicial notice. In order to invoke it, one must present evidence with respect to the pardon.

Monsanto vs. Factoran 170 SCRA 190 Facts: Linda Lopez, was convicted by the Sandigan Bayan of Estafa and falsification of public documents. She was sentenced accordingly. She was ordered to pay, among others, P5.000.00 representing the balance of the amount defrauded. That is the civil liability for the crime of estafa. The case reached the SC, which affirmed the judgment of conviction. During the pendency of the appeal, Lopez filed a motion for reconsideration in the SC. In the said court, the President extended to her an, absolute pardon. By reason of such pardon, she returned to the Department of Finance and requested that she be reinstated to her former position as Asst. Treasurer which was still vacant.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The Department ruled that Linda may be reinstated to her former position without the necessity of reappointment and directed her to see to it that the sum of P 5,000.00 is satisfied. She may be reinstated but she has to pay the civil liability. Claiming that she is not obliged to pay P 5,000. Linda appealed to the Office of the President. Even the P 5,000, she would not like to pay , The Office of the President dismissed the appeal, and her acquittal due to the pardon is flic only ground for her reinstatement to her former position. That absolute pardon does not exempt the culprit from paying the civil liability. Mosanto went to the SC. Held: She will be entitled to apply again. The SC based its ruling on the nature of the pardon. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. The conviction stays. Pardon does not was out the moral stain. It involves forgiveness and not forgetfulness. Pardon looks to the future If is not retrospective, ft makes no amends for the past If affords to relieve from what has been suffered by the defendant. Pardon may relieve a person form disability of fines and forfeitures attendant, in a conviction. But it cannot erase the stain of bad character which has definitely been fixed. Pardon cannot produce such moral charges as to equate the pardoned convict in character and conduct with one who was constantly maintained the mark of good law-abiding citizen. Pardon cannot bring back lost virtue for honesty, integrity and credibility. So, what is the ruling? Lopez is not entitled. The pardon docs not entitle her to get back her former position. There is a missing Question: How about the civil liability9 Art, 113. Pardon extinguishes only the criminal aspect; the civil liability in favor of the government, the fine, yes, but not the civil aspect of the case. ARTICLE 113, RPC. Obligation to satisfy civil liability.—Except in case of extinction of his civil liability as provided in the nest preceding article, the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by hi, not withstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required the same by reason of amnesty, pardon, commutation of sentence or any other reason.

5.) By prescription of the crime; Prescription of the crime means the State forfeits or loses its right to prosecute the Offender by reason of the lapse of time. So there is a deadline for the filing of a criminal case. Beyond that, the criminal liability is already extinguished. The periods for the prescription of crimes is found in the next article. 6.) By prescription of penalty; The State forfeits its right to enforce a given penalty also because of the lapse of time. They are already all convicted, take note. They have been convicted- final, there is already a sentence. There is already a penalty. Suppose, somehow you are able to evade the penalty. The penalty cannot be served because you cannot be found. You disappeared. The State also has a deadline within which to catch you compel you to ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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serve your penalty. Beyond a certain period of time, the penalty also will prescribe. After that, you can no longer be compelled to serve penalty. 7.) By marriage of the offended woman, provided in Article 344 of this Code; this is applicable only to Crimes against Chastity --rape, seduction, abduction, acts of lasciviousncss. When the victim of the rape, etc. marries the abduction or the rapist, the criminal liability of the accused is automatically extinguished. So, from victim to wife. Art. 90. Prescription of crime. — Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty years. Crimes punishable by other afflictive penalties shall prescribe in fifteen years. Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in five years. The crime of libel or other similar offenses shall prescribe in one year. The crime of oral defamation and slander by deed shall prescribe in six months. Light offenses prescribe in two months. When the penalty fixed by law is a compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraphs of this article. (As amended by RA 4661, approved June 19, 1966).

Meaning, a case must be filed within a certain period. Otherwise, lapsed I he period starts from the highest to the lowest. From crimes punishable by death, reclusion perpetua the gravity. Then from 15 to 20 years. Afflictive penalties: prision mayor, reclusion temporal. Etc. Then, crimes punishable by CORRECTIONAL PENALTIES with the exception of arresto mayor. Suspension, destierro are 10 years. The lowest, arresto mayor is 5 years. So, 20-10-5, and then light felonies — prescribed penalty 2 months-(60 days). There are certain crimes with special prescriptive periods, like libel, which prescribes only in 1 year. Oral defamation and slander by deed are also special crimes. But oral defamation and slander by deed (6 months) refer to grave oral defamation, or serious or grave slander by deed. If it is slight oral defamation, that's only 2 month; that’s only a light felony. .

Damasco vs. Laqui 166 SCRA 214 Facts: A is accused of less serious physical injuries. This is punishable by arresto mayor, prescriptive period: 5 years. The case was tied within in year after the incident. So, it was filed on time. The case was tried. After trial, the court said: "The accused is guilty as charged." But actually this case, less serious physical, injuries, ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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the injury is only slight, Lesser or Tense, So the court convicted the accuse of the crime of slight physical injuries. But the charge is less serious physical injuries. With that, the accuse said:" I move to set aside the conviction including the penalty." Why? "Because if it is slight physical injuries only, I committed only a light felony. Therefore, the charge against me should have been filed within 2 months. You filed the information for 1 year." The prosecutor said: "But we did not accuse you of slight physical injuries. We accused you of less serious physical injuries, which prescribes in 5 years. It is only accidental that you were convicted of slight physical injuries." Held: Prescribed. The information should have been filed within 2 months. If we will follow the prosecution's theory, you can easily heat prescription. That will be one way of circumventing the law of prescription. Where the accused has been found to have committed a lesser offense included within the criminal offense charged, he cannot be convicted of the lesser offense if it has already prescribed. To hold otherwise would be to sanction a circumvention of the law on prescription by the simple expedient of accusing the defendant of the grave offense.

Question: The crime is committed on March 15, 1995. Slight physical injuries (light felony) The information was filed on May 15, 1995. Has the crime prescribed, or was the deadline met by the prosecution? Answer: What do you mean by months? Months mean 30 days. March has 31 days. March 15 to April 14 is one month. April has only 30 days (April 14 lo May 14). Therefore, in the given case, the information was filed on May 15, so the deadline to file was supposed to be on May 14. So you must know how to compute.

Question: Suppose the last day fall on a Sunday? How can I file the case on a Sunday? Or if the last day is holiday? Answer: The law on pleadings. If you failed to file an answer in a civil case, or if the filing of the appeal falls on a Sunday or a holiday, it can be done on the next business day that is found in the revised Administration Code. Meaning, there is an automatic extension. So, now the failure to file an answer in a civil case, the period to file the notice of appeal, if it falls on a Sunday, then file it in die next business day. Thai was the issue in the case of Vapdiangco vs. Buencamino (122 SCRA 713). Answer: The prescriptive period under Article 90 applies only to those which are in the penal code. If does not apply to crimes punishable by special laws. In special laws, it provides for its own prescriptive period. Well, I think most annotated books, the author cites an old law which gives the prescriptive period of crimes punishable by special law.

Art. 91. Computation of prescription of offenses. — The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents,

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philippine Archipelago. The period of prescription commences to run from the date the crime is discovered. Take note, the word is “discovered” and not committed. Normally, the crime is discovered only when it is committed. It is absurd. When you box me and you will only discover this fact tomorrow. You discovered the offense upon commission. But there are some crimes where the date of discovery will not coincide with the date of commission of the offense. A good example is murder or homicide. If a victim is killed and his cadaver is buried to prevent its discovery. So the person is killed is a missing person because nobody know where his cadaver is. But after one year his cadaver was discovered and identified. In other words, the discovery came after one year from its commission. Another example is if in a public gathering you were not there. There, you were defamed by the accused. He said so many things about you publicly. But you did hot know about it. So one day one of those who were present in the gathering told you that this is what happened. Oh, so I see how do you compute the prescriptive period in this case? It is not the day of the commission but on the date of discovery. That is how discovered and commission of the offense will not coincide. But the law says, not only discovered... discovered by whom? Now in the case of offended party in crimes against persons, it is not the person who died first but his family.

PROBLEM: Suppose, A murders B in an uninhabited place without knowing it that there is somebody who saw it. X who is a farmer saw it. He did not say anything about it. So assuming A hid the cadaver and thought that nobody has seen the crime. Now, for several years, X. kept them and then after several years, he told the authorities of the death of B and the killer, A. Just look over there, where the body is. The law says the discovery of the crime not the discovery of the criminal. Suppose the crime is committed today and it was discovered today but nobody knows the criminal. When do you start computing the prescriptive period? Of course today. Because today, the crime is discovered. But nobody knows the killer, for 20 years the killer is in hiding And after 10 years he surfaces. When does the time of running the prescriptive period stop to run? By filing a complaint or criminal information. Well, you know in criminal procedure, you know the distinction between a complaint and a criminal information. In criminal procedure, a MTC judge can conduct preliminary investigation on cases triable by the RTC. Unlike in the city, it is not allowed Suppose the complaint for murder is filed in the MTC for preliminary investigation because they cannot try the murder case because it is not within their jurisdiction. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Is the filling of the criminal complaint for preliminary investigation in the MTC sufficient to interrupt the running of (he prescriptive period or is it the filing of a case in a court which has jurisdiction? That is where jurisprudence sets in.. People vs. del Rosario, but the doctrine is in thecase of People vs. Olarte. The SC said: The filing of the complainant for the peupose of preliminary investigation stops the running of the prescriptive period. Why? Because according to the SG, Article 91 does not distinguish whether the complaint was filed for trial or for preliminary investigation. Let us go to the fiscal because a complaint for a preliminary investigation can also be filed in the fiscal's office. It is called a "denuncia". Suppose a police files a criminal complaint for murder or denuncia before the fiscal's office. Will the filing thereof interrupt the prescriptive period? The old rule in No. That which is filed in the MTC, yes, in the fiscal, no. But one division of the SC in 1983 said the filing of complaint before fiscal's office stops the running of the prescriptive period. Then, two years later came the 1985 Rules on Criminal Procedure which rejected the ruling. So, the filing does not interrupt. But in 1998, the criminal procedure was amended. The last paragraph of Rule 110 says: “ The institution of the criminal case, whether it is instituted in the fiscal’s office or court, whether for trial or criminal investigation is sufficient to interrupt the prescriptive period. The amendment in 1988 reinstated the Francisco ruling. So, since 1988, the filing of a complaint in the fiscal's office is also sufficient. However, in 1991 or 1992 in the case of REYES, the SC distinguished if the complaint filed in the fiscal's office is covered by the summary rules, it does not interrupt But if it is not covered by the summary rules, then it does interrupt. But we will touch this more in the rules on criminal procedure. So, from the filing of the complaint, the running of the prescriptive period stops but it continues to run again if the proceedings are terminated again without any acquittal or condition. If the case ends with an acquittal or termination, then it cannot be re-filed because there is already double jeopardy. But if the case ends not based on acquittal or termination, meaning the case ends without all the conditions for double jeopardy present, the running of the prescriptive period continues. A good example is when the case is dismissed because of technicality like lack of jurisdiction or the information is not charging an offense or the person filing the information has no authority to do so. And the period of prescription according to article 91 does not run if the offender is outside the country because there is no way for the court to acquire jurisdiction over your person and because if you go into hiding it works against you.

People vs. Reyes 175 SCRA 597 Facts: This involves the crime of falsification of public document. A deed of sale was falsified by the accused. And the accused registered it in the Register of Deeds on May 26, So, I falsified the document, meaning, I made it appear that the property was sold to me and I forged the signature, then I registered the deed of sale in the Office of the Registry of Deeds in 1961. Complainants, the owner of the property claim that they discovered the falsified deed of sale on June 1983.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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So, when was the crime? 1961. Registered? 1961. But the complainant said: "We discovered in June 1983. A criminal case for falsification was filed on October 1984, one year later. The prescriptive period for falsification: ten years. When do you start counting the prescriptive period? In 1961, there are 22 years, so it cannot be, or in 1983 where the complainants claim that they discovered the existence of the falsified document. The law said “discovered”. Held: The crime has prescribed. The prescriptive period starts from 1961. Why? Under the law on property registration, registration of the document with the register of deed is notice to the whole world. Meaning, the whole world and the complainants are deemed notified. So it is constructive notice. It is established that registration to the public registry is addressed to the whole world, in legal contemplation, discovery muss be reckoned to have taken place from the time it is registered in the Register of Deeds. The presumption in rules of interpretation used in prescription on civil suits including the rules on constructive notice can be applied to rules on criminal actions. The rule on prescription of crimes is an act of amnesty or liberality on the part of the state tin favor of the accused. The rule on constructive notice in the construction of Art. 91 would work favorably to the accused.

Sermon vs. CA 233 SCRA 155 Facts: This involves prosecution of bigamy. A man has 2 marriage contracts. He was prosecuted for bigamy and he pleaded prescription. The wife said: "I discovered the second marriage when I was in the State. The husband said nothing. Remember the marriage contract was registered in the civil registry and that is also constructive place under the case of Reyes. Issue: Whether in computing the prescriptive period for the crime of bigamy, should discovery be deemed to have taken place from die time the offended party actually knew of the subsequent marriage or from the second marriage was registered in the civil registry consistent with the notice. Held: The computation stalls form the time the offended party actually knew. So, not the time of registration. While the rules on constructive notice in civil cases may be applied in criminal actions, if the actual and legal circumstances so warrants. However, it will not apply in the crime of bigamy not withstanding its favorable being accused. In the criminal cases cited, wherein the constructive notice was applied, what is involved therein were land or property disputes and certainly marriage is not property. What is constructive notice? That is found in Section 52 of the Property Registration Act. This provision has no counterpart either under RA3753 ( Civil Registry Act) or under article 407-412 of the Civil Code that there is constructive notice which leads US to the conclusion that there is no legal basis on the constructive notice rule to apply to the documents registered in the Civil Registry. Where we put our imprimatur to the theory of the accused, in all likelihood we would be playing right into the hands of philanderers, for we would be equating the contract of marriage into an ordinary contract or other similar document without due regard to the stability of marriage as a social inviolable institution the preservation of which is prime social duty.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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What is going to prescribe is not the crime but the penalty already imposed So, what is the assumption"' The assumption is that the accused has been tried and convicted As a matter of fact, the only thing left is to enforce the penalty but somehow the convict has evaded sentence and after the lapse of a certain period the penalty will prescribe Read Article 92, For example, you are convicted to death and you escaped, be sure that you go in hiding for 20 years. If you at the prescriptive periods here, they are almost: identical under Article 90- 20-15-10-5. In Article 90, the prescriptive period for a light felony is 2 months. But in Article 92, the prescriptive period for a light felony is one year. That's the difference. So for example, you are found guilty of committing a light felony and you were sentenced to one day of arresto menor. You do not want to serve that. So you evade for one year. So, you need one year before it will prescribe. The assumption here is that the accused has already been tried and convicted. The only tiling left is to enforce the penalty but somehow the convict has evaded serving the sentence and after the lapse of a certain period the penalty will prescribe For Example: You are sentenced to death. So you'd rather disappear but be sure that you'll not be caught for 20 years. After 20 years, the penalty has already prescribed. Prescription of penalties is almost similar to prescription of crimes ( Art. 90). The only variation is in Art, 90 the prescriptive period for a light felony is 2 months, whereas in Art. 92 it is 1 year. Example: You are found guilty committing a light felony. You were sentenced to 1 day of arresto menor. But you don't want to go to jail to serve that 1 day. So, you must evade that for 1 year. So, you need 1 year before it will prescribe.

Art. 92. When and how penalties prescribe. — The penalties imposed by final sentence prescribe as follows: 1. Death and reclusion perpetua, in twenty years; 2. Other afflictive penalties, in fifteen years; 3. Correctional penalties, in ten years; with the exception of the penalty of arresto mayor, which prescribes in five years; 4. Light penalties, in one year.

It commence to run from the date culprit evade his sentence. So, you must evade like escaping from jail. Or before you are to go to jail, you evade like what happened to Rolito Go. The prescriptive period had started to run in his favor. The judgment is final. I think that is murder. So, that prescribes in 20 years. But it is interrupted when you surrender or you are captured. Suppose, you are sentenced to a crime where the penalty prescribes in 15 years I evade. After ten years I was captured. So, I have to serve the penalty. Then, I escaped again. How long should I remain at large? 5 years, because you have a deposit often years. The law says interrupted but it is not forfeited. It is also interrupted when you go to a foreign country where our government has no way of acquiring jurisdiction. So, be sure that you are here when ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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you want that prescription run in your favor. Also, be sure that there is no extradition treaty in the country where you will hide. Lastly, you must not commit another crime before the expiration of the period of prescription. So, you must behave while you are in hiding.

Question: Is this tantamount to encouraging person to escape? Why should we reward a person from escaping? Answer: The philosophy behind this provision was cited by Viada. There is a similar provision in the Spanish Penal Code which was quoted by the SC in the case of Infante vs. Prison Warden, This is what is says: If a convict under confinement, at (he risk of being killed, succeed in breaking jail and also succeeds in evading re-arrest for a certain period of time which by no means is short, despite the effort of all the instrumentalities of the government including sometimes, the setting of prize or reward on his head, which here by enlists the aid of the citizenry, thai calls off the search for him, and condones the penalty. This against the Government of the Philippines, This is you against the whole world. So, the fight is not even, the Government is stronger than you. So, if you succeed in outwitting the government, the Government will give a sort of amnesty. But during that period of prescription, the escaped convict lives a life a hunted animal, hiding mostly in the mountains and forests in constant mortal fear of being caught. His life is far from being happy, comfortable and peaceful, is reduced to a mere existence filled with fear, discomfort, loneliness and misery. As, the convict who evades sentence is sometimes sufficiently punished by this voluntary and self-imposed banishment, and at times the voluntary is more than grievous than the sentence he was trying to avoid. And at all times he was to utilize every ingenuity and means to outwit the Government agencies bent on recapturing him. For all this, the government extends to him a sort of a condonation or amnesty. Requisite: the period of prescription of penalties shall commence to run from the date when the culprit should evade the service of his sentence. Meaning, he-must evade. So for Example: escaping from jail or before you could be brought to jail, you hide. But it is interrupted when the convict: 3. 4. 5. 6.

Gives himself up; Is captured; Should go to some foreign country with which the government has no extradition treaty; or Should commit another crime before the expiration of the period of prescription.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Chapter Two PARTIAL EXTINCTION OF CRIMINAL LIABILITY

Art. 94. Partial Extinction of criminal liability. — Criminal liability is extinguished partially: 1. By conditional pardon; 2. By commutation of the sentence; and 3. For good conduct allowances which the culprit may earn while he is serving his sentence.

There are two ways of extinguishing criminal liability  Article 89, Total Extinction  Article 94, Partial Extinction Question: What are the modes of totally extinguishing criminal liability? Answer: Article 89. Question: What are the modes of partially extinguishing criminal liability? Answer: Article 94. So, pardon. There are 2 types: if total. Article 89; if conditional, Article 94. In conditional pardon, the president will grant you pardon out conditions. If you do not want the conditions, you will not pardoned. But you must not also commit a violation of the condition or else you will be recommitted in jail. But in absolute pardon, it is different—unless you commit another crime , that is another story. Commutation of the sentence is the lowering of the penalty. Another penalty will be imposed in place of a higher penalty, like you were sentenced to death in the RTC, then the SC will lower it to reclusion perpetua. The President can also commute the penalty. 1 le can pardon and he can also commute. As a matter of fact, when the 1987 Constitution was passed, where the death penalty could not be imposed anymore unless the Congress revives it because of heinous crimes—so, we had no death penalty from 1987 to 1994. The heinous crime law took effect on January 1994. Now, what happens to those people who were sentenced to death but before it could be imposed here comes the 1987 Constitution. Is says that all those who were sentenced to death are automatically commuted. So, this is constitutional commutation. Good conduct allowance is discussed in the preceeding sections. This is being imposed by the Bureau of Prisons. If a prisoner is behaving well, they deduct days from his penalty. Just like in ROTC, there is merit if you acted in good conduct. Question: Article 94 only gives 3, but there are others which partially extinguish criminal liability. What are they?  The system of PAROLE under the Indeterminate Sentence Law; and  The system of PROBATION under the Probation Law

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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TITLE FIVE CIVIL LIABILITY CHAPTER ONE PERSONS CIVILLY LIABLE FOR FELONIES That is a very short article but the ramifications are very complicated. A complete understanding of Art 100 is not confined to Criminal Law. It also includes some principles in Civil Law—Obligations and Contracts;, Torts and Damages, and Criminal Procedure 7 he procedural ramifications of Article 100 are not found in the RFC. They are found in Rule III of the 1985 Rules on Criminal Procedure. What are we going to review in Article 100 are only the basic ideas. When a criminal case if filed against you, whether you like it or not a civil case is also filed. So in effect, when a criminal case is filed, there is automatically or impliedly a civil case for recovery of civil liability filed. So when you are sentenced, you are sentenced not only for the criminal offense but you are also sentenced as to your civil liability. That is why there are-2 aggrieved parties in the criminal action. One is the State represented by the prosecutor for the criminal offense. The other one is the private offended party who is given the law the right to recover civil liability. How is this litigated? Through representation by the private prosecutor.

Question: How do you divorce the civil from the criminal? Answer: 1. By waiving it. or 2. The most common -he reserves the right to file a separate civil action, or 3. When the civil action is instituted ahead of the criminal action. In this case, this is now purely State vs. accused because the civil action is litigated separately. With that, you cannot intervene in the criminal action.

Question: Suppose a civil case is segregated or reversed, the question now is: Which of the two should be decided or litigated first? Answer: The general rule is that the criminal case -must precede the civil case. The Civil case must await the outcome of the criminal case. The civil case is suspended until the criminal is decided. Suppose, he is acquitted. How about that? No problem because Rule 111 says that the extinction of the criminal liability does not extinguished civil liability.

In civil cases, only preponderance of evidence is needed. The evidence may not be sufficient to convict but it is sufficient to prove your cause of action. But what happens if you already have file the civil case? According to Criminal Procedure, when the criminal case is filed, the trial of the civil case is suspended to await the outcome of the criminal case unless, there is an attempt to consolidate the trial.' So, the rule is: The criminal case takes precedence over civil case. Question: Is there an exception? Is there an instance where if the civil action is not suspended it will not await the outcome of the criminal action? ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Answer: In other words, let the civil and criminal cases proceed simultaneously separately, without minding the outcome of either. Is that possible? This is true if your civil action is classified as an independent civil action. Independent civil actions, according to Rule 111 are those found in Arts. 32, 33, 34 and 2176 of the Civil Code. So, the following can be filed separately from the criminal case. The third situation is entirely different. The civil case takes precedence over the criminal case. The pendency of the civil case will suspend the criminal. This is the exact opposite of the first rule. What is this rule? This rule is also known as Prejudicial Question where the innocence or guilt of the accused depends on the outcome of the civil case. These principles and their ramifications are treated more in criminal procedure.

Art. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law. Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received. The courts shall determine, in sound discretion, the proportionate amount for which each one shall be liable. When the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damages have been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: This goes back to those circumstances which justify criminal liability. Is there civil liability? Answer: None, except those that fall under subdivision 4 of Article II. In exempting, the general rule. There is civil liability except paragraphs 4 and 7. This is what the discussion of civil liability in those cases. The first minority or insanity or imbecility. They are exempt from criminal liability but they are not exempt from civil liability. Question: How do you enforce the civil liability of minor with respect to a crime he has committed? Answer: The law governing the civil liability of minor is this Article 101, paragraph 1 of the RPC. But this was subsequently amended by PD 603. However, PD 603 was further modified by Article 221 of the Family Code, as amended by EO 227. Question: What is now the present governing law with respect to the civil liability o minors? Answer: It is not Article 221 of the Family code as amended by EO 227. This is what Article 221 says: “Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. The liability now devolves upon those who exercise parental authority. But you can raise defenses. Originally, many thought that this Article only applies to quasi-delicts. Meaning, parents are only civilly liable for acts or omissions committed by their unemancipated children arising from culpa aquiliana subject to defenses. But the SC said in the case of Libi vs. IAC, 214 SCA 16, Article 221 of the Family Code applies to civil liability committed by minors arising from a crime. It is not confined only to quasi-delict. The parents are liable and be held primarily liable for civil liability arising from criminal offenses committed by their minor children under their authority or control or who live in their company unless it is proven that the former acted with the diligence of a good father of a family. That primary liability under the provisions of Article 101 of the RPC with respect to damages ex-delicto caused by their children. Such primary liability is imposed pursuant to Article 2180 of the Civil Code. Therefore, ultimately, the civil liability of parents for the crimes committed-by their children is also governed by Article 2180 of the Civil Code. That Is on quasi-delict where the parents can claim the exercise of a good father of a family. That is why LIB1 case is doctrinal. Before, the issue was: Can the parents avoid liability by claiming exercise of due diligence in the supervision of their children? Weil, you will say that it is only possible when I am suing for quasi-delict, but here we are talking of civil liability arising from a crime. You cannot use Article 2180 for this. The SC said, NO. It is because of Article 221 of the Family Code, and clarified by the case of Libi vs. IAC. This question should have come out in the bar. Question: How about state of necessity? Answer: Article 101. Well, our example before was that the fire department destroyed some buildings to prevent the fire from spreading. Who will shoulder the civil liability? Well, all those who benefited.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The third refers to uncontrollable fear and irresistible force. The person using violence or cause fear shall be primarily liable civilly. Those who do the act are secondarily liable. So, those primarily liable civilly are also criminally liable as principals by inducement.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. — In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees.

This refers to liabilities of innkeepers, tavern-keepers. These terms are old English. The modern concept is hotels or lodging houses. Taverns are bars or restaurants. For example, an ordinance prohibits the selling of liquor after midnight. Suppose one customer kills another customer while still serving liquor. So, when the crime was committed you were still serving liquor. Who is liable criminally? Of course, the customer. Who is civilly liable? Of course, the customer. What if he is insolvent? The owner of the bar is liable. This is how you apply the first paragraph.

Art. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties.

This is what you call as the subsidiary liability of employees. The perfect example when you are engaged in a transportation business. That is very common. Your driver, while driving the ear, hits somebodyhomicide through .reckless imprudence. So, your driver is the one charged criminally. The driver was convicted. The judgment has become final. He was sent to jail and to pay the family of the victim the sum of P50,000. He cannot pay. In most cases, that is what happens. The driver is insolvent, What will happen? The employer will pay. That is subsidiary. If the driver is insolvent, the employer shall be liable. Suppose he happened to be my family driver. Can you apply this? NO. Because there you are not engaged in business. There is employer-employee relationship. But you can sue under culpa aquiliana. But ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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not Article 103. This one applies only to employer for crimes committed by their employees if they are engaged in an industry. He employs a person for his business, not his household.

Question: Is this not the same culpa-aquiliana where for the act of the employee, the employer is liable? Answer: No, here in culpa-aquliana, you can sue directly the employer. In Article 103, you must wait for the conviction to happen. You must wait for the finality. You must prove insolvency of the employee before you can recover, What is the advantage? The employer cannot say that he exercised diligence in the supervision of his employee That is only applicable in culpa-aquiliana. That is not available as a defense under Article 103. The defense is that I am not engaged in an industry, or he is not acting in the discharge of his duties. The third party will not be liable because of the protection for innocent purchasers for value. What is your right? You are the owner, your right is to run against the Assurance Fund It is different when I steal your title then I pretend that I knew, let us say, I introduce myself as the title owner, then 1 sell it to you citing my name as the name of the true owner. My buyer did not have a better title because the one who sold the land to him is not the real owner 1 he seller is somebody who merely impersonated the true owner. Question: Suppose, a hotel guest was told by the management: Do not keep your goods inside your hotel room. One day, the room boy or the chambermaid entered the room. The chambermaid saw the guest's money and stole it. The thief was identified, so the thief-employee was charged with theft and found guilty, lie was sentenced to indemnify -restitution or relation for the-loss of property. But he did mil pay. Is his employer liable? Is the hotel manager liable for the losses if the victim did not follow his instruction? Is the hotel management liable? Answer: Under Article 102, the hotel management is not liable. But under Article 103, it is liable because the chambermaid, the thief is its employee. What is integrated by article 102 is theft committed by third persons on hotel guests, but not theft committed by the hotel employees—Article 103 applies. Even if the hotel guest did not follow the instructions, that is not an excuse for not being liable.

Art. 105. Restitution; How made. — The restitution of the thing itself must be made whenever possible, with allowance for any deterioration, or diminution of value as determined by the court. The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person, who may be liable to him. This provision is not applicable in cases in which the thing has been acquired by the third person in the manner and under the requirements which, by law, bar an action for its recovery.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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There is a case involving a robber for theft or robbery for as long the property is proven to have been transferred to a third person, who is not a party. The recovery from the

Munsayac vs. Villasor 185 SCRA 324 Facts: Two information for theft of jewelry and gold coins were filed against Eduardo Asuncion. During the hearing of the cases, complainant, the victim of the theft, desisted from pursuing the criminal cases upon learning that the stolen items were already sold by the accused to Edilberto and Elena Munsayac. Obviously, the victim is more interested in recovering the stolen property than in prosecuting the accused. The cases against Asuncion were dismissed based on complainant's affidavit of desistance. The complainant then filed in the same criminal cases a motion for restitution of the stolen properties directed against F.dilbcrto and Elena Munsayac. The rule is you can recover the properties in the same criminal case. Held: The complainant was in error. Why? Because you can recover when the criminal case went on and led to a conviction. But when you desisted from prosecuting, the case ends there. The dismissal of the criminal charges at the complainant's instance carried the dismissal of the civil aspect of the accompanying the filing of the criminal information of the criminal cases. Without any judgment of conviction in the criminal cases, restitution cannot be ordered. Any way, said the SC, complainant still has the right to recover the properties she lost by filling an entirely new civil action.

Art. 106. Reparation; How made. — The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value to the injured party, and reparation shall be made accordingly.

Reparation is really applied in crimes against property. For example, in theft or in robbery if the object can no longer be returned because it is already consumed if consumable, or it was sold to somebody who can no longer be found. Or you cannot return something, like it was razed by fire. How to recover it? The next substitute is reparation. You pay for the value of the property destroyed . property stolen. Question: How do you determine the value? Answer: The market value, including other factors, like the sentimental value of the property

Art. 107. Indemnification; What is included. — Indemnification for consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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For physical injuries, you pay damages to the victim, loss of earning capacity, actual and compensatory. This is where the law on torts and damages comes in. If you murder somebody, you have to indemnify the family, actual and compensatory. Of course, what is the value of human life? There is no definite value. You cannot place a value on how much a life of a human being costs. Based on practice and policy of the SC as of today, what is the standard rate for the life of a human being? P50,000. But it could be higher but not less. That is the standard minimum. That is automatic. If the victim died, the court will decree indemnity for the family for P50,000. Not only that, there are other damages tinder the law.

Question: Are moral damages recoverable in a felony? Answer: Yes, for the physical anguish, the suffering, the mental anguish. How about the family, cart they recover? Yes, the law says so: xxx including those suffered by his family, or by a third person by reason of crime. A good example of a third person is, if you are supported by the deceased. You are not his son, nor related to the deceased but he is giving you support, like he sent you to school That person was killed. You are entitled to indemnification even if you are not a member of the family. Because by that, you have cut-off the consideration support. So, third person is not a member of the family can claim for loss of support. Exemplary damages are also recoverable. According to the Civil Code, if the crime is attended by one or more aggravating circumstances, the court can award exemplary damages (Art, 2230, Civil Code). So, that is what is meant by indemnification.

Art. 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and actions to demand the same; Upon whom it devolves. — The obligation to make restoration or reparation for damages and indemnification for consequential damages devolves upon the heirs of the person liable. The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured.

Something, like it was razed by fire. How to recover it? The next substitute is reparation. You pay for the value of the property destroyed . property stolen. Question: How do you determine the value? Answer: The market value, including other factors, like the sentimental value of the property If you murder somebody, you have to indemnify the family, actual and compensatory. Of course, what is the value of human life? There is no definite value. You cannot place a value on how much a life of a human being costs. Based on practice and policy of the SC as of today, what is the standard rate for the life of a human being? P50,000. But it could be higher but not less. That is the standard minimum. That is ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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automatic. If the victim died, the court will decree indemnity for the family for P50,000. Not only that, there are other damages tinder the law.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon & Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Question: Are moral damages recoverable in a felony? Answer: Yes, for the physical anguish, the suffering, the mental anguish. How about the family, cart they recover? Yes, the law says so: xxx including those suffered by his family, or by a third person by reason of crime. A good example of a third person is, if you are supported by the deceased. You are not his son, nor related to the deceased but he is giving you support, like he sent you to school That person was killed. You are entitled to indemnification even if you are not a member of the family. Because by that, you have cut-off the consideration support. So, third person is not a member of the family can claim for loss of support. Exemplary damages are also recoverable. According to the Civil Code, if the crime is attended by one or more aggravating circumstances, the court can award exemplary damages (Art, 2230, Civil Code). So, that is what is meant by indemnification The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured.

If the victim dies before he can recover (damages), his heirs will inherit his right to recover. Suppose, it is accused who died before he could pay his liability, who will now pay? That law says, it shall devolve upon the heirs of the accused. It does not mean to say that the heirs will pay the liability from their own pockets. The heirs of the accused will pay only out of what they inherited from the deceased. if the deceased or accused died a pauper, you cannot tell his family "you raise money for me". If nothing is left to them, you cannot recover. if something is left to you, obligation first before inheritance So. that is based on what the accused left behind. Do not interpret it in such a way the heirs have to work for raising money to pay for the liability.

Art. 109. Share of each person civilly liable. — If there are two or more persons civilly liable for a felony the courts shall determine the amount for which each must respond.

Art. 110. Several and subsidiary liability of principals, accomplices and accessories of a felony; Preference in payment. — Notwithstanding the provisions of the next preceding article, the principals, accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiaries for those of the other persons liable. The subsidiary liability shall be enforced, first against the property of the principals; next, against that of the accomplices, and, lastly, against that of the accessories. Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has been made shall have a right of action against the others for the amount of their respective shares.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Art. 111. Obligation to make restitution in certain cases. — Any person who has participated gratuitously in the proceeds of a felony shall be bound to make restitution in an amount equivalent to the extent of such participation.

What is an example of a person who has participated gratuitously in the proceeds of a felony? It applies to a person who received, by vvay of gift, stolen property. He acquired it gratuitously. We will assume that the third person who received a stolen ring, did not know that it was stolen, because if he knew he will be an accessory. Or fence. Now, assuming he is m good faith, he cannot be held criminally liable as a fence or accessory, but he cannot avoid, civil liability. Question: How do you compare Art.111 from Art.105? ARTICLE 105 The third person who acquired the property is also required to return it to its owner. The third person acquired stolen property by lawful means

ARTICLE 111 He is also bound to make restitution The third person acquired it gratuitously

According to the law, such third person is liable to make a restitution in an amount equivalent to the extent of his participation. For example, a thief gave his girlfriend a diamond ring worth P 50,000.00 as a gift. Then, later they broke up. The girl sold the ring for P 20,000.00. Later on, it was established that the ring was stolen. It was given to her, but she was in good faith What happened to the ring? She sold it away. To whom did she sell it? She didn't see her anymore. What is the civil liability of the girlfriend? The P20,000.00 should be returned to its owner. But the ring is worth P50.000. You are able to restitute only in an amount equivalent to the extent of your participation, The benefit or participation of the girlfriend is only worth P20,000. She cannot be made to pay higher than that. That is what it means. Suppose, i steal food, for example, cake from the bakeshop worth P 100. I gave it to you, you ate it and then there is now civil liability in favor of the owner of the bakeshop on account of the theft. Question: Are you liable because you acquired the cake gratuitously and you were satisfied because you ate it? Are you liable for reparation in the amount of P100. Answer: No, that is not applicable to that case because this applies only when your fortune is augmented – when become richer, your income increases.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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CHAPTER THREE EXTINCTION AND SURVIVAL OF CIVIL LIABILITY Do not confuse extinction of criminal liability from the extinction of civil liability. Extinction of criminal liability is Art. 89, total extinction, Art. 94, Partial extinction.

Question: How do you distinguish civil liability Answer: According to ART. 112, civil liability is extinguished in the same manner as any obligation extinguished under the Civil Code.

Question: What are the modes of extinguishing obligations? Answer: Civil liability is extinguished by;  Payment or performance  Condonation or remission of the debt;  Confusion or merger of the rights of the creditor and debtor;  Compensation;  Novation;  Annulment  Rescission  Fulfillment of a resolutory condition and Prescription So, the modes of extinguishing civil liability are the same with the provisions of the Civil Code. There is only mode for extinction of obligations under the Civil Code which is not recognized in the Penal Code. That is the loss of the thing due by virtue of fortuitous event. Remember, when the obligor is to deliver to the oblige a determinate thing, and that determinate thing was lost because of fortuitous event, the obligation is totally extinguished.

PROBLEM: Somebody was stealing cattle, While the cattle was in his possession, the cows died because of some disease. Question: Is the accused, upon conviction, liable to pay for the value of the cattle. So, that is the only mode not recognized under the Penal Code. The grounds for extinction of criminal liability are separate and distinct from the grounds of extinction of civil liability. Pardon by the President, or amnesty may extinguish the criminal liability, but does not extinguish the civil liability because that is separate and distinct. The President can pardon the criminal liability, but not the civil liability. You have to separate the rules" in extinguishing criminal liability from the rules extinguishing civil liability. That is very clear under Art. 113. Question: Is there an obligation on the part of the accused despite the pardon to still pay the civil liability? Answer: Article 113 is very clear. Pardon does not wipe out civil liability.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Republic of the Philippines Congress of the Philippines Metro Manila Begun and held in Metro Manila, on Monday, the twenty-fifth day of July, two thousand and five. Republic Act No. 9344 AN ACT ESTABLISHING A COMPREHENSIVE JUVENILE JUSTICE AND WELFARE SYSTEM, CREATING THE JUVENILE JUSTICE AND WELFARE COUNCIL UNDER THE DEPARTMENT OF JUSTICE, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: TITLE I GOVERNING PRINCIPLES CHAPTER 1 TITLE, POLICY AND DEFINITION OF TERMS Section 1. Short Title and Scope. - This Act shall be known as the "Juvenile Justice and Welfare Act of 2006." It shall cover the different stages involving children at risk and children in conflict with the law from prevention to rehabilitation and reintegration. SEC. 2. Declaration of State Policy. - The following State policies shall be observed at all times: (a) The State recognizes the vital role of children and youth in nation building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs. (b) The State shall protect the best interests of the child through measures that will ensure the observance of international standards of child protection, especially those to which the Philippines is a party. Proceedings before any authority shall be conducted in the best interest of the child and in a manner which allows the child to participate and to express himself/herself freely. The participation of children in the program and policy formulation and implementation related to juvenile justice and welfare shall be ensured by the concerned government agency. (c) The State likewise recognizes the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty and exploitation, and other conditions prejudicial to their development. (d) Pursuant to Article 40 of the United Nations Convention on the Rights of the Child, the State recognizes the right of every child alleged as, accused of, adjudged, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, taking into account the child's age and desirability of promoting his/her reintegration. Whenever appropriate and desirable, the State shall adopt measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. It shall ensure that children are dealt with in a manner appropriate to their well-being by providing for, among others, a variety of disposition measures such as care, guidance and supervision orders, counseling, probation, foster care, education and vocational training programs and other alternatives to institutional care.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(e) The administration of the juvenile justice and welfare system shall take into consideration the cultural and religious perspectives of the Filipino people, particularly the indigenous peoples and the Muslims, consistent with the protection of the rights of children belonging to these communities. (f) The State shall apply the principles of restorative justice in all its laws, policies and programs applicable to children in conflict with the law. SEC. 3. Liberal Construction of this Act. - In case of doubt, the interpretation of any of the provisions of this Act, including its implementing rules and regulations (IRRs), shall be construed liberally in favor of the child in conflict with the law. SEC. 4. Definition of Terms. - The following terms as used in this Act shall be defined as follows: (a) "Bail" refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance. (b) "Best Interest of the Child" refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (e) "Child" refers to a person under the age of eighteen (18) years. (d) "Child at Risk" refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child; (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; (4) coming from a dysfunctional or broken family or without a parent or guardian; (5) being out of school; (6) being a streetchild; (7) being a member of a gang; (8) living in a community with a high level of criminality or drug abuse; and (9) living in situations of armed conflict. (e) "Child in Conflict with the Law" refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) "Community-based Programs" refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(g) "Court" refers to a family court or, in places where there are no family courts, any regional trial court. (h) "Deprivation of Liberty" refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority. (i) "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 resorting to formal court proceedings. (j) "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. (k) "Initial Contact With-the Child" refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (I) "Intervention" refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. (m) "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. (n) "Law Enforcement Officer" refers to the person in authority or his/her agent as defined in Article 152 of the Revised Penal Code, including a barangay tanod. (0) "Offense" refers to any act or omission whether punishable under special laws or the Revised Penal Code, as amended. (p) "Recognizance" refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (q) "Restorative Justice" refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (r) "Status Offenses" refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like. (s) "Youth Detention Home" refers to a 24-hour child-caring institution managed by accredited local government units (LGUs) and licensed and/or accredited nongovernment organizations (NGOs) providing short-term residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction. (t) "Youth Rehabilitation Center" refers to a 24-hour residential care facility managed by the Department of Social Welfare and Development (DSWD), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them into their families and communities as socially functioning individuals. Physical mobility of residents of said centers may be restricted pending court disposition of the charges against them. (u) "Victimless Crimes" refers to offenses where there is no private offended party.

CHAPTER 2 PRINCIPLES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE SEC. 5. Rights of the Child in Conflict with the Law. - Every child in conflict with the law shall have the following rights, including but not limited to: (a) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; (b) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release; (c) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time; (d) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances; (e) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action; (f) the right to bail and recognizance, in appropriate cases; (g) the right to testify as a witness in hid/her own behalf under the rule on examination of a child witness; (h) the right to have his/her privacy respected fully at all stages of the proceedings; (i) the right to diversion if he/she is qualified and voluntarily avails of the same; (j) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice; (k) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty; (I) in general, the right to automatic suspension of sentence; (m) the right to probation as an alternative to imprisonment, if qualified under the Probation Law;

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(n) the right to be free from liability for perjury, concealment or misrepresentation; and (o) other rights as provided for under existing laws, rules and regulations. The State further adopts the provisions of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice or "Beijing Rules", United Nations Guidelines for the Prevention of Juvenile Delinquency or the "Riyadh Guidelines", and the United Nations Rules for the Protection of Juveniles Deprived of Liberty. SEC. 6. Minimum Age of Criminal Responsibility. - A child fifteen (15) 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 subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. SEC. 7. Determination ofAge. - The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child's birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law.

TITLE II STRUCTURES IN THE ADMINISTRATION OF JUVENILE JUSTICE AND WELFARE SEC. 8. Juvenile Justice and Welfare Council (JJWC). - A Juvenile Justice and Welfare Council (JJWC) is hereby created and attached to the Department of Justice and placed under its administrative supervision. The JJWC shall be chaired by an undersecretary of the Department of Social Welfare and Development. It shall ensure the effective implementation of this Act and coordination among the following agencies: (a) Council for the Welfare of Children (CWC); (b) Department of Education (DepEd); (c) Department of the Interior and Local Government (DILG); (d) Public Attorney's Office (PAO); (e) Bureau of Corrections (BUCOR); (f) Parole and Probation Administration (PPA) ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(g) National Bureau of Investigation (NBI); (h) Philippine National Police (PNP);. (i) Bureau of Jail Management and Penology (BJMP); (i) Commission on Human Rights (CHR); (k) Technical Education and Skills Development Authority (TESDA); (l) National Youth Commission (NYC); and (m) Other institutions focused on juvenile justice and intervention programs. The JJWC shall be composed of representatives, whose ranks shall not be lower than director, to be designated by the concerned heads of the following departments or agencies: (a) Department of Justice (DOJ); (b) Department of Social Welfare and Development (DSWD); (c) Council for the Welfare of Children (CWC) (d) Department of Education (DepEd); (e) Department of the Interior and Local Government (DILG) (f) Commission on Human Rights (CHR); (g) National Youth Commission (NYC); and (h) Two (2) representatives from NGOs, one to be designated by the Secretary of Justice and the other to be designated by the Secretary of Social Welfare and Development. The JJWC shall convene within fifteen (15) days from the effectivity of this Act. The Secretary of Justice and the Secretary of Social Welfare and Development shall determine the organizational structure and staffing pattern of the JJWC. The JJWC shall coordinate with the Office of the Court Administrator and the Philippine Judicial Academy to ensure the realization of its mandate and the proper discharge of its duties and functions, as herein provided. SEC. 9. Duties and Functions of the JJWC. - The JJWC shall have the following duties and functions: (a) To oversee the implementation of this Act; (b) To advise the President on all matters and policies relating to juvenile justice and welfare; (c) To assist the concerned agencies in the review and redrafting of existing policies/regulations or in the formulation of new ones in line with the provisions of this Act; (d) To periodically develop a comprehensive 3 to 5-year national juvenile intervention program, with the participation of government agencies concerned, NGOs and youth organizations; (e) To coordinate the implementation of the juvenile intervention programs and activities by national government agencies and other activities which may have an important bearing on the success of the entire national juvenile intervention program. All programs relating to juvenile justice and welfare shall be adopted in consultation with the JJWC; (f) To formulate and recommend policies and strategies in consultation with children for the prevention of juvenile delinquency and the administration of justice, as well as for the treatment and rehabilitation of the children in conflict with the law; (g) To collect relevant information and conduct continuing research and support evaluations and studies on all matters relating to juvenile justice and welfare, such as but not limited to: (1) the performance and results achieved by juvenile intervention programs and by activities of the local government units and other government agencies; (2) the periodic trends, problems and causes of juvenile delinquency and crimes; and (3) the particular needs of children in conflict with the law in custody.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The data gathered shall be used by the JJWC in the improvement of the administration of juvenile justice and welfare system. The JJWC shall set up a mechanism to ensure that children are involved in research and policy development. (h) Through duly designated persons and with the assistance of the agencies provided in the preceding section, to conduct regular inspections in detention and rehabilitation facilities and to undertake spot inspections on their own initiative in order to check compliance with the standards provided herein and to make the necessary recommendations to appropriate agencies; (i) To initiate and coordinate the conduct of trainings for the personnel of the agencies involved in the administration of the juvenile justice and welfare system and the juvenile intervention program; (j) To submit an annual report to the President on the implementation of this Act; and (k) To perform such other functions as may be necessary to implement the provisions of this Act. SEC. 10. Policies and Procedures on Juvenile Justice and Welfare. - All government agencies enumerated in Section 8 shall, with the assistance of the JJWC and within one (1) year from the effectivity of this Act, draft policies and procedures consistent with the standards set in the law. These policies and procedures shall be modified accordingly in consultation with the JJWC upon the completion of the national juvenile intervention program as provided under Section 9 (d). SEC. 11. Child Rights Center (CRC). - The existing Child Rights Center of the Commission on Human Rights shall ensure that the status, rights and interests of children are upheld in accordance with the Constitution and international instruments on human rights. The CHR shall strengthen the monitoring of government compliance of all treaty obligations, including the timely and regular submission of reports before the treaty bodies, as well as the implementation and dissemination of recommendations and conclusions by government agencies as well as NGOs and civil society.

TITLE III PREVENTION OF JUVENILE DELINQUENCY CHAPTER 1 THE ROLE OF THE DIFFERENT SECTORS SEC. 12. The Family. - The family shall be responsible for the primary nurturing and rearing of children which is critical in delinquency prevention. As far as practicable and in accordance with the procedures of this Act, a child in conflict with the law shall be maintained in his/her family. SEC. 13. The Educational System. - Educational institutions shall work together with families, community organizations and agencies in the prevention of juvenile delinquency and in the rehabilitation and reintegration of child in conflict with the law. Schools shall provide adequate, necessary and individualized educational schemes for children manifesting difficult behavior and children in conflict with the law. In cases where children in conflict with the law are taken into custody or detained in rehabilitation centers, they should be provided the opportunity to continue learning under an alternative learning system with basic literacy program or non- formal education accreditation equivalency system. SEC. 14. The Role of the Mass Media. - The mass media shall play an active role in the promotion of child rights, and delinquency prevention by relaying consistent messages through a balanced approach. Media practitioners shall, therefore, have the duty to maintain the highest critical and professional standards in reporting and covering cases of children in conflict with the law. In all publicity concerning children, the best interest of the child should be the primordial and paramount concern. Any undue, inappropriate and sensationalized publicity of any case involving a child in conflict with the law is hereby declared a violation of the child's rights.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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SEC. 15. Establishment and Strengthening of Local Councils for the Protection of Children. - Local Councils for the Protection of Children (LCPC) shall be established in all levels of local government, and where they have already been established, they shall be strengthened within one (1) year from the effectivity of this Act. Membership in the LCPC shall be chosen from among the responsible members of the community, including a representative from the youth sector, as well as representatives from government and private agencies concerned with the welfare of children. The local council shall serve as the primary agency to coordinate with and assist the LGU concerned for the adoption of a comprehensive plan on delinquency prevention, and to oversee its proper implementation. One percent (1%) of the internal revenue allotment of barangays, municipalities and cities shall be allocated for the strengthening and implementation of the programs of the LCPC: Provided, That the disbursement of the fund shall be made by the LGU concerned. SEC. 16. Appointment of Local Social Welfare and Development Officer. - All LGUs shall appoint a duly licensed social worker as its local social welfare and development officer tasked to assist children in conflict with the law. SEC. 17. The Sangguniang Kabataan. - The Sangguniang Kabataan (SK) shall coordinate with the LCPC in the formulation and implementation of juvenile intervention and diversion programs in the community.

CHAPTER 2 COMPREHENSIVE JUVENILE INTERVENTION PROGRAM SEC. 18. Development of a Comprehensive Juvenile Intervention Program. - A Comprehensive juvenile intervention program covering at least a 3-year period shall be instituted in LGUs from the barangay to the provincial level. The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the child-focused institutions, NGOs, people's organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs. Such programs shall be implemented consistent with the national program formulated and designed by the JJWC. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. SEC. 19. Community-based Programs on Juvenile Justice and Welfare. - Community-based programs on juvenile justice and welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counseling and guidance to them and their families. These programs shall consist of three levels: (a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent re-offending.

TITLE IV TREATMENT OF CHILDREN BELOW THE AGE OF CRIMINAL RESPONSIBILITY ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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SEC. 20. Children Below the Age of Criminal Responsibility. - If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: a duly registered nongovernmental or religious organization; a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); a local social welfare and development officer; or when and where appropriate, the DSWD. If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise ,known as "The Child and Youth Welfare Code".

TITLE V JUVENILE JUSTICE AND WELFARE SYSTEM CHAPTER I INITIAL CONTACT WITH THE CHILD SEC. 21. Procedure for Taking the Child into Custody. - From the moment a child is taken into custody, the law enforcement officer shall: (a) Explain to the child in simple language and in a dialect that he/she can understand why he/she is being placed under custody and the offense that he/she allegedly committed; (b) Inform the child of the reason for such custody and advise the child of his/her constitutional rights in a language or dialect understood by him/her; (e) Properly identify himself/herself and present proper identification to the child; (d) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on the child in conflict with the law; (e) Avoid displaying or using any firearm, weapon, handcuffs or other instruments of force or restraint, unless absolutely necessary and only after all other methods of control have been exhausted and have failed; (f) Refrain from subjecting the child in conflict with the law to greater restraint than is necessary for his/her apprehension; (g) Avoid violence or unnecessary force; (h) Determine the age of the child pursuant to Section 7 of this Act; (i) Immediately but not later than eight (8) hours after apprehension, turn over custody of the child to the Social Welfare and Development Office or other accredited NGOs, and notify the child's apprehension. The social welfare and development officer shall explain to the child and the child's parents/guardians the consequences of the child's act with a view towards counseling and rehabilitation, diversion from the criminal justice system, and reparation, if appropriate; (j) Take the child immediately to the proper medical and health officer for a thorough physical and mental examination. The examination results shall be kept confidential unless otherwise ordered by the Family Court. Whenever the medical treatment is required, steps shall be immediately undertaken to provide the same; (k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders; (l) Record the following in the initial investigation: 1. Whether handcuffs or other instruments of restraint were used, and if so, the reason for such; 2. That the parents or guardian of a child, the DSWD, and the PA0 have been informed of the apprehension and the details thereof; and 3. The exhaustion of measures to determine the age of a child and the precise details of the physical and medical examination or the failure to submit a child to such examination; and ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(m) Ensure that all statements signed by the child during investigation shall be witnessed by the child's parents or guardian, social worker, or legal counsel in attendance who shall affix his/her signature to the said statement. A child in conflict with the law shall only be searched by a law enforcement officer of the same gender and shall not be locked up in a detention cell. SEC. 22. Duties During Initial Investigation. - The law enforcement officer shall, in his/her investigation, determine where the case involving the child in conflict with the law should be referred. The taking of the statement of the child shall be conducted in the presence of the following: (1) child's counsel of choice or in the absence thereof, a lawyer from the Public Attorney's Office; (2) the child's parents, guardian, or nearest relative, as the case may be; and (3) the local social welfare and development officer. In the absence of the child's parents, guardian, or nearest relative, and the local social welfare and development officer, the investigation shall be conducted in the presence of a representative of an NGO, religious group, or member of the BCPC. After the initial investigation, the local social worker conducting the same may do either of the following: (a) Proceed in accordance with Section 20 if the child is fifteen (15) years or below or above fifteen (15) but below eighteen (18) years old, who acted without discernment; and (b) If the child is above fifteen (15) years old but below eighteen (18) and who acted with discernment, proceed to diversion under the following chapter.

CHAPTER 2 DIVERSION SEC. 23. System of Diversion. - Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. SEC. 24. Stages Where Diversion May be Conducted. - Diversion may be conducted at the Katarungang Pambarangay, the police investigation or the inquest or preliminary investigation stage and at all 1evels and phases of the proceedings including judicial level. SEC. 25. Conferencing, Mediation and Conciliation. - A child in conflict with law may undergo conferencing, mediation or conciliation outside the criminal justice system or prior to his entry into said system. A contract of diversion may be entered into during such conferencing, mediation or conciliation proceedings. SEC. 26. Contract of Diversion. - If during the conferencing, mediation or conciliation, the child voluntarily admits the commission of the act, a diversion program shall be developed when appropriate and desirable as determined under Section 30. Such admission shall not be used against the child in any subsequent judicial, quasi-judicial or administrative proceedings. The diversion program shall be effective and binding if accepted by the parties concerned. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The acceptance shall be in writing and signed by the parties concerned and the appropriate authorities. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion proceedings shall be completed within forty-five (45) days. The period of prescription of the offense shall be suspended until the completion of the diversion proceedings but not to exceed forty-five (45) days. The child shall present himself/herself to the competent authorities that imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action. The period of prescription of the offense shall be suspended during the effectivity of the diversion program, but not exceeding a period of two (2) years. SEC. 27. Duty of the Punong Barangay When There is No Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Punong Barangay handling the case shall, within three (3) days from determination of the absence of jurisdiction over the case or termination of the diversion proceedings, as the case may be, forward the records of the case of the child to the law enforcement officer, prosecutor or the appropriate court, as the case may be. Upon the issuance of the corresponding document, certifying to the fact that no agreement has been reached by the parties, the case shall be filed according to the regular process. SEC. 28. Duty of the Law Enforcement Officer When There is No Diversion. - If the offense does not fall under Section 23(a) and (b), or if the child, his/her parents or guardian does not consent to a diversion, the Women and Children Protection Desk of the PNP, or other law enforcement officer handling the case of the child under custody, to the prosecutor or judge concerned for the conduct of inquest and/or preliminary investigation to determine whether or not the child should remain under custody and correspondingly charged in court. The document transmitting said records shall display the word "CHILD" in bold letters. SEC. 29. Factors in Determining Diversion Program. - In determining whether diversion is appropriate and desirable, the following factors shall be taken into consideration: (a) The nature and circumstances of the offense charged; (b) The frequency and the severity of the act; (c) The circumstances of the child (e.g. age, maturity, intelligence, etc.); (d) The influence of the family and environment on the growth of the child; (e) The reparation of injury to the victim; (f) The weight of the evidence against the child; (g) The safety of the community; and (h) The best interest of the child. SEC. 30. Formulation of the Diversion Program. - In formulating a diversion program, the individual characteristics and the peculiar circumstances of the child in conflict with the law shall be used to formulate an individualized treatment. The following factors shall be considered in formulating a diversion program for the child: (a) The child's feelings of remorse for the offense he/she committed; (b) The parents' or legal guardians' ability to guide and supervise the child; (c) The victim's view about the propriety of the measures to be imposed; and (d) The availability of community-based programs for rehabilitation and reintegration of the child. SEC. 31. Kinds of Diversion Programs. - The diversion program shall include adequate socio-cultural and psychological responses and services for the child. At the different stages where diversion may be resorted to, the following diversion programs may be agreed upon, such as, but not limited to:

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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(a) At the level of the Punong Barangay: (1) Restitution of property; (2) Reparation of the damage caused; (3) Indemnification for consequential damages; (4) Written or oral apology; (5) Care, guidance and supervision orders; (6) Counseling for the child in conflict with the law and the child's family; (7)Attendance in trainings, seminars and lectures on: (i) anger management skills; (ii) problem solving and/or conflict resolution skills; (iii) values formation; and (iv) other skills which will aid the child in dealing with situations which can lead to repetition of the offense; (8) Participation in available community-based programs, including community service; or (9) Participation in education, vocation and life skills programs. (b) At the level of the law enforcement officer and the prosecutor: (1) Diversion programs specified under paragraphs (a)(1) to (a)(9) herein; and (2) Confiscation and forfeiture of the proceeds or instruments of the crime; (c) At the level of the appropriate court: (1) Diversion programs specified under paragraphs(a)and (b) above; (2) Written or oral reprimand or citation; (3) Fine: (4) Payment of the cost of the proceedings; or (5) Institutional care and custody.

CHAPTER 3 PROSECUTION SEC. 32. Duty of the Prosecutor's Office. - There shall be a specially trained prosecutor to conduct inquest, preliminary investigation and prosecution of cases involving a child in conflict with the law. If there is an allegation of torture or illtreatment of a child in conflict with the law during arrest or detention, it shall be the duty of the prosecutor to investigate the same. SEC. 33. Preliminary Investigation and Filing of Information. - The prosecutor shall conduct a preliminary investigation in the following instances: (a) when the child in conflict with the law does not qualify for diversion: (b) when the child, his/her parents or guardian does not agree to diversion as specified in Sections 27 and 28; and (c) when considering the assessment and recommendation of the social worker, the prosecutor determines that diversion is not appropriate for the child in conflict with the law. Upon serving the subpoena and the affidavit of complaint, the prosecutor shall notify the Public Attorney's Office of such service, as well as the personal information, and place of detention of the child in conflict with the law. Upon determination of probable cause by the prosecutor, the information against the child shall be filed before the Family Court within forty-five (45) days from the start of the preliminary investigation.

CHAPTER 4 COURT PROCEEDINGS ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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SEC. 34. Bail. - For purposes of recommending the amount of bail, the privileged mitigating circumstance of minority shall be considered. SEC. 35. Release on Recognizance. - Where a child is detained, the court shall order: (a) the release of the minor on recognizance to his/her parents and other suitable person; (b) the release of the child in conflict with the law on bail; or (c) the transfer of the minor to a youth detention home/youth rehabilitation center. The court shall not order the detention of a child in a jail pending trial or hearing of his/her case. SEC. 36. Detention of the Child Pending Trial. - Children detained pending trial may be released on bail or recognizance as provided for under Sections 34 and 35 under this Act. In all other cases and whenever possible, detention pending trial may be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Institutionalization or detention of the child pending trial shall be used only as a measure of last resort and for the shortest possible period of time. Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides. In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court. The center or agency concerned shall be responsible for the child's appearance in court whenever required. SEC. 37. Diversion Measures. - Where the maximum penalty imposed by law for the offense with which the child in conflict with the law is charged is imprisonment of not more than twelve (12) years, regardless of the fine or fine alone regardless of the amount, and before arraignment of the child in conflict with the law, the court shall determine whether or not diversion is appropriate. SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various chcumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. SEC. 39. Discharge of the Child in Conflict with the Law. - Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the conditions of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. SEC. 41. Credit in Service of Sentence. - The child in conflict with the law shall be credited in the services of his/her sentence with the full time spent in actual commitment and detention under this Act. SEC. 42. Probation as an Alternative to Imprisonment. - The court may, after it shall have convicted and sentenced a child in conflict with the law, and upon application at any time, place the child on probation in lieu of service of his/her sentence taking into account the best interest of the child. For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law of 1976", is hereby amended accordingly.

CHAPTER 5 CONFIDENTIALITY OF RECORDS AND PROCEEDINGS SEC. 43. Confedentiality of Records and Proceedings. - All records and proceedings involving children in conflict with the law from initial contact until final disposition of the case shall be considered privileged and confidential. The public shall be excluded during the proceedings and the records shall not be disclosed directly or indirectly to anyone by any of the parties or the participants in the proceedings for any purpose whatsoever, except to determine if the child in conflict with the law may have his/hes sentence suspended or if he/she may be granted probation under the Probation Law, or to enforce the civil liability imposed in the criminal action. The component authorities shall undertake all measures to protect this confidentiality of proceedings, including nondisclosure of records to the media, maintaining a separate police blotter for cases involving children in conflict with the law and adopting a system of coding to conceal material information which will lead to the child's identity. Records of a child in conflict with the law shall not be used in subsequent proceedings for cases involving the same offender as an adult, except when beneficial for the offender and upon his/her written consent. A person who has been in conflict with the law as a child shall not be held under any provision of law, to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him/her for any purpose.

TITLE VI REHABILITATION AND REINTEGRATION SEC. 44. Objective of Rehabilitation and Reintegration. - The objective of rehabilitation and reintegration of children in conflict with the law is to provide them with interventions, approaches and strategies that will enable them to improve their social functioning with the end goal of reintegration to their families and as productive members of their communities. SEC. 45. Court Order Required. - No child shall be received in any rehabilitation or training facility without a valid order issued by the court after a hearing for the purpose. The details of this order shall be immediately entered in a register exclusively for children in conflict with the law. No child shall be admitted in any facility where there is no such register. SEC. 46, Separate Facilities from Adults. - In all rehabilitation or training facilities, it shall be mandatory that children shall be separated from adults unless they are members of the same family. Under no other circumstance shall a child in conflict with the law be placed in the same confinement as adults. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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The rehabilitation, training or confinement area of children in conflict with the law shall provide a home environment where children in conflict with the law can be provided with quality counseling and treatment. SEC. 47. Female Children. - Female children in conflict with the law placed in an institution shall be given special attention as to their personal needs and problems. They shall be handled by female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict with the law. SEC. 48. Gender-Sensitivity Training. - No personnel of rehabilitation and training facilities shall handle children in conflict with the law without having undergone gender sensitivity training. SEC. 49. Establishment of Youth Detention Homes. - The LGUs shall set aside an amount to build youth detention homes as mandated by the Family Courts Act. Youth detention homes may also be established by private and NGOs licensed and accredited by the DSWD, in consultation with the JJWC. SEC. 50. Care and Maintenance of the Child in Conflict with the Law. - The expenses for the care and maintenance of a child in conflict with the law under institutional care shall be borne by his/her parents or those persons liable to support him/her: Provided, That in case his/her parents or those persons liable to support him/her cannot pay all or part of said expenses, the municipality where the offense was committed shall pay one-third (1/3) of said expenses or part thereof; the province to which the municipality belongs shall pay one-third (1/3) and the remaining one-third (1/3) shall be borne by the national government. Chartered cities shall pay two-thirds (2/3) of said expenses; and in case a chartered city cannot pay said expenses, part of the internal revenue allotments applicable to the unpaid portion shall be withheld and applied to the settlement of said obligations: Provided, further, That in the event that the child in conflict with the law is not a resident of the municipality/city where the offense was committed, the court, upon its determination, may require the city/municipality where the child in conflict with the law resides to shoulder the cost. All city and provincial governments must exert effort for the immediate establishment of local detention homes for children in conflict with the law. SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. SEC. 52. Rehabilitation of Children in Conflict with the Law. - Children in conflict with the law, whose sentences are suspended may, upon order of the court, undergo any or a combination of disposition measures best suited to the rehabilitation and welfare of the child as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. If the community-based rehabilitation is availed of by a child in conflict with the law, he/she shall be released to parents, guardians, relatives or any other responsible person in the community. Under the supervision and guidance of the local social welfare and development officer, and in coordination with his/her parents/guardian, the child in conflict with the law shall participate in community-based programs, which shall include, but not limited to: (1) Competency and life skills development; (2) Socio-cultural and recreational activities; (3) Community volunteer projects; (4) Leadership training; (5) Social services; (6) Homelife services; (7) Health services; . (8) Spiritual enrichment; and (9) Community and family welfare services. ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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In accordance therewith, the family of the child in conflict with the law shall endeavor to actively participate in the community-based rehabilitation. Based on the progress of the youth in the community, a final report will be forwarded by the local social welfare and development officer to the court for final disposition of the case. If the community-based programs are provided as diversion measures under Chapter II, Title V, the programs enumerated above shall be made available to the child in conflict with the law. SEC. 53. Youth Rehabilitation Center. - The youth rehabilitation center shall provide 24-hour group care, treatment and rehabilitation services under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them in their families and communities as socially functioning individuals. A quarterly report shall be submitted by the center to the proper court on the progress of the children in conflict with the law. Based on the progress of the youth in the center, a final report will be forwarded to the court for final disposition of the case. The DSWD shall establish youth rehabilitation centers in each region of the country. SEC. 54. Objectives of Community Based Programs. - The objectives of community-based programs are as follows: (a) Prevent disruption in the education or means of livelihood of the child in conflict with the law in case he/she is studying, working or attending vocational learning institutions; (b) Prevent separation of the child in conflict with the law from his/her parents/guardians to maintain the support system fostered by their relationship and to create greater awareness of their mutual and reciprocal responsibilities; (c) Facilitate the rehabilitation and mainstreaming of the child in conflict with the law and encourage community support and involvement; and (d) Minimize the stigma that attaches to the child in conflict with the law by preventing jail detention. SEC. 55. Criteria of Community-Based Programs. - Every LGU shall establish community-based programs that will focus on the rehabilitation and reintegration of the child. All programs shall meet the criteria to be established by the JJWC which shall take into account the purpose of the program, the need for the consent of the child and his/her parents or legal guardians, and the participation of the child-centered agencies whether public or private. SEC. 56. After-Care Support Services for Children in Conflict with the Law. - Children in conflict with the law whose cases have been dismissed by the proper court because of good behavior as per recommendation of the DSWD social worker and/or any accredited NGO youth rehabilitation center shall be provided after-care services by the local social welfare and development officer for a period of at least six (6) months. The service includes counseling and other communitybased services designed to facilitate social reintegration, prevent re-offending and make the children productive members of the community.

TITLE VII GENERAL PROVISIONS CHAPTER 1 EXEMPTING PROVISIONS SEC. 57. Status Offenees. - Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child. SEC. 58. Offenses Not Applicable to Children. - Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of vagrancy and prostitution under Section 202 of the Revised Penal Code, of mendicancy under Presidential Decree No. 1563, and sniffing of rugby under Presidential Decree No. 1619, such prosecution being ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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inconsistent with the United Nations Convention on the Rights of the Child: Provided, That said persons shall undergo appropriate counseling and treatment program. SEC. 59. Exemption from the Application of Death Penalty. - The provisions of the Revised Penal Code, as amended, Republic Act No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, and other special laws notwithstanding, no death penalty shall be imposed upon children in conflict with the law.

CHAPTER 2 PROHIBITED ACTS SEC. 60. Prohibition Against Labeling and Shaming. - In the conduct of the proceedings beginning from the initial contact with the child, the competent authorities must refrain from branding or labeling children as young criminals, juvenile delinquents, prostitutes or attaching to them in any manner any other derogatory names. Likewise, no discriminatory remarks and practices shall be allowed particularly with respect to the child's class or ethnic origin. SEC. 61. Other Prohibited Acts. - The following and any other similar acts shall be considered prejudicial and detrimental to the psychological, emotional, social, spiritual, moral and physical health and well-being of the child in conflict with the law and therefore, prohibited: (a) Employment of threats of whatever kind and nature; (b) Employment of abusive, coercive and punitive measures such as cursing, beating, stripping, and solitary confinement; (c) Employment of degrading, inhuman end cruel forms of punishment such as shaving the heads, pouring irritating, corrosive or harmful substances over the body of the child in conflict with the law, or forcing him/her to walk around the community wearing signs which embarrass, humiliate, and degrade his/her personality and dignity; and (d) Compelling the child to perform involuntary servitude in any and all forms under any and all instances.

CHAPTER 3 PENAL PROVISION SEC. 62. Violation of the Provisions of this Act or Rules or Regulations in General. - Any person who violates any provision of this Act or any rule or regulation promulgated in accordance thereof shall, upon conviction for each act or omission, be punished by a fine of not less than Twenty thousand pesos (P20,000.00) but not more than Fifty thousand pesos (P50,000.00) or suffer imprisonment of not less than eight (8) years but not more than ten (10) years, or both such fine and imprisonment at the discretion of the court, unless a higher penalty is provided for in the Revised Penal Code or special laws. If the offender is a public officer or employee, he/she shall, in addition to such fine and/or imprisonment, be held administratively liable and shall suffer the penalty of perpetual absolute disqualification.

CHAPTER 4 APPROPRIATION PROVISION SEC. 63. Appropriations. - The amount necessary to carry out the initial implementation of this Act shall be charged to the Office of the President. Thereafter, such sums as may be necessary for the continued implementation of this Act shall be included in the succeeding General Appropriations Act. An initial amount of Fifty million pesos (P50,000,000.00) for the purpose of setting up the JJWC shall be taken from the proceeds of the Philippine Charity Sweepstakes Office.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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TITLE VIII TRANSITORY PROVISIONS SEC. 64. Children in Conflict with the Law Fifteen (15) Years Old and Below. - Upon effectivity of this Act, cases of children fifteen (15) years old and below at the time of the commission of the crime shall immediately be dismissed and the child shall be referred to the appropriate local social welfare and development officer. Such officer, upon thorough assessment of the child, shall determine whether to release the child to the custody of his/her parents, or refer the child to prevention programs as provided under this Act. Those with suspended sentences and undergoing rehabilitation at the youth rehabilitation center shall likewise be released, unless it is contrary to the best interest of the child. SEC. 65. Children Detained Pending Dial. - If the child is detained pending trial, the Family Court shall also determine whether or not continued detention is necessary and, if not, determine appropriate alternatives for detention. If detention is necessary and he/she is detained with adults, the court shall immediately order the transfer of the child to a youth detention home. SEC. 66. Inventory of "Locked-up" and Detained Children in Conflict with the Law. - The PNP, the BJMP and the BUCOR are hereby directed to submit to the JJWC, within ninety (90) days from the effectivity of this Act, an inventory of all children in conflict with the law under their custody. SEC. 67. Children Who Reach the Age of Eighteen (18) Years Pending Diversion and Court Proceedings. - If a child reaches the age of eighteen (18) years pending diversion and court proceedings, the appropriate diversion authority in consultation with the local social welfare and development officer or the Family Court in consultation with the Social Services and Counseling Division (SSCD) of the Supreme Court, as the case may be, shall determine the appropriate disposition. In case the appropriate court executes the judgment of conviction, and unless the child in conflict the law has already availed of probation under Presidential Decree No. 603 or other similar laws, the child may apply for probation if qualified under the provisions of the Probation Law. SEC. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. They shall be entitled to appropriate dispositions provided under this Act and their sentences shall be adjusted accordingly. They shall be immediately released if they are so qualified under this Act or other applicable law.

TITLE IX FINAL PROVISIONS SEC. 69. Rule Making Power. - The JJWC shall issue the IRRs for the implementation of the provisions of this act within ninety (90) days from the effectivity thereof. SEC. 70. Separability Clause. - If, for any reason, any section or provision of this Act is declared unconstitutional or invalid by the Supreme Court, the other sections or provisions hereof not dfected by such declaration shall remain in force and effect. SEC. 71. Repealing Clause. - All existing laws, orders, decrees, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly. SEC. 72. Effectivity. - This Act shall take effect after fifteen (15) days from its publication in at least two (2) national newspapers of general circulation.

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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Approved, FRANKLIN DRILON President of the Senate

JOSE DE VENECIA JR. Speaker of the House of Representatives

This Act which is a consolidation of Senate Bill No. 1402 and House Bill No. 5065 was finally passed by the Senate and the House of Representatives on March 22, 2006. OSCAR G. YABES Secretary of Senate

ROBERTO P. NAZARENO Secretary General House of Represenatives

Approved: April 28, 2006 GLORIA MACAPAGAL-ARROYO President of the Philippines

ACADCOM 2004: Antoinette Principe, Alex Blaise Cunanan, Joji Bernadette Ancog, Jerry Catague, Roman Bondaon, Chona Cabañero ACADCOM 2007: Randolf Esparagoza, Jette Roy Sanchez, Jose Charito Cortez, Zaldy Lu, Ryan Reyes & Marilou dela Cruz

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