Memory Aid - Book I

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commission.

MEMORY AID IN CRIMINAL LAW BOOK ONE 

EXCEPTION: a. When a new statute dealing with the crime established conditions more lenient or favorable to the accused, it can be given a retroactive effect.

CRIMINAL LAW – The branch or division of law which defines crimes, treats of their nature and provides for the punishment.

a.

LIMITATIONS ON THE POWER OF CONGRESS TO ENACT PENAL LAWS 1. must not violate the equal protection clause of the Constitution. 2. must not partake the nature of an ―ex post facto law‖. 3. must not partake of the nature of a ―bill of attainder‖. 4. must not impose cruel and unusual punishment nor excessive fines.

CHARACTERISTICS OF CRIMINAL LAW 1. GENERAL, in that criminal law is binding on all persons who live or sojourn in Philippine territory (Art. 14, New Civil Code.). EXCEPTIONS: a. Those who are exempted by treaty stipulations. b. Those who are exempted by laws of preferential application c. Those who are exempted by virtue of the principles of public internal law (such as sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and their charges d’affaires. But consuls, vice-consuls and other commercial representatives of foreign nations do not possess the status of, and cannot claim the same privileges and immunities accorded to ambassadors and ministers (Wheaton, International Law). 2. TERRITORIAL, in that criminal laws of the Philippines, as a rule, are enforceable only within its territory. EXCEPTION: a. Those provided under Art. 2 of the Revised Penal Code.

b.

 BUT THIS EXCEPTION HAS NO APPLICATION WHEN: the new law is expressly made inapplicable to pending actions or existing causes of actions. the offender is a habitual criminal.

EFFECTS OF REPEAL OF PENAL LAW 1. If the repeal makes the penalty lighter in the new law, the new law shall be applied. Except when the offender is a habitual delinquent, or when the new law is made inapplicable to pending actions or existing causes of action. 2. If the new law imposes a heavier penalty, the law in force at the time of the commission of the offense shall be applied. 3. If the new law totally repeals the existing law so that the act which was penalized under the old law is no longer punishable, the crime is obliterated.

ART. I. TIME WHEN THE ACT TAKES EFFECT. TWO SCHOOLS OF THOUGHT IN CRIMINAL LAW 1.

2.

Classical - the basis of criminal liability is human free will, and the purpose of the penalty is retribution. Positivists- man is subdued by a strange and morbid phenomenon which constrains him to do wrong, in spite of or contrary to his own volition; crimes are penalized distinctly in each particular case.

ART. 2. APPLICATION OF ITS PROVISIONS This article is an exception to the principle of Generality of penal laws.

VESSELS 3. PROSPECTIVE, in that a penal law cannot make an act punishable in a manner in which it was not punishable when committed. As provided in Article 366 of the Revised penal Code, crimes are punished under the laws in force at the time of their

1.

2.

A Philippine vessel or aircraft must be understood as that which is registered in the Philippine Bureau of Customs. Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the

1 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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3.

home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. In case vessels are in the ports or territorial waters of a foreign country, a distinction must be made between the merchant ships and warships. The former are more or less subjected to the territorial laws. Warships are always reputed to be the territory of the country to which they belong and cannot be subjected to the laws of another state.

ART. 3. FELONIES GENERAL ELEMENTS OF FELONIES: 1.

2.

3.

That there must be an act or omission. But only external acts are punishable, internal acts are beyond the sphere of penal laws. That the act or omission must be punishable by the Revised Penal Code; the reason being, ―nullum crimen, nulla poena sine lege‖- there is no crime when there is no law punishing it. That the act is performed or the omission incurred by means of dolo or culpa.

CLASSIFICATION OF FELONIES ACCORDING TO THE MEANS BY WHICH THEY ARE COMMITTED 1.

2.

Intentional felonies- the act is performed with deliberate intent or malice. The offender, in performing the act or in incurring the omission, has the intention to cause an injury to another. REQUISITES OF DOLO OR MALICE: 1. FREEDOM; 2. INTELLIGENCE; 3. INTENT while doing the act or omitting to do the act. Criminal intent is presumed from the commission of an unlawful act. Culpable felonies- the act or omission of the offender is not malicious. The injury caused by the offender to another person is ―unintentional‖, it being simply the incident of another act performed without malice. REQUISITES OF CULPA: Criminal intent is replaced by ―negligence and imprudence‖ in felonies committed by means of culpa. Such negligence or indifference to duty or to consequence is, in law, equivalent to criminal intent. Hence, it is still consistent with the rule that: ―a crime is not committed, if the mind of the person performing the act complained of be innocent‖. REASON FOR PUNISHING ACTS OF NEGLIGENCE: A man must use common sense, and

exercise due reflection in all his acts; it is his duty to be cautious, careful and prudent, if not from instinct, then through fear of incurring punishment. 3.

Mala Prohibita- this is the third class of crimes specifically punishable by SPECIAL LAWS, and where criminal intent (or criminal negligence) is not, as a rule, necessary--- it being sufficient that the offender has the intent to perpetrate the act prohibited by the special law.  When the doing of an act is prohibited by a special law, the act is injurious to public welfare and the doing of the prohibited act is the crime itself. The act alone, irrespective of its motives, constitutes the offense, and so good faith is not a defense.  However, when the act penalized under the Special Law is inherently wrong, good faith and lack of criminal intent are valid defenses.

MALA IN SE AND MALA PROHIBITA 1. Malum in Se – (bad per se) violation of the RPC 2. Malum Prohibitum – violation of special penal laws

DISTINCTIONS (CODE: G-CAMP) Malum in se Malum prohibitum 1. Criminal liability is based on the MORAL TRAIT of the offender, that is why liability would only arise when there is dolo or culpa in the commission of the punishable act.

1. The moral trait of the offender is NOT considered, it is enough that the prohibited act be voluntarily done.

2. GOOD FAITH or lack of criminal intent is a valid defense, unless the crime is the result of culpa.

2. Good faith is NOT a defense.

3. The degree of ACCOMPLISHME NT of the crime is taken into account in punishing the offender. Thus, there are attempted, frustrated and consummated stages in the

3. The act gives rise to a crime only when it is consummated. There are NO attempted or frustrated stages.

2 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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Malum in se

Malum prohibitum

commission of the crime. 4. Penalty may vary depending on the presence or absence of CIRCUMSTANCES.

4. Mitigating aggravating circumstances NOT taken account imposing penalty.

and

5. Where there are more than one offender, the degree of PARTICIPATION of each in the commission of the crime is taken into account in imposing the penalty. Thus offenders are classified principals, accomplices and accessories.

5. The degree of participation of any offender is NOT considered. All those who perpetrated the prohibited act are penalized to the same extent. There is no principal or accomplice or accessory to consider.

are into in the

DISTINCTIONS INTENT 1. purpose to use particular means to effect such result 2. element of the crime, except in malum prohibita 3. essential in intentional felonies

MOTIVE 1. moving power which impels one to act 2. NOT an element of the crime 3. essential only when the identity of the perpetrator is in doubt

ART. 4. CRIMINAL LIABILITY One who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen, intended or not. REQUISITES FOR CRIMINAL LIABILITY FOR A FELONY, DIFFERENT FROM THAT INTENDED TO BE COMMITTED (ART. 4, PAR.1): 1. That an Intentional felony has been committed; and 2. That the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender (Proximate cause).  PROXIMATE CAUSE -the cause, which, in

natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred‖.  One is NOT relieved from criminal liability for the natural consequences of one’s illegal acts merely because one does not intend to produce such consequences, as long as the felony committed was the proximate cause.

CAUSES WHICH MAY PRODUCE A RESULT DIFFERENT FROM THAT INTENDED 1. Error in personae- mistake in the identity of the victim 2. Aberratio ictus- mistake in the blow 3. Praeter intentionem- the injurious result is different from that intended  MISTAKE OF FACT REQUISITES:

AS A DEFENSE

1. the act done would have been lawful had the facts been as accused believed them to be 2. the intention of the accused in doing the act was lawful 3. the mistake was without fault or carelessness on the part of the accused REQUISITES FOR AN IMPOSSIBLE CRIME (ART. 4, PAR. 2): 1. That the act performed would be an offense against persons or property 2. That the act was done with evil intent 3. That its accomplishment is inherently impossible, OR that the means employed is either inadequate or ineffectual. 4. That the act performed should not constitute a violation of another provision of the Revised Penal Code.  The purpose of the law in punishing impossible crime is to teach the offender a lesson for his criminal perversity.  There is no such thing as an attempted or frustrated impossible crime.

ART. 6. CONSUMMATED, FRUSTRATED, AND ATTEMPTED FELONIES STAGES OF OFFENSES 1. CONSUMMATED FELONY - A felony is consummated when all the elements necessary for its execution and accomplishment are present. Every crime has its own elements, which must all be present to constitute a culpable

3 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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violation of a precept of law. 2. FRUSTRATED FELONY - 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. ELEMENTS: (CODE: APNI) 1. The offender performs all the acts of execution 2. All the acts performed would produce the felony as a consequence 3. But the felony is not produced 4. By reason of causes independent of the will of the perpetrator  The belief of the accused is NOT considered. What should be considered is whether all the acts of execution performed by the offender ―would produce the felony as a consequence‖. 3. ATTEMPTED FELONY - 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 his own spontaneous desistance. ELEMENTS: 1 (Code : C-A-OA) 1. The offender commences the commission of the felony directly by overt acts 2. He does not perform all the acts of execution which should produce the felony 3. The offender’s act be not stopped by his own spontaneous desistance; 4. The non-performance of all acts of execution was due to cause or accident other than his own spontaneous desistance.  OVERT ACTS: Some physical activity or deed, indicating intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles, nor by voluntary desistance of the perpetrator will logically ripen into a concrete offense.

 INDETERMINATE OFFENSE : One where 1

A dash (-) before a letter means ―NOT‖.

the purpose of the offender in performing an act is not certain.  Only offenders who personally executed the commission of a crime can be guilty of attempted felony. But one who takes part only in the planning of a criminal act, but desists in its actual commission, is as a rule exempt from criminal liability. TWO STAGES IN THE DEVELOPMENT OF A CRIME: 1. Internal acts, such as mere ideas in the mind of a person, are not punishable even if they would constitute a crime, had they been carried out. 2. External acts cover a) preparatory acts and b) acts of execution. a. Preparatory acts are ordinarily not punishable. But preparatory acts, considered by law as independent crimes, are punishable. An example is the possession of picklocks under Art. 304, RPC, which is a preparatory act to the commission of robbery. b. Acts of execution are punishable under the Revised Penal Code. FACTORS TO CONSIDER IN DETERMINING WHETHER THE FELONY IS ATTEMPTED, FRUSTRATED OR CONSUMMATED: 1. Nature of the offense 2. Elements constituting the felony 3. Manner of committing the felony

ART. 7. LIGHT FELONIES General rule: Light felonies are punishable only when they have been consummated. Exception: If committed against persons or property, punishable even if attempted or frustrated.

ART. 8. CONSPIRACY AND PROPOSAL TO COMMIT FELONY REQUISITES OF CONSPIRACY: 1. That two or more persons came to an agreement; 2. That the agreement pertains to the commission of a felony; and 3. That the execution of the felony be decided upon. REQUISITES OF PROPOSAL: 1. That a person has decided to commit a felony; and 2. That he proposes its execution to some other person or persons.

TWO ASPECTS OF CONSPIRACY OR

4 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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PROPOSAL TO COMMIT FELONY: 1. As a manner of incurring criminal liability (general rule) 2. As a separate punishable offense (exception)

RULES ON CONSPIRACY OR PROPOSAL TO COMMIT A FELONY: a. GENERAL RULE: Mere conspiracy and proposal to commit a felony are not punishable. Reason for the rule: conspiracy and proposal to commit a crime are only preparatory acts. b. Exception: They are punishable in cases in which the law specially provides a penalty therefor. c. And when conspiracy is itself a crime, no overt act is necessary to bring about criminal liability. d. But when conspiracy is only a basis for incurring criminal liability, there must be an overt act before the co-conspirators become criminally liable. In which case, the rule is that: ―the act of one is the act of all‖.  Exception: If any of the co-conspirators would commit a crime not agreed upon, the same is NOT the act of all.  Exception to the exception: But in acts constituting a ―single indivisible offense‖, all will be liable for a crime committed by one co-conspirator, even though he performed different acts from that agreed upon in bringing about the composite crime. The others may only evade responsibility for any other crime outside of that agreed upon, if it is proved that the particular conspirator had tried to prevent the commission of such other act.

ART. 9. CLASSIFICATION OF FELONIES ACCORDING TO GRAVITY IMPORTANCE OF THE CLASSIFICATION: a. To determine whether these felonies can be complexed or not; b. To determine the prescription of the crime and the prescription of the penalty.

ART. 10. OFFENSES NOT SUBJECT TO THE PROVISIONS OF THE RPC  The provisions of the RPC on penalties cannot be applied to offenses punishable under special laws.

ART. 11. JUSTIFYING

CIRCUMSTANCES DEFINITIONS: 1. Justifying circumstances are those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. There is no civil liability, except in par. 4 of Art. 11, where the civil liability is borne by the persons benefited by the act. 2. Confession and avoidance –the accused admits the offense charged but invokes justifying or exempting circumstances to evade the penalty.

1. SELF-DEFENSE REQUISITES: 1. unlawful aggression; 2. reasonable necessity of the means employed to prevent or repel it; and 3. lack of sufficient provocation on the part of the person defending himself  Unlawful aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind.  NOT considered unlawful aggression: a. Insulting words addressed to the accused, no matter how objectionable they may have been, without physical assault, could NOT constitute unlawful aggression. b. A mere threatening or intimidating attitude, not preceded by an outward and material aggression, is NOT unlawful aggression, because is it required that the act be offensive and positively strong, showing the wrongful intent of the aggressor to cause an injury.  Necessity must be both on the means employed and the action taken.  Reasonableness of the means employed depends upon the nature and quality of the (1) weapon used by the aggressor, and (2) his physical condition, character, size and other circumstances, (3) and those of the person defending himself, (4) and also the place and occasion of the assault.  Test of reasonable necessity: What the law requires is ―rational equivalence‖, in consideration of which will enter as principal factors the following: (1) the emergency and imminent danger to which the person attacked is exposed, and (2) the instinct, more than reason, that moves or impels the defense. Proportionateness rests upon the imminent danger and not upon the harm done.  NOT required for reasonable necessity: Perfect equality between the weapons used

5 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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by the one defending himself and that of the aggressor is not required, nor material commensurability between the means of attack and defense. Reason: This is because the person assaulted does not have sufficient tranquility of mind to think and to calculate.  Reason why penal law makes self-defense lawful: It would be quite impossible for the State in all cases to prevent aggression upon its citizens (and even foreigners) and offer protection to the person justly attacked. On the other hand, it cannot be conceived that a person should succumb to an unlawful aggression without offering any resistance.  Rights included in self-defense: Self-defense includes not only the defense of the person or body of the one assaulted but also that of his rights, the enjoyment of which is protected by law. 1. Includes the right to honor. Hence, a slap on the face is considered as unlawful aggression directed against the honor of the actor, 2. Includes defense of property rights, only if there is also an actual and imminent danger on the person of the one defending.

2. DEFENSE OF RELATIVES RELATIVES THAT CAN BE DEFENDED: (CODE: SADB4) 1. Spouse 2. Ascendants 3. Descendants 4. Legitimate, natural or adopted brothers and sisters, or relatives by affinity in the same degrees. 5. Relatives by consanguinity within the fourth civil degree  That fact that the relative defended gave provocation is immaterial.

3. DEFENSE OF STRANGER WHO ARE DEEMED STRANGERS? Any person not included in the enumeration of relatives mentioned in paragraph 2 of this article, is considered stranger for the purpose of paragraph 3. Hence, even a close friend or a distant relative is a stranger within the meaning of paragraph 3.

4. AVOIDANCE OF GREATER EVIL OR INJURY  The greater evil must not be brought about by the negligence or imprudence of the actor.  Civil liability referred to in a state of

necessity is based not on the act committed, but on the benefit derived from the state of necessity. a. So the accused will not be civilly liable if he did not receive any benefit from the state of necessity. b. On the other hand, persons who did not participate in the damage or injury would be pro tanto civilly liable if they derived benefit out of the state of necessity.

5. FULFILLMENT OF DUTY; OR LAWFUL EXERCISE OF RIGHT OR OFFICE REQUISITES: 1. That the accused acted in the performance of a duty or in the lawful exercise of a right or office; 2. That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.

6. OBEDIENCE TO AN ORDER ISSUED FOR SOME LAWFUL PURPOSE REQUISITES: 1. That an order has been issued by a superior 2. That such order must be for some lawful purpose 3. That the means used by the subordinate to carry out said order is lawful  Both the person who gives the order and the person who executes it must be acting within the limitations prescribed by law.

ART. 12. EXEMPTING CIRCUMSTANCES DEFINITION: 1. Exempting circumstances (or the circumstances for non-imputability) are those grounds for exemption from punishment, because there is wanting in the agent of the crime any of the conditions which makes the act voluntary, or negligent.

BASIS: The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused.

DISTINCTIONS (CODE: AL-C-L) JUSTIFYING CIRCUMSTANCE 1. It affects the act not the actor.

EXEMPTING CIRCUMSTANCE 1. It affects the actor not the act.

6 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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2. The act is considered to have been done within the bounds of law; hence, legitimate and lawful in the eyes of the law. 3. Since the act is considered lawful, there is no crime.

4. Since there is no crime, nor a criminal, there is also no liability, criminal nor civil.

2.

The act complained of is actually wrongful, but the actor is not liable.

3. Since the act complained of is actually wrong, there is a crime; but the since actor acted without voluntariness, there is no dolo nor culpa. 4. Since there is a crime committed though there is no criminal, there is civil liability.

1. IMBECILITY OR INSANITY 1.

2.

3.

Insanity or imbecility exists when there is a complete deprivation of intelligence in committing the act, that is, the accused is (1) deprived of reason, he acts without the least discernment, or that (2) there is a total deprivation of freedom of the will. An imbecile is exempt in all cases from criminal liability. But an insane person is not so exempt if it can be shown that he acted during a lucid interval. Also, when the accused was sane at the time of the commission of the crime, but he becomes insane at the time of the trial, he is criminally liable. The trial, however, will be suspended until the mental capacity of the accused is restored, in order to afford him a fair trial.

 2 TESTS OF INSANITY: 1. Test of COGNITION– complete deprivation of intelligence in committing the crime. 2. Test of VOLITION – total deprivation of freedom of will.

2. PERSON UNDER NINE YEARS OF AGE  An infant under the age of nine years is absolutely and conclusively presumed to be incapable of committing a crime.

3. PERSON OVER NINE YEARS OF AGE AND UNDER FIFTEEN, ACTING WITHOUT DISCERNMENT 1.

Discernment means mental capacity (i.e. of a minor) to fully appreciate the consequences of an unlawful act.

2.

Discernment may be shown by (1) the manner the crime was committed, or (2) the conduct of the offender after its commission

4. A PERSON WHO WHILE PERFORMING A LAWFUL ACT WITH DUE CARE, CAUSES INJURY, BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT 1. Accident is something that happens outside the sway of our will, and although it comes about through some act of our will, lies beyond the bounds of humanly foreseeable consequences. 2. An accident presupposes lack of intention to commit the wrong done.

5. A PERSON WHO ACTS UNDER THE COMPULSION OF AN IRRESISTIBLE FORCE ELEMENTS: 1. That the compulsion is by means of physical force. 2. That the physical force must be irresistible. 3. That the physical force must come from a third person.  The irresistible force must never consist in an impulse or passion, or obfuscation. It must consist of an extraneous force coming from a third person.

6. A PERSON WHO ACTS UNDER THE IMPULSE OF UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY ELEMENTS: 1. That the threat which causes the fear is of an evil greater than, or at least equal to, that which he is required to commit; 2. That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it.  Duress as a valid defense should be based on real, imminent, or reasonable fear for one’s life or limb and should not be speculative, fanciful, or remote fear.  Hence, duress is unavailing where the accused had every opportunity to run away if he had wanted to, or to resist any possible aggression because was also armed.  DISTINGUISHED FROM IRRESISTIBLE FORCE: In irresistible force (par. 5), the offender uses violence or physical force to compel another person to commit a crime; in uncontrollable fear (par. 6), the offender employs intimidation or threat in compelling another to commit a crime.

7 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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7. A PERSON WHO FAILS TO PERFORM AN ACT REQUIRED BY LAW, WHEN PREVENTED BY SOME LAWFUL OR INSUPERABLE CAUSE. ELEMENTS: 1. That an act is required by law to be done 2. That a person fails to perform such act 3. That his failure to perform such act was due to some lawful or insuperable cause.

ABSOLUTORY CAUSES  DEFINITION: Absolutory causes are those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed.  Instigation is an absolutory cause. REASON: An instigator practically induces the ―would-be accused‖ into the commission of the offense, and himself becomes a coprincipal. Sound public policy requires that the courts condemn this practice by directing the acquittal of the accused.

ART. 13. MITIGATING CIRCUMSTANCES DEFINITION: 1. Mitigating circumstances are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty. BASIS: Mitigating circumstances are based on the diminution of either freedom of action, intelligence, or intent, or on the lesser perversity of the offender.

CLASSES OF MITIGATING CIRCUMSTANCES 1. Ordinary mitigating– those enumerated in subsections 1 to 10 of Article 13, RPC. Those mentioned in subsection 1 of Art. 13 are ordinary mitigating circumstances, if Art. 69, for instance, is not applicable. 2. Privileged mitigating – see Arts. 68, 69 and 64 of the RPC.

DISTINCTIONS (CODE: OM) ORDINARY MITIGATING CIRCUMSTANCE

PRIVILEGED MITIGATING CIRCUMSTANCE

As to the nature of the consequences

1. It can be offset by an aggravating circumstance

.

1. It can NEVER be offset by any aggravating circumstance

As to the effect

2. If not offset, it will operate to reduce the penalty to the minimum period, provided the penalty is a divisible one.

. 2. It operates to reduce the penalty by one to two DEGREES

depending upon what the law provides.

PARAGRAPH 1: INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCE 1. Applies, when all the requisites necessary to justify the act are not attendant. 2. But in the case of ―incomplete self-defense, defense of relatives, and defense of stranger‖, unlawful aggression must be present, it being an indispensable requisite.

PARAGRAPH 2: UNDER 18, OR OVER 70 YEARS OLD LEGAL EFFECTS OF VARIOUS AGES OF OFFENDER: 1. Under 9 years of age, an exempting circumstance (Art. 12, par. 2); 2. Over 9 and under 15 years of age, acting without discernment is also an exempting circumstance, (Art. 12, par. 3; see Art. 68, par. 1); 3. Minor delinquent (under 18 years of age), the sentence may be suspended (Art. 192, PD 603, as amended by PD 1179); 4. Under 18 years of age, privileged mitigating circumstance (Art. 68); 5. 18 years or over, full criminal responsibility; 6. 70 years or over, mitigating circumstance (Art. 13, par. 2), no imposition of death penalty (Art. 47, par. 1), execution of death sentence if already imposed is suspended and commuted (Art. 83).

PARAGRAPH 3: NO INTENTION TO COMMIT SO GRAVE A WRONG 1. If the offender had no intention to commit so grave a wrong as that committed, he is entitled to a mitigating circumstance. This can be taken into account only when the facts proven show that there is a notable and evident disproportion between the means employed to execute the criminal act

8 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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and its consequences. 2. This paragraph is not applicable to culpable felonies.

PARAGRAPH 4: PROVOCATION OR THREAT DEFINITION: Provocation is understood as any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating any one. REQUISITES: (Code: soi) 1. That the provocation must be sufficient. 2. That it must originate from the offended party. 3. That the provocation must be immediate to the commission of the crime by the person who is provoked.  The threat should not be offensive and positively strong. Otherwise, the threat to inflict real injury is an unlawful aggression, which may give rise to self- defense.

PARAGRAPH 5: VINDICATION OF GRAVE OFFENSE REQUISITES: 1. That there be a grave offense done to the one committing the felony (offender), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degrees; 2. That the felony is committed in vindication of such grave offense.  Immediate vindication means proximate. Hence, a lapse of time is allowed between the vindication and the doing of the grave offense.

DISTINCTIONS (CODE: D-GI) PROVOCATION 1.

2.

It is made directly only to the person committing the felony.

The cause that brought about the provocation need not be a grave offense.

3.

It is necessary that the provocation or threat immediately preceded the act, i.e., that there be no interval of time between the provocation and the commission of the crime.

3.

The vindication of the grave offense may be proximate, which admits of an INTERVAL of time between the grave offense done by the offended party and the commission of the crime by the accused.

PARAGRAPH 6: PASSION OR OBFUSCATION REQUISITES: 1. The accused acted upon an impulse. 2. The impulse must be so powerful that it naturally produced passion or obfuscation in him.  REASON: When there are causes naturally producing in a person powerful excitement, he loses his reason and self-control, thereby diminishing the exercise of his will power. EXCEPTIONS: But even when there is actually passion or obfuscation on the part of the offender, there is no mitigating circumstance if: (a) The act is committed in a spirit of lawlessness; or (b) The act is committed in a spirit of revenge.

PARAGRAPH 7: SURRENDER AND CONFESSION OF GUILT TWO MITIGATING CIRCUMSTANCES ARE PROVIDED IN THIS PARAGRAPH: 1. Voluntary surrender to a person in authority or his agents. 2. Voluntary confession of guilt before the court, prior to the presentation of evidence for the prosecution.

VINDICATION 1.

2.

The grave offense may be committed also against the offender’s relatives mentioned by law. The offended party must have done a grave offense to the offender or his relatives mentioned by law.

REQUISITES OF VOLUNTARY SURRENDER: (Code: -ASV) 1. That the offender had not been actually arrested 2. That the offender surrendered himself to a person in authority or to the latter’s agent 3. That the surrender was voluntary. Meaning, for voluntary surrender to be appreciated, the same must be spontaneous in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities.

9 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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REQUISITES OF VOLUNTARY PLEA OF GUILTY: (CODE: SCP) 1. That the offender spontaneously confessed his guilt; 2. That the confession of guilt was made in open court, that is, before the competent court that is to try the case; and 3. That the confession of guilt was made prior to the presentation of evidence for the prosecution. Meaning, plea of guilty in the RTC in a case appealed from the Municipal Court is not mitigating, because the plea of guilty must be made at the first opportunity (in this case, the Municipal Court).

PARAGRAPH 8: PHYSICAL DEFECT OF THE OFFENDER  DEFINITION: Physical defect referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his means to act, to defend himself, or to communicate with his fellow human beings, is limited.

PARAGRAPH 9: ILLNESS OF THE OFFENDER REQUISITES: 1. That the illness of the offender diminishes the exercise of his will power. 2. That such illness should not deprive the offender of consciousness of his acts.

PARAGRAPH 10: SIMILAR AND ANALOGOUS CIRCUMSTANCES  This paragraph authorizes the court to consider in favor of the accused ―any other circumstance of a similar nature and analogous to those mentioned‖ in paragraphs 1 to 9 of Article 13.

ART. 14 AGGRAVATING CIRCUMSTANCES DEFINITION: 1. Aggravating circumstances are those which, if attendant in the commission of the crime, serve to increase the penalty without, however, exceeding the maximum of the penalty provided by law for the offense. BASIS: They are based on the greater perversity of the offender manifested in the commission of the felony, as shown by (1) the motivating power itself, (2) the place of commission, (3) the means and ways employed, (4) the time, or (5) the personal circumstances of the offender, or of the offended party.

FOUR KINDS OF AGGRAVATING

CIRCUMSTANCES 1. GENERIC– those that can generally apply to all crimes  USUALLY: dwelling; nighttime; recidivism  ENUMERATED: (1) Advantage taken of public position (2) Contempt or insult to public authorities (3) Commission in the dwelling of the offended party (4) Abuse of confidence; or obvious ungratefulness (5) Places of commission (6) Nighttime; uninhabited place; or band (7) Recidivism (8) Reiteracion (9) Craft, fraud, or disguise (10) Unlawful entry (11) By breaking wall, etc. (12) Aid of a minor (under 15 years) 2. SPECIFIC-- those that apply only to particular crimes.  USUALLY: ignominy in crimes against chastity; or cruelty and treachery in crimes against persons  ENUMERATED: (1) disregard of rank, age, or sex of offended party (2) superior strength; or means to weaken the defense (3) treachery (4) ignominy (5) cruelty 3. QUALIFYING– those that change the nature of the crime.  EXAMPLES: Alevosia (treachery), or evident premeditation qualifies the killing of a person to murder 4. INHERENT– those that must, of necessity, accompany the commission of the crime.  EXAMPLE: Evident premeditation is inherent in robbery, theft, estafa, adultery, or concubinage

DISTINCTIONS (CODE: N-OA) QUALIFYING AGGRAVATING CIRCUMSTANCE 1.

It does not only give the crime its proper and exclusive name, but also places the author thereof in such a situation as to deserve no

GENERIC AGGRAVATING CIRCUMSTANCE 1. Its effect is to increase the penalty, which should be imposed upon the accused without exceeding the limit prescribed by law.

10 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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2.

3.

other penalty than that specially prescribed by law for said crime. It cannot be offset by a an ordinary mitigating circumstance. It must be alleged in the information, otherwise it is a generic aggravating circumstance only.

It may be compensated by a mitigating circumstance. 4. Must also be alleged in the information. (2000 Criminal Proc) 2.

MODIFICATIONS IN THE APPLICATION OF SOME AGGRAVATING CIRCUMSTANCES (Acs) (CODE: No Personal Knowledge) 1. ACs WHICH DO NOT HAVE THE EFFECT OF INCREASING THE PENALTY. Hence, (a) those which in themselves, constitute a crime specially punishable by law, and (b) those which are included by the law in defining a crime and prescribing the penalty therefor, shall NOT be taken into account for the purpose of increasing the penalty (Art. 62, par. 1). 2. ACs WHICH ARE PERSONAL TO THE OFFENDERS. Hence, those which arise: a) from the moral attributes of the offender, or b) from his private relations with the offended party, or c) from any other personal cause, shall only serve to aggravate the liability of the principals, accomplices, and accessories as to whom such circumstances are ATTENDANT (Art. 62, par. 3). 3. ACs WHICH DEPEND FOR THEIR APPLICATION UPON THE KNOWLEDGE OF THE OFFENDERS. Hence, those which consist 1) in the material execution of the act, or 2) in the means employed to accomplish it, shall serve to aggravate the liability of those persons only who had KNOWLEDGE of them at the time of the execution of the act or their cooperation therein (Art. 62, par. 4).

PARAGRAPH 1: ADVANTAGE TAKEN OF PUBLIC POSITION (cannot be offset by any mitigating circumstance) 1. ESSENCE: The public officer must use the influence, prestige, or ascendancy, which his office gives him, as the means by which he realizes his purpose. The essence of the matter is presented in the inquiry, ―Did the accused abuse his office in order to commit the crime?‖ 2. NOT APPLIED: The circumstance, taking advantage of public position cannot be taken into consideration in offenses where taking

advantage of official position is made by law an integral element of the crime, such as in MALVERSATION under Art. 217, or in FALSIFICATION OF DOCUMENT COMMITTED BY PUBLIC OFFICERS UNDER ART. 171. Also, this circumstance is inherent in the case of ACCESSORIES UNDER ART. 19, PAR. 3, and in CRIMES COMMITTED BY PUBLIC OFFICERS (FOUND IN ARTS. 204-245).

PARAGRAPH 2: CONTEMPT OR INSULT TO PUBLIC AUTHORITIES REQUISITES: 1. That the public authority is engaged in the exercise of his functions. 2. That he who is thus engaged in the exercise of said functions is NOT the person against whom the crime is committed. 3. The offender knows him to be a public authority. 4. His presence has not prevented the offender from committing the criminal act.  If the crime is committed against a public authority while he is in the performance of his official duty, the offender commits direct assault (Art. 148).  Knowledge that a public authority is present is essential. DEFINITION: A Public Authority, sometimes also called a ―person in authority‖, is a public officer who is directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws.  Under the decided cases, a municipal mayor, a barangay captain, or a barrio captain is a person in authority or a public authority. Even a school teacher is now considered a person in authority under CA 578. So is a municipal councilor, a municipal health officer, a nurse, or a BIR agent. However, additional persons in authority under Art. 152 is only for purposes of direct assault and resistance.  The chief of police should therefore be considered a public authority or a person in authority, for he is vested with jurisdiction or authority to maintain peace and order and is specifically duty bound to prosecute and to apprehend violators of the laws and municipal ordinances, more than the aforementioned officials who cannot prosecute, and who are not even enjoined to arrest malefactors, although they are specifically mentioned as ―persons in authority‖ by the decided cases and by Art. 152 of the RPC as amended.

11 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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PARAGRAPH 3: DISREGARD OF RANK, AGE, OR SEX OF OFFENDED PARTY; OR COMMISSION IN THE DWELLING OF THE OFFENDED PARTY  If all the four circumstances enumerated in this paragraph are present, they have the weight of only one aggravating circumstance only.

A. That the act be committed with insult or in disregard of the respect due the offended party on account of the – DEFINITIONS: a. rank of the offended party. There must be a difference in the social condition of the offender and the offended party. b. age of the offended party. Applies to cases where the victim is of tender age as well as of old age. c. sex of the offended party. This refers to the female sex, not to the male sex.  This circumstance (rank, age, or sex) is applicable only in crimes against persons or honor. DISREGARD OF RANK, AGE, OR SEX IS NOT AGGRAVATING IN THE FOLLOWING CASES: a. When the offender acted with passion and obfuscation. b. When there exists a relationship between the offended party and the offender. c. When the condition of being a woman is indispensable in the commission of the crime. Thus, in (1) parricide, (2) abduction, or (3) seduction, sex is not aggravating.  Is disregard of sex absorbed in treachery? There were 2 different rulings. 1. The earlier one says, disregard of sex is absorbed in treachery. 2. The later one says: the aggravating circumstance of disregard of sex and age are NOT absorbed in treachery because treachery refers to the manner of the commission of the crime, while disregard for sex and age pertains to the relationship to the victim (P v. Lapaz; March 31, 1989)

B. That the crime be committed in the dwelling of the offended party. 1. REASON for aggravating the commission of the crime in one’s dwelling? a. The abuse of confidence which the offended party reposed in the offender by opening the door to him; or b. The violation of the sanctity of the home by trespassing therein with violence or against the will of the owner. 2. DEFINITIONS

 Dwelling must be a building or structure, exclusively used for rest and comfort. It includes dependencies, the foot of the staircase and enclosure under the house.  There must be NO provocation, in order to consider this AC. By PROVOCATION is meant, one which is: 1. Given by the owner of the dwelling, 2. Sufficient, and 3. Immediate to the commission of the crime.  For this circumstance to be considered, it is NOT necessary that the accused should have actually entered the dwelling of the victim to commit the offense. It is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault from without. DWELLING IS NOT AGGRAVATING IN THE FOLLOWING CASES: a. When both offender and offended party are occupants of the same house, even if the offended party is a servant in the house.  BUT in adultery, it is still aggravating even if it was also the dwelling of the unfaithful wife, because of a very grave offense against the head of the house. BUT the rule is again different if both the unfaithful wife and the paramour were living, and had the right to live, in the same house of the offended spouse. b. In robbery by use of force upon things only, because dwelling is inherent. c. In trespass to dwelling because of same reason. d. When the dwelling does not actually belong to the offended party. HOWEVER, some decided cases considered ―temporary dwelling‖ as when the offended party was (a) raped in her boarding house; (b) raped in their paternal home where they were sleeping as guests, etc. because the RPC speaks of dwelling and not domicile.

PARAGRAPH 4: ABUSE OF CONFIDENCE; OR OBVIOUS UNGRATEFULNESS REQUISITES: 1. That the offended party had trusted the offender. 2. That the offender abused such trust by committing a crime against the offended party. 3. That the abuse of confidence facilitated the commission of the crime; OR

12 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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4. That the act be committed with obvious ungratefulness.  The confidence between the offender and the offended party must be immediate and personal.

PARAGRAPH 5: PLACES OF COMMISSION COMPARISON OF PAR. 2 AND PAR. 5: PAR. 2: CONTEMPT OR INSULT TO PUBLIC AUTHORITIES

PAR. 5: PLACE WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF THEIR DUTIES

1. Public authorities are in the performance of their duties. 2. The public authorities are performing their duties outside of their office.

1. Public authorities are in the performance of their duties. 2. The public authorities, who are in the performance of their duties, must be in their office. 3. The public authority may be the offended party.

3. The public authority should not be the offended party.

 The place of the commission of the felony (par. 5), if it is Malacañang palace or a church, is aggravating, regardless of whether State or official or religious functions are being held. BUT there is a decided case to the effect that the offender must have the intention to commit a crime when he entered the place; i.e. ―she must have murder in her heart‖ (P v. Jaurigue).  The Chief executive need not be in Malacanang Palace. His presence alone in any place where the crime is committed is enough to constitute the aggravating circumstance, even if he is not engaged in the discharge of his duties in the place where the crime is committed.  For the other public authorities, they must be actually engaged in the performance of duty.

PARAGRAPH 6: NIGHTTIME; UNINHABITED PLACE; OR BAND NIGHTTIME, UNINHABITED PLACE OR BAND IS AGGRAVATING – 1. When it facilitated the commission of the crime; or 2. When it was especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or 3. When the offender took advantage thereof for the purpose of impunity.

DEFINITIONS: 1. ―For the purpose of impunity‖ means to prevent his (accused’s) being recognized, or to secure himself against detection and punishment. 2. ―Nighttime‖ is the period of darkness beginning at the end of dusk and ending at dawn. Nighttime by and of itself is not necessarily aggravating. TESTS: (1) the commission of the crime must begin and be accomplished in the nighttime; (2) the offense must be actually be committed in the darkness of the night. 3. ―An uninhabited place‖ is one where there are no houses at all, a place at a considerable distance from town, or where the houses are scattered at a great distance from each other. TEST (OF UNINHABITED PLACE): But whether or not the crime is attended by this aggravating circumstance should be determined not by the distance of the nearest house from the scene of the crime, but whether or not in the place of the commission of the offense there was a reasonable possibility of the victim receiving some help. TEST (OF WHETHER OR NOT AGGRAVATING): 4. ―BAND‖ --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.  ―Acted together‖-- means direct part in the execution of the act constituting the crime. Hence, if one of the four armed men is a principal by inducement only, they do not form a band, because a principal by inducement connotes that he has no direct participation in the perpetration thereof.  BAND IS AGGRAVATING IN: (a) crimes against property (except in brigandage, because it is inherent); (b) crimes against persons (note rape, which is already a crime against persons), (c) illegal detention, and; (d) treason.

PARAGRAPH 7: ON OCCASION OF CALAMITY OR MISFORTUNE  THE REASON for the existence of this circumstance is found in the debased form of criminality met in one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their great suffering by taking advantage of their misfortune to despoil them.

PARAGRAPH 8: AID OF ARMED MEN,

13 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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ETC. REQUISITES: 1. That armed men or persons took part in the commission of the crime, directly or indirectly. 2. That the accused availed himself of their aid or relied upon them when the crime was committed. Exceptions: 1. This aggravating circumstance shall not be considered when both the attacking party and the party attacked were equally armed. 2. This aggravating circumstance is not present when the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose.

DISTINCTIONS: BETWEEN PAR 8 (“WITH AID OF ARMED MEN”) AND PAR. 6 (“BY A BAND”)  By a band requires that more than three armed malefactors shall have acted together in the commission of an offense. Aid of armed men is present even if one of the offenders merely relied on their aid, for actual aid is not necessary.

PARAGRAPH 9: RECIDIVIST

PARAGRAPH 10: REITERACION OR HABITUALITY REQUISITES: CODE: (TriPLE CONVICTED) 1. That the accused is on trial for an offense; 2. That he previously served sentence for another offense to which the law attaches an equal or greater penalty, or for two or more crimes to which it attaches lighter penalty than that for the new offense. 3. That he is convicted of the new offense.

DISTINCTIONS RECIDIVISM REITERACION 1. It is enough that a final judgment has been rendered in the first offense. 2. Recidivism requires that the offenses be included in the same title of the Code.

1. It is necessary that the offender shall have served out his sentence for the first offense 2. The previous and subsequent offenses must NOT be embraced in the same title of the Code 3. It is NOT always an aggravating circumstance

DEFINITION: Recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code.

3. It is always to be taken into consideration in fixing the penalty to be imposed upon the accused.

REQUISITES: CODE: (TriPS CONVICTED) 1. That the offender is on trial for an offense; 2. That he was previously convicted by final judgment of another crime; 3. That both the first and the second offenses are embraced in the same title of the Code; 4. That the offender is convicted of the new offense.

1. Recidivism (Par. 9, Art. 14) 2. Reiteracion or habituality (Par. 10, Art. 14) 3. Multi-recidivism or habitual delinquency (Art. 62, Par. 5) 4. Quasi-Recidivism (Art. 160)

 There is no recidivism if the subsequent conviction is for an offense committed before the offense involved in the prior conviction.  When one offense is punishable by an ordinance or special law and the other by the Revised Penal Code, recidivism cannot be applied; the two offenses are not embraced in the same title of the Code.  Recidivism must be taken into account as an aggravating circumstance no matter how many years have intervened between the first and second felonies.

FOUR FORMS OF REPETITION

PARAGRAPH 11: PRICE, REWARD, OR PROMISE 1. When this aggravating circumstance is present, there must be two or more principals; the one who gives or offers the price or promise and the one who accepts it. 2. The evidence must show that one of the accused used money or other valuable consideration for the purpose of inducing another to perform the deed.

PARAGRAPH 12: BY MEANS OF INUNDATION, FIRE, ETC.  Any of the circumstances in paragraph 12 cannot be considered to increase the penalty or to change the nature of the

14 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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offense unless used by the offender as a means to accomplish a criminal purpose.

PARAGRAPH 13: EVIDENT PREMEDITATION ESSENCE: The essence of premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment.

 TEST: It is considered whenever there is a notorious inequality of forces between the victim and aggressor, assessing a superiority of strength notoriously advantageous for the aggressor, which is selected or taken advantage of by him in the commission of the crime. 2. Means to weaken the defense-- The offender employs means to materially weaken the resisting power of the offended party.

PARAGRAPH 16: TREACHERY REQUISITES: 1. The time when the offender determined to commit the crime; 2. An act manifestly indicating that the culprit has clung to his determination; and 3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will.  CONSPIRACY GENERALLY PRESUPPOSES PREMEDITATION, EXCEPTION: But when conspiracy is only implied, the evident premeditation may not be appreciated from the mere conspiracy.

PARAGRAPH 14: CRAFT, FRAUD, OR DISGUISE DEFINITIONS: 1. Craft involves the use of intellectual trickery or cunning on the part of the accused. 2. Fraud involves the use of insidious words and machination, used to induce the victim to act in a manner, which would enable the offender to carry out his design. 3. Disguise involves resort to any device in order to conceal identity.

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

PARAGRAPH 15: SUPERIOR STRENGHT; OR MEANS TO WEAKEN DEFENSE 1. Superior Strength-- To take advantage of superior strength means to use purposely, excessive force out of proportion to the means of defense available to the person attacked.  The aggravating circumstance of abuse of superior strength depends on the age, size, and strength of the parties.

MEANING OF TREACHERY: 1. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.  The characteristic and unmistakable manifestation of treachery is the deliberate, sudden and unexpected attack of the victim, without any warning, and without giving him an opportunity to defend himself, or repel the initial assault. 2. Treachery means that the offended party was not given opportunity to make a defense.  Killing a child is characterized by treachery, because the weakness of the victim due to his tender age results in the absence of any danger to the accused. SOME RULES ON TREACHERY: CODE: (P-ICTAN) 1. Applicable only to crimes against the persons 2. Means, methods, or forms need not insure accomplishment of crime. 3. The mode of attack must be consciously adopted. 4. Must be present at the proper time. SUMMARY OF THE RULES ON WHEN TREACHERY MUST BE PRESENT: a) When the aggression is continuous, treachery must be present in the beginning of the assault; b) When the assault was not continuous in that there was an interruption, it is sufficient that treachery was present at the moment the fatal blow was given. 5. Treachery absorbs abuse of superior strength, aid of armed men, by a band and means to weaken the defense. 6. Nighttime forms part, of the peculiar treacherous means and manner adopted to insure the execution of the crime.

15 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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(Note: there is need to establish the manner by which offender attacked the victim. There is no presumption of aggravating circumstance, more so if qualifying)

PARAGRAPH 17: IGNOMINY DEFINITIONS: 1. Ignominy—a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. 2. It must tend to make the effects of the crime more humiliating or to put the offended party to shame. WHERE APPLICABLE: This aggravating circumstance is applicable to (a) crimes against chastity, (b) less serious physical injuries, (c) light or grave coercion, (d) and murder.

PARAGRAPH 18: UNLAWFUL ENTRY  There is unlawful entry when an entrance is effected by a way not intended for the purpose. It must be a means to effect entrance and not for escape.

PARAGRAPH 19: BY BREAKING WALL, ETC.  To be considered as an aggravating circumstance, breaking the door must be utilized as a means to the commission of the crime.

PARAGRAPH 20: AID OF MINOR (UNDER 15 YEARS); OR BY MEANS OF MOTOR VEHICLES, ETC. TWO DIFFERENT CIRCUMSTANCES ARE GROUPED IN THIS PARAGRAPH. The first one tends to repress the frequent practice resorted to by professional criminals to avail themselves of minors taking advantage of their irresponsibility; while the second one is intended to counteract the great facilities found by modern criminals in said means to commit crime, and then flee and abscond once the same is committed.

PARAGRAPH 21: CRUELTY ESSENCE: THERE IS CRUELTY when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act. REQUISITES: 1. That the injury caused be deliberately increased by causing other wrong; 2. That the other wrong be unnecessary for the execution of the purpose of the offender.  For cruelty to be aggravating, it is essential

that the wrong done was intended to prolong the suffering of the victim, causing him unnecessary moral and physical pain.  Ignominy (par. 17) involves moral suffering, while cruelty (par. 21) refers to physical suffering.

ART. 15 ALTERNATIVE CIRCUMSTANCES DEFINITION: Alternative circumstances are those, which must be taken into consideration as aggravating or mitigating, according to the nature and effects of the crime and the other conditions attending its commission.

THE ALTERNATIVE CIRCUMSTANCES ARE: 1. Relationship 2. Intoxication 3. Degree of instruction and education of the offender 1. RELATIONSHIP-The alternative circumstance of relationship shall be taken into consideration when the offended party is the – CODE: (SADBA) 1. spouse 2. ascendant 3. descendant 4. legitimate, natural or adopted brother or sister, or relative by affinity in the same degree, of the offender.  The relationship of stepfather or stepmother and stepson or stepdaughter is included by analogy to that of ascendant and descendant. WHEN MITIGATING AND WHEN AGGRAVATING: The law is silent as to when mitigating and when aggravating. 1. MITIGATING: As a rule, relationship is mitigating in crimes against property, by analogy to Art. 332 regarding ―Persons exempt from criminal liability‖. OF COURSE in view of Art. 332, when the crime committed is: (a) theft, (b) estafa, or (c) malicious mischief, relationship is exempting, and not merely mitigating. 2. AGGRAVATING. It is aggravating in crimes against persons in cases where the offended is a relative of a higher degree than the offender, or when the offender and the offended party are relatives of the same level, such killing a brother-in-law, a halfbrother, or an adopted brother.

16 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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 In crimes against chastity, relationship is always aggravating, regardless of whether the offender is a relative of a higher or lower degree of the offended party.  However, relationship is neither mitigating nor aggravating, when relationship is an element of the offense. 2. INTOXICATION-By state of intoxication is meant that the offender’s mental faculties must be affected by drunkenness. WHEN MITIGATING AND WHEN AGGRAVATING: 1. Mitigating, if intoxication is (1) not habitual, or 2) not subsequent to the plan to commit a felony. (He is not already conscious of his doing) consider the effect 2. Aggravating if intoxication is 1) habitual, or 2) if it is intentional (subsequent to the plan to commit a felony). 3. DEGREE OF INSTRUCTION AND EDUCATION OF THE OFFENDER- Low degree of instruction and education or lack of it is generally mitigating. High degree of instruction and education is aggravating, when the offender availed himself of his learning in committing the crime.  Lack of instruction or low degree of it, is appreciated as mitigating circumstance in almost all crimes. EXCEPT in crimes, which are inherently wrong, of which every rational being is endowed to know and feel.

ART. 16. PERSONS WHO ARE CRIMINALLY LIABLE GRAVE AND LESS GRAVE FELONIES: 1. 2. 3.

Principals Accomplices Accessories

LIGHT FELONIES: 1. 2.

Principals Accomplices

 The treble division of persons criminally liable rests upon the very nature of their participation.  The classification of the offenders as principal, accomplice, or an accessory is true only under the RPC but not in the special laws because the penalties under the latter are never graduated

RULES RELATIVE TO LIGHT FELONIES 1. Punishable only when they have been consummated. EXCEPT when committed against persons or property, in which case they are also punishable even if they were only in the attempted or frustrated stage. 2. There are no accessories even if they are committed against persons or property.

TWO PARTIES IN ALL CRIMES 1. ACTIVE subject (the criminal) 3. PASSIVE subject (the injured party) As a rule, only natural persons can be the active subjects of a crime because the RPC requires that the culprit should have acted with personal malice or negligence. A juridical person cannot act with malice or negligence.

ART. 17. PRINCIPALS KINDS OF PRINCIPALS 1. PRINCIPAL BY DIRECT PARTICIPATION personally takes part in the execution of the act constituting the crime REQUISITES: 1. That they participated in the criminal resolution 2. That they carried out their plan and personally took part in its execution by acts which directly tended to the same end 2. PRINCIPAL BY INDUCTION - the principal by induction becomes liable only when the principal by direct participation committed the act induced. TWO WAYS OF BECOMING A PRINCIPAL BY INDUCTION: 1. directly forcing another to commit a crime, or 2. directly inducing another to commit a crime Two ways of directly forcing another to commit a crime: 1. by using irresistible force 2. by causing uncontrollable fear

Two ways of directly inducing another to commit a crime: 1. by giving price, or offering reward or promise 2. by using words of command REQUISITES (Principal by inducement, through giving price, etc): In order that a

17 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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person maybe convicted as a principal by inducement, the following requisites must be present--1. that the inducement be made directly with the intention of procuring the commission of the crime; and 2. that such inducement be the determining cause of the commission of the crime by the material executor REQUISITES (Principal by inducement, through words of command): In order that a person using words of command maybe held liable, the following requisites must be present--1. that the one uttering the words of command must have the intention of procuring the commission of the crime 2. that the one who made the command must have an ascendancy or influence over the person who acted 3. that the words used must be so direct, so efficacious, so powerful as to amount to physical or moral coercion 4. the words of command must be uttered prior to the commission of the crime 5. the material executor of the crime has no personal reason to commit the crime

DISTINCTIONS Principal by Inducement

Offender who made Proposal to Commit a Felony

1. There is an inducement to commit a crime 2. Becomes liable only when the crime is committed by the principal by direct participation

1. There is an inducement to commit a crime 2. The mere proposal to commit a felony is punishable in treason or rebellion; the person to whom the proposal is made should not commit the crime, otherwise, the proponent becomes a principal by inducement 3. The proposal must involve only

3. Inducement involves any

crime.

treason or rebellion

EFFECT OF ACQUITTAL OF ONE OF THE CO-CONSPIRATORS TO THE OTHER CO-CONSPIRATORS: As a rule, the acquittal of one of the coconspirators redounds to the benefit of the other co-conspirators EXCEPT when the acquittal is due to circumstances personal to the accused, like exempting circumstances 3. PRINCIPALS BY COOPERATION

INDISPENSABLE

REQUISITES: 1. participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; and 2. cooperation in the commission of the offense by performing another act, without which it would not have been accomplished

COLLECTIVE CRIMINAL RESPONSIBILITY There is collective criminal responsibility when the offenders are criminally liable in the same manner and to the same extent. The penalty to be imposed must be the same for all.

INDIVIDUAL CRIMINAL RESPONSIBILITY In the absence of previous conspiracy, unity of criminal purpose, and intention, immediately before the commission of the crime, or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the act committed by him

ART. I8. ACCOMPLICES REQUISITES: CODE:

(COMMUNITY COOPERATES previous supply RELATION) 1. That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; 2. That he cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and 3. That there be a relation between the acts done by the principal and those attributed to the person charged as accomplice.

18 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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 The complicity, which is penalized, requires a certain degree of cooperation whether moral, through advice, encouragement, or agreement, or material, through external acts.  The responsibility of the accomplice is to be determined by acts of aid and assistance, either prior to or simultaneous with the commission of the crime, rendered knowingly for the principal therein, and not by the mere fact of having been present at its execution.

ART. 19. ACCESSORIES 1. An accessory must have knowledge of the commission of the crime and having knowledge he took part subsequent to its commission 2. To convict an accessory, the crime committed by the principal must be proved beyond reasonable doubt

SPECIFIC ACTS OF ACCESSORIES: (CODE: PROFIT, CONCEAL, HARBOR) 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 to prevent its discovery 3. By harboring, concealing or assisting in the escape of the principal of the crime 2 CLASSES OF ACCESSORIES ARE CONTEMPLATED IN PAR. 3 OF ART. 19 (i.e., HARBORING, etc): (a) Public officers who harbor, conceal or assist in the escape of the principal of any crime (not light felony) with abuse of his functions (b) Private persons who harbor, conceal or assist in the escape of the author of the crime – guilty of treason, parricide, murder, or an attempt against the life of the President, or who is known to be habitually guilty of some other crime  The accomplice and the accessory may be tried and convicted even before the principal is found guilty.  The liability of the accused will depend on the quantum of evidence adduced by the prosecution against the particular accused.

ACCESSORY DISTINGUISHED FROM PRINCIPAL AND FROM ACCOMPLICE 1. The accessory does not take part or cooperate in, or induce, the commission of

the crime. 2. The accessory does not cooperate in the commission of the offense by acts prior thereto or simultaneous therewith. 3. The participation of the accessory in all cases always takes place after the commission of the crime

ART. 20. ACCESSORIES WHO ARE EXEMPT FROM CRIMINAL LIABILITY SITUATIONS WHERE ACCESSORIES ARE NOT CRIMINALLY LIABLE: 1. When the felony committed is a light felony; and 2. When the accessory is related to the principal as spouse, or as an ascendant, or descendant or as a brother or sister, whether legitimate, natural, or adopted, or where the accessory is a relative by affinity within the same degree, unless the accessory himself profited from the effects or proceeds of the crime or assisted the offender to profit thereon.

PENALTIES DEFINITION: Penalty is the suffering that is inflicted by the State, for the transgression of a law; in its general sense, it signifies pain. Different juridical conditions of penalty: 1. productive of suffering, without however affecting the integrity of the human personality 2. commensurate with the offense – different crimes must be punished with different penalties 3. personal – no one should be punished for the crime of another 4. legal – it is the consequence of a judgment according to law 5. certain – no one may escape its effects 6. equal for all 7. correctional Theories justifying penalty: 1. Self-defense – the State has a right to punish the criminal as a measure of selfdefense, so as to protect society from the threat and wrong inflicted by the criminal 2. Reformation – the object of punishment in criminal cases is to correct and reform the offender 3. Exemplarity – the criminal is punished to serve as an example to deter others from committing crimes 4. Justice – that crime must be punished by the State as an act of retributive justice, a vindication of absolute right and moral law

19 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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violated by the criminal

THREE-FOLD PURPOSE OF THE PENALTY UNDER THE RPC: 1. Retribution or expiation – the penalty is commensurate with the gravity of the offense 2. Correction or reformation- as shown by the rules which regulate the execution of the penalties consisting in deprivation of liberty 3. Social defense – shown by its inflexible severity to recidivists and habitual delinquents

ART. 22. RETROACTIVE EFFECT OF PENAL LAWS GENERAL RULE IS TO GIVE CRIMINAL LAWS PROSPECTIVE EFFECT. EXCEPTION – when favorable to the accused who is not a habitual criminal AN EX POST FACTO LAW IS ANY ONE WHICH: CODE: (CAPE Civil Protection) 1. makes criminal an act done before the passage of the law, and which was innocent when done, and punishes such an act; 2. aggravates a crime, or makes it greater than it was, when committed; 3. changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; 4. alters the legal rules of evidence, and authorizes conviction upon less or different testimony that the law required at the time of the commission of the offense; 5. assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and 6. deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty

injury so the offended party cannot pardon the offender so as to relieve him of the penalty. 2. Personal injury, caused to the victim of the crime, who suffered damage either to his person, to his property, to his honor, or to her chastity. This is repaired through indemnity, which is civil in nature. The offended party may waive it and the state has no reason to insist on its payment.

ART. 24. MEASURES OF PREVENTION OR SAFETY WHICH ARE NOT CONSIDERED PENALTIES THE FOLLOWING ARE NOT CONSIDERED 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 Art. 80 (now PD603) for the purposes specified therein; 3. Suspension from the employment or 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; and 5. Deprivation of rights and reparations which the civil laws may establish in penal form.

ART. 25. PENALTIES WHICH MAY BE IMPOSED CLASSIFICATION OF PENALTIES: 1. Principal penalties – those expressly imposed by the court in the judgment of conviction 2. Accessory penalties – those that are deemed included in the imposition of the principal penalties

ART. 23. EFFECT OF PARDON BY THE OFFENDED PARTY As a rule, a pardon by the offended party does not extinguish criminal action, except as provided under Art. 344 of RPC. Two classes of injuries caused by an offense: 1. Social injury, produced by the disturbance and alarm, which are the outcome of the offense. This is repaired through the imposition of the corresponding penalty. The State has an interest in this class of

This article classifies penalties according to their gravity: 1. Capital 2. Afflictive 3. Correctional 4. Light This corresponds to the classification of felonies according to their gravity under Art. 9:

20 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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1. Grave 2. Less grave 3. Light

ART. 29. PERIOD OF PREVENTIVE IMPRISONMENT DEDUCTED FROM TERM OF IMPRISONMENT OFFENDERS NOT ENTITLED TO THE FULL TIME OR FOUR-FIFTHS OF THE TIME OF PREVENTIVE IMPRISONMENT: 1. Recidivists or those convicted previously twice or more times of any crime.  A habitual delinquent is not entitled to the full time or 4/5 of the time of preventive imprisonment, because a habitual delinquent is necessarily a recidivist or that at least he has been ―convicted previously twice or more times of any crime.‖ 2. Those who upon being summoned for the execution of their sentence, failed to surrender voluntarily  Note that paragraph No. 2 does not refer to failure to surrender voluntarily after commission of the crime. It says: ―when upon being summoned for the execution of their sentence‖.

ART. 36. PARDON; ITS EFFECTS EFFECTS OF PARDON BY THE PRESIDENT 1. A pardon shall not restore the right to hold public office or the right of suffrage. EXCEPT; when any or both such rights is or are expressly restored by the terms of the pardon. 2. It shall not exempt the culprit from the payment of the civil indemnity.

LIMITATIONS UPON THE EXERCISE OF THE PARDONING POWER 1. That the power can be exercised only after conviction 2. That such power does not extend to cases of impeachment

DISTINCTIONS CODE: (EPAA) Pardon by the Pardon by the Chief Executive Offended Party 1. Extinguishes the criminal liability of the offender

1. Does NOT extinguish the criminal liability

2. Cannot include civil liability which the offender must pay 3. Granted only AFTER CONVICTION, and may be extended to any of the offenders

of the offender 2. Offended party can waive the civil liability which the offender must pay 3. Pardon should be given BEFORE THE INSTITUTION of criminal prosecution, and must extend to both offenders

ART. 37. COSTS – WHAT ARE INCLUDED The following are included in costs: 1. Fees, and 2. Indemnities, in the course proceedings

of

judicial

ART. 38. PECUNIARY LIABILITIES – ORDER OF PAYMENT The pecuniary liabilities of persons criminally liable are the following: 1. The reparation of the damage caused. 2. Indemnification of the consequential damages. 3. Fine. 4. Costs of proceedings. WHEN IS ARTICLE 38 APPLICABLE? In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the order of payment is provided in this article.

ART. 39. SUBSIDIARY PENALTY 1. A subsidiary penalty is a subsidiary personal liability to be suffered by the convict who has no property with which to meet the fine. 2. There is no subsidiary penalty for nonpayment of damages to the offended party.

ART. 45. CONFISCATION AND FORFEITURE OF THE PROCEEDS OR INSTRUMENTS OF THE CRIME OUTLINE OF THE PROVISION OF THIS ARTICLE: 1. Every penalty imposed carries with it the forfeiture of the proceeds of the crime and

21 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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the instruments or tools used in the commission of the crime 2. The proceeds and instruments or tools of the crime are confiscated and forfeited in favor of the Government 3. Property of a third person who is not liable for the offense, is not subject to confiscation and forfeiture 4. Property not subject of lawful commerce (whether it belongs to the accused or to a third person) shall be destroyed

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

APPLICATION OF PENALTIES 14.

ART. 46. PENALTY TO BE IMPOSED UPON PRINCIPALS IN GENERAL 1. General rule: The penalty prescribed by law in general terms shall be imposed upon the principals for a consummated felony. 2. Except: When the penalty to be imposed upon the principal in frustrated or attempted felony is fixed by law.

GRADUATION OF PENALTIES: 1. BY DEGREES– refers to (1) the stages of execution (consummated, frustrated, or attempted); and (2) the degree of the criminal participation of the offender (whether as principal, accomplice, or accessory). 2. BY PERIODS– refers to the proper period of the penalty which should be imposed when aggravating or mitigating circumstances attend the commission of the crime

ART. 47. IN WHAT CASES THE DEATH PENALT Y SHALL NOT BE IMPOSED DEATH PENALTY IS NOT IMPOSED IN THE FOLLOWING CASES 1. UNDER AGE. When the offender is below 18 years of age at the time of the commission of the crime. 2. OVER AGE. When the guilty person is more than seventy (70) years of age 3. NO COURT MAJORITY. When upon appeal or automatic review of the case by the Supreme Court, the vote of eight members is not obtained for the imposition of the death penalty.

CRIMES PUNISHABLE BY DEATH UNDER RA 7659 CODE: (MURDER CARNAPPING TRIPP QQD PARK) 1. Murder 2. Carnapping

Treason Rape Infanticide Plunder Parricide Qualified Piracy Qualified Bribery Violation of Certain provisions of the Dangerous Drugs Act Piracy in general and Mutiny on the High Seas or in the Philippines Waters Destructive Arson Robbery with Violation Against or Intimidation of Persons Kidnapping and Serious Illegal Detention

ART. 48. COMPLEX CRIMES CONCEPT: 1. In complex crime, although two or more crimes are actually committed, they constitute only one crime in the eyes of the law as well as in the conscience of the offender. 2. The offender have only one criminal intent, hence there is only one penalty imposed for the commission of a complex crime

TWO KINDS OF COMPLEX CRIMES: 1. COMPOUND CRIME— a single act constitutes two or more grave or less grave felonies. REQUISITES: 1. That only a single act is performed by the offender; 2. That the single act produces: (1) two or more grave felonies, or (2) one or more grave and one or more less grave felonies, or (3) two or more less grave felonies. 2. COMPLEX CRIME PROPER— an offense is a necessary means for committing the other. REQUISITES: 1. That at least two offenses are committed; 2. That one or some of the offenses must be necessary to commit the other; 3. That both or all of the offenses must be punished under the same statute.

NO COMPLEX CRIME IN THE FOLLOWING CASES CODE: (CCIS) 1. In case of a continued crime 2. When one offense is committed to conceal

22 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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the other. 3. When the other crime is an indispensable part or an element of the other offense. 4. Where one of the offenses is penalized by a special law

PLURALITY OF CRIMES DEFINITION: Plurality of Crimes-- consists in the successive execution, by the same individual, of different criminal acts, upon any of which no conviction has yet been declared KINDS: 1. FORMAL OR IDEAL PLURALITY– only ONE CRIMINAL LIABILITY. THREE GROUPS UNDER THE FORMAL TYPE: a. When the offender commits any of the complex crimes in Art. 48. b. When the law specifically fixes a single penalty for two or more offenses committed. c. When the offender commits continued crimes 2. REAL OR MATERIAL PLURALITY– DIFFERENT CRIMES in law, as well as in the conscience of the offender; the offender shall be PUNISHED FOR EACH and every offense that he committed.  In recidivism, there must be conviction by final judgment of the first or prior offense; in plurality of crimes, there is no conviction of any of the crimes committed

CONTINUED CRIME DEFINITION: CONTINUED CRIME– is a single crime, consisting of a series of acts, but all arising from ONE CRIMINAL RESOLUTION; length of time in the commission is immaterial.

COMPARISON Real or Material Continued Crime Plurality 1. There is a series of acts performed by the offender 2. Each act performed by the offender constitutes a separate crime, each act is generated by a criminal impulse

1. There is a series of acts performed by the offender 2. The different acts constitute only one crime, all of the acts performed arise from one criminal resolution

ART. 59. PENALTY TO BE IMPOSED IN CASE OF FAILURE TO COMMIT THE CRIME BECAUSE THE MEANS EMPLOYED OR THE AIMS SOUGHT ARE IMPOSSIBLE BASIS FOR THE IMPOSITION OF PROPER PENALTY: 1. Social danger; and 2. Degree of criminality shown by the offender

ART. 61. RULES OF GRADUATING PENALTIES According to Arts. 50-57, the penalty prescribed by law for the felony shall be lowered by one or two degrees, as follows: 1. For the principal in frustrated felony – one degree lower; 2. For the principal in attempted felony – two degrees lower; 3. For the accomplice in consummated felony – one degree lower; 4. For the accessory in consummated felony – two degrees lower;

DIAGRAM OF THE APPLICATION OF ARTS. 50 TO 57: Prin Accom Access

CONSU

FRUST

ATTEM

0 1 2

1 2 3

2 3 4

In this diagram, ―O‖ represents the penalty prescribed by law in defining a crime, which is to be imposed on the principal in a consummated offense, in accordance with the provisions of Art. 64. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law.

ART. 62. EFFECTS OF THE ATTENDANCE OF MITIGATING OR AGGRAVATING CIRCUMSTANCES AND OF HABITUAL DELINQUENCY EFFECT OF THE ATTENDANCE OF AGGRAVATING OR MITIGATING CIRCUMSTANCES OR OF HABITUAL

23 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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DELINQUENCY: 1. Aggravating circumstances (generic and specific) have the effect of increasing the penalty, without however exceeding the maximum period provided by law 2. Mitigating circumstances have the effect of diminishing the penalty 3. Habitual delinquency has the effect, not only of increasing the penalty because of recidivism which is generally implied in habitual delinquency, but also of imposing an additional penalty REQUISITES OF HABITUAL DELINQUENCY: CODE: (Convicted-CommittedConvicted-CommittedConvicted)

1. that the offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification (CODE: FRETSL) 2. that after conviction or after serving his sentence, he again committed, and, within 10 years from his release or first conviction, he was again convicted of any of the said crimes for the second time 3. that after his conviction of, or after serving sentence for the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener.

DISTINCTIONS Habitual Delinquency 1.

As to the CRIMES committed

1.

The crimes are specified

Recidivism 1.

It is sufficient that the accused on the date of his trial, shall have been previously convicted by final judgment of another crime embraced in the same title No period of time between the former conviction and the last conviction

2.

As to the PERIOD of time the crimes are committed

2.

The offender is found guilty within ten years from his last release or last conviction

2.

3.

As to the NUMBER of crimes committed

3.

The accused must be found guilty the third time or oftener of the crimes specified

3.

The second offense for an offense found in the same title

4.

As to their EFFECTS

4.

An additional penalty is also imposed

4.

If not offset by a mitigating circumstance, serves to increase the penalty only to the maximum

ART. 64. RULES FOR THE APPLICATION OF PENALTIES, WHICH CONTAIN THREE PERIODS CASES IN WHICH MITIGATING AND AGGRAVATING CIRCUMSTANCES ARE NOT CONSIDERED IN THE IMPOSITION OF PENALTY: 1. When the penalty is single and indivisible 2. In felonies through negligence 3. The penalty to be imposed upon a Moro or other non-Christian inhabitants 4. When the penalty is only a fine imposed by an ordinance 5. When the penalties are prescribed by special laws

ART. 66. IMPOSITION OF FINES OUTLINE OF THE PROVISION: 1. The court can fix any amount of the fine within the limits established by law. 2. The court must consider: (1) the mitigating and aggravating circumstances; and (2) more particularly, the wealth or means of the culprit. 3. The court may also consider: (1) the gravity of the crime committed; (2) the heinousness of its perpetration; and (3) the magnitude of its effects on the offender’s victims.

ART. 68. PENALTY TO BE IMPOSED UPON A PERSON UNDER EIGHTEEN YEARS OF AGE APPLICATION OF ART. 68: 1. This article is not immediately applicable to a minor under 18 years of age, because such minor, if found guilty of the offense charged, is not sentenced to any penalty. The sentence is suspended and he is ordered committed to the reformatory institution, IF, his application therefor is approved by the court. 2. This article applies to such minor if his application for suspension of sentence is DISAPPROVED OR if while in the reformatory institution he becomes INCORRIGIBLE, in which case he shall be returned to the court for the imposition of the proper penalty.

ART. 70. SUCCESSIVE SERVICE OF SENTENCE THE THREE-FOLD RULE 1. THE

MAXIMUM

DURATION

OF

THE

24 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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CONVICT’S SENTENCE shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him. 2. But in no case to exceed 40 years. 3. This rule shall apply only when the convict is to serve 4 or more sentences successively. 4. Subsidiary penalty forms part of the penalty.

DIFFERENT SYSTEMS OF PENALTY, RELATIVE TO THE EXECUTION OF TWO OR MORE PENALTIES IMPOSED ON ONE AND THE SAME ACCUSED 1. material accumulation system No limitation whatever, and accordingly, all the penalties for all the violations were imposed even if they reached beyond the natural span of human life. 2. juridical accumulation system Limited to not more than three-fold the length of time corresponding to the most severe and in no case to exceed 40 years. 3. absorption system The lesser penalties are absorbed by the graver penalties.

ART. 72. PREFERENCE IN THE PAYMENT OF CIVIL LIABILITIES Civil liability is satisfied, by following the chronological order of the dates of the final judgments.

ART. 77. WHEN THE PENALTY IS A COMPLEX ONE COMPOSED OF THREE DISTINCT PENALTIES DEFINITION: A complex penalty is a penalty prescribed by law composed of three distinct penalties, each forming a period: the lightest of them shall be the minimum, the next the medium, and the most severe the maximum period.

INDETERMINATE SENTENCE LAW Act No. 4103 as amended by Act No. 4225 CONCEPT: INDETERMINATE SENTENCE– is a sentence with a minimum term and a maximum term which, the court is mandated to impose for the benefit of a guilty person who is not disqualified therefor, when the maximum imprisonment exceeds one (1) year. It applies to both violations of Revised Penal Code and special

penal laws.

A. SENTENCE IN THE I.S.LAW In imposing a prison sentence for an offense punished by the Revised Penal Code or special penal laws, the court shall sentence the accused to an indeterminate sentence, which has a maximum and a minimum term based on the penalty actually imposed.  ISLAW Application is mandatory, where imprisonment would exceed one year. I.

IF THE PENALTY IS IMPOSED BY THE RPC: a. The Maximum Term— is that which could be properly imposed under the RPC, considering the aggravating and mitigating circumstances, b. The Minimum Term— is within the range of the penalty one degree lower than that prescribed by the RPC, without considering the circumstances,  BUT when there is a privileged mitigating circumstance, so that the penalty has to be lowered by one degree, the STARTING POINT for determining the minimum term of the indeterminate penalty is the penalty next lower than that prescribed by the Code for the offense.

II. IF THE PENALTY IS IMPOSED BY ANY OTHER LAW (MEANING, A SPECIAL PENAL LAW) a. The Maximum Term— must not exceed the maximum term fixed by said law, b. The Minimum Term— must not be less than the minimum term prescribed the same.  SIMPLY for special laws, it is anything within the inclusive range of the prescribed penalty. Courts are given discretion and the circumstances are not considered.

B. WHEN BENEFIT OF THE ISLAW IS NOT APPLICABLE The Indeterminate Sentence Law shall not apply to the following persons: 1. sentenced to death penalty or life imprisonment 2. treason, or conspiracy or proposal to commit treason 3. misprision of treason, rebellion, sedition or espionage 4. piracy 5. habitual delinquents 6. escaped from confinement, or evaded sentence

25 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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7. granted with conditional pardon by the President, but violated the terms thereof 8. maximum term of imprisonment do not exceeding 1 year 9. sentenced to the penalty of destierro or suspension only

C. RELEASE OF THE PRISONER ON PAROLE The Board of Pardons and Parole may authorize the release of a prisoner on parole, after he shall have served the minimum penalty imposed on him, provided that: a. Such prisoner is fitted by his training for release, b. There is reasonable probability that he will live and remain at liberty without violating the law, c. Such release will not be incompatible with the welfare of society.

D. ENTITLEMENT TO FINAL RELEASE AND DISCHARGE If during the period of surveillance such paroled prisoner shall: (a) show himself to be a lawabiding citizen and, (b) shall not violate any law, the Board may issue a final certification of release in his favor, for his final release and discharge.

E. SANCTION FOR VIOLATION OF CONDITIONS OF THE PAROLE When the paroled prisoner shall violate any of the conditions of his parole: (a) the Board may issue an order for his arrest, and thereafter, (b) the prisoner shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison. F. REASONS FOR FIXING THE MAXIMUM AND MINIMUM TERMS IN THE INDETERMINATE SENTENCE The minimum and the maximum terms in the IS must be fixed, because they are the basis for the following: 1. Whenever a prisoner has: (a) served the MINIMUM penalty imposed on him, and (b) is fit for release as determined by the Board of Indeterminate Sentence, such Board may authorize the release of the prisoner on parole, upon terms and conditions prescribed by the Board. 2. But when the paroled prisoner violates any of the conditions of his parole during the period of surveillance, he may be rearrested to serve the remaining unexpired portion of the MAXIMUM sentence. 3. Even if a prisoner has already served the MINIMUM, but he is not fitted for release on parole, he shall continue to serve until the end of the MAXIMUM term.

THE CHILD AND YOUTH WELFARE CODE 1. The purpose of Arts. 189 and 192 of the Child and Youth Welfare Code is to avoid a situation where JUVENILE OFFENDERS would commingle with ordinary criminals in prison. 2. If the court finds that the youthful offender committed the crime charged against him, it shall DETERMINE the imposable penalty and the civil liability chargeable against him. 3. The court may not pronounce judgment of conviction and SUSPEND all further proceedings if, upon application of the youthful offender, it finds that the best interest of the public and that of the offender will be served thereby. 4. The benefits of Article 192 of PD 603, as amended, providing for suspension of sentence, shall NOT APPLY TO (1) a youthful offender who once enjoyed suspension of sentence under its provisions, or (2) one who is convicted of an offense punishable by death or life imprisonment. 5. The youthful offender shall be RETURNED to the committing court for the pronouncement of judgment, when the youthful offender (1) has been found incorrigible; or (2) has willfully failed to comply with the conditions of his rehabilitation programs; or (3) when his continued stay in the training institution would be inadvisable. 6. When the youthful offender has reached the age of TWENTY-ONE while in commitment, the court shall determine whether – a. To DISMISS the case, if the youthful offender has behaved properly and has shown his capability to be a useful member of the community; or b. To PRONOUNCE the judgment of conviction, if the conditions mentioned are not met. 7. In the latter case, the convicted offender may apply for PROBATION. In any case, the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention. 8. The final release of a youthful offender based on good conduct as provided in Art. 196 shall not obliterate his CIVIL LIABILITY for damages 9. A minor who is ALREADY AN ADULT at the time of his conviction is not entitled to a suspension of sentence

PROBATION LAW OF 1976: PD 968, as amended A. CONCEPT

26 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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PROBATION is a disposition under which a defendant after conviction and sentence is released subject to conditions imposed by the court and to the supervision of a probation officer.

B. APPLICATION This shall apply to all offenders except those entitled to benefits under PD 6003 and similar laws.

C. RULES ON GRANT OF PROBATION 1. After having convicted and sentenced a defendant, the trial court MAY SUSPEND the execution of the sentence, and place the defendant on probation, upon APPLICATION by the defendant within the period for perfecting an appeal. 2. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. 3. NO application for probation shall be entertained or granted if the defendant has PERFECTED AN APPEAL from the judgment of conviction. 4. Filing of application for probation operates as a WAIVER OF THE RIGHT TO APPEAL. 5. The application shall be filed with the trial court, and the order granting or denying probation shall NOT BE APPEALABLE. 6. Accessory penalties are deemed suspended once probation is granted.

D. POST-SENTENCE INVESTIGATION The convict is not immediately placed on probation. There shall be a prior investigation by the probation officer and a determination by the court.

E. CRITERIA FOR PLACING AN OFFENDER ON PROBATION The Court shall consider: 1. All information relative to the character, antecedents, environment, mental, and physical condition of the offender. 2. Available institutional and community resources.

F. PROBATION SHALL BE DENIED IF THE COURT FINDS THAT: CODE: (CoRD) a. Offender is in need of correctional treatment a. There is undue risk of committing another crime a. Probation will depreciate the seriousness of the offense committed

G. DISQUALIFIED OFFENDERS: THE BENEFITS OF THIS DECREE SHALL NOT BE EXTENDED TO THOSE: a. Sentenced to serve a maximum of imprisonment of more than 6 years.

b. Convicted of subversion or any crime against the national security or the public order. c. Previously convicted by final judgment of an offense punished by imprisonment of not less than 1 month and 1 day and/or a fine not more than P200. d. Once placed on probation.

H. CONDITIONS OF PROBATION 2 KINDS OF CONDITIONS IMPOSED: 1. Mandatory or general - once violated, the probation is cancelled. They are: a. Probationer Presents himself to the probation officer designated to undertake his supervision, at such place as may be specified in the order, within 72 hours from receipt of order; b. He Reports to the probation officer at least once a month 2. Discretionary or special – additional conditions listed, which the courts may additionally impose on the probationer towards his correction and rehabilitation outside prison. HOWEVER, the enumeration is not inclusive. Probation statutes are liberal in character and enable the courts to designate practically ANY term it chooses, as long as the probationer’s Constitutional rights are not jeopardized. Also, they must not be unduly restrictive of probationer, and not incompatible with the freedom of conscience of probationer.

I.

PERIOD OF PROBATION

FOR HOW LONG MAY A CONVICT BE PLACED ON PROBATION? 1. If the convict is sentenced to a term of imprisonment of NOT more than one year, the period of probation shall not exceed two years. 2. In all other cases, if he is sentenced to more than one year, said period shall not exceed six years. 3. When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment, the period of probation shall be twice the total number of days of subsidiary imprisonment.

J. ARREST OF PROBATIONER AND SUBSEQUENT DISPOSITIONS. 1. At any time during probation, the court may issue a warrant for the ARREST of a probationer for any serious violation of the conditions of probation. 2. If violation is established, the court may (a) REVOKE his probation, or (b) continue his probation and MODIFY the conditions thereof. This order is not appealable.

27 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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3. If revoked, the probationer shall SERVE the sentence originally imposed.

K. TERMINATION OF PROBATION The Court may order the final discharge of the probationer upon finding that, he has fulfilled the terms and conditions of his probation.

L. EFFECTS OF TERMINATION OF PROBATION 1. Case is deemed terminated. 2. Restoration of all civil rights lost or suspended. 3. Fully discharges liability for any fine imposed.  Note that the probation is NOT coterminous with its period. There must first be an order issued by the court discharging the probationer.

ART. 83. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE Death sentence shall be suspended when the accused is a: 1. Woman, while pregnant; 2. Woman, within one (1) year after delivery; 3. Person over seventy (70) years of age; 4. Convict who becomes insane, after final sentence of death has been pronounced.

ART. 87. DESTIERRO ONLY IN THE FOLLOWING CASES IS DESTIERRO IMPOSED: CODE: (E-BCP) 1. Death or serious physical injuries is caused or are inflicted, under exceptional circumstances (Art. 247); 2. Failure to give bond for good behavior (Art. 284); 3. Penalty for the concubine in concubinage (Art. 334); 4. When, after reducing the penalty by one or more degrees, destierro is the proper penalty

ART. 89. HOW CRIMINAL LIABILITY IS TOTALLY EXTINGUISHED CRIMINAL LIABILITY IS TOTALLY EXTINGUISHED: CODE: (D SAAPP M) 1. By the DEATH of the convict as to personal penalties; BUT as to pecuniary penalties, liability is extinguished only when the death

of the offender occurs before final judgment; a. Whether before or after final judgment, death extinguishes CRIMINAL LIABILITY, as this penalty is deemed personal. Not so with pecuniary penalties, which are only extinguished (as they arise from the delict) when death occurred before final judgment. b. Meaning— when the accused died while the judgment of conviction against him was pending in appeal, his CIVIL AND CRIMINAL LIABILITY was extinguished by his death; UNLESS claim for civil liability may be predicated on a source of obligation other than delict. c. Death of the offended party does not extinguish the criminal liability of the offender because the offense is committed against the State. 2. By SERVICE OF SENTENCE; 3. By AMNESTY, which completely extinguishes the penalty and all its effects. Amnesty – is an act of the sovereign power granting oblivion or a general pardon for a past offense, and is rarely if ever exercised in favor of a single individual, and is usually exerted in behalf of certain classes of persons who are subject to trial but have not yet been convicted. 4. By ABSOLUTE PARDON; Pardon – is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed.

DISTINCTIONS CODE: (Any Convict looks Forward, Civil R Private) PARDON AMNESTY 1. Includes any crime and is exercised individually by the President

2. Exercised when the person is already convicted 3. Merely looks FORWARD and relieves the offender from the consequences of an offense of which he has been convicted; it does not work for the restoration of the rights to hold

1. A blanket pardon to classes of persons or communities who may be guilty of political offenses 2. May be exercised even before trial or investigation is had 3. Looks BAKCWARD and abolishes and puts into oblivion the offense itself; it so overlooks and obliterates the offense with which he is charged that the person released by

28 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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public office, or the right of suffrage, unless such rights be expressly restored by means of pardon 4. Does not alter the fact that the accused is a recidivist as it produces only the extinction of the personal effects of the penalty 5. Does not extinguish the civil liability of the offender 6. Being a PRIVATE ACT by the President, must be pleaded and proved by the person pardoned

amnesty stands before the law precisely as though he had committed no offense 4. Makes an exconvict no longer a recidivist, because it obliterates the last vestige of the crime

5. Does not extinguish the civil liability of the offender 6. Being by Proclamation of the Chief Executive with the concurrence of Congress, is a PUBLIC ACT of which the courts should take notice

5. By PRESCRIPTION OF THE CRIME; Prescription of the Crime – is the forfeiture or loss of the right of the State to prosecute the offender, after the lapse of a certain time. 6. By PRESCRIPTION OF THE PENALTY; Prescription of the Penalty – is the loss or forfeiture of the right of the Government to execute the final sentence, after the lapse of a certain time Conditions necessary: a. That there be final judgment; b. That the period of time prescribed by law for its enforcement has elapsed 7. By THE MARRIAGE OF THE OFFENDED WOMAN with the offender in the crimes of rape, abduction, seduction, and acts of lasciviousness. In the crimes of rape, seduction, abduction, or acts of lasciviousness, the marriage, as provided under Art. 344, must be contracted by the offender in good faith.

ART. 94. PARTIAL EXTINCTION OF CRIMINAL LIABILITY CRIMINAL LIABILITY IS PARTIALLY EXTINGUISHED: 1. By CONDITIONAL PARDON; 2. By COMMUTATION OF THE SENTENCE; 3. For GOOD CONDUCT ALLOWANCES which the culprit may earn while he is serving sentence; 4. By PAROLE; a. Parole – is the suspension of the

sentence of a convict, after serving the minimum term of the indeterminate penalty, without granting a pardon, prescribing the terms upon which the sentence shall be suspended b. If the convict fails to observe the conditions of the parole, the Board of Pardons and Parole is authorized to (1) direct his ARREST, AND RETURN TO CUSTODY and thereafter; (2) to CARRY OUT HIS SENTENCE WITHOUT DEDUCTION of the time that has elapsed between the date of the parole and the subsequent arrest.

DISTINCTIONS Conditional Parole Pardon 1. May be given at 1. May be given any time after after the prisoner final judgment; is has served the granted by the minimum Chief Executive penalty; is under the granted by the provisions of the Board of Administrative Pardons and Code Parole under the provision of the Indeterminate Sentence Law 2. For violation of 2. For violation of the conditional the terms of the pardon, the parole, the convict may be convict CANNOT BE PROSECUTED ordered reUNDER ART. 159 of arrested or rethe RPC, he can incarcerated by be re-arrested the Chief and reExecutive, or incarcerated to may be serve the PROSECUTED unserved portion under Art. 159 of of his original the Code penalty 5. by PROBATION. Please see Probation Law.

ART. 100. CIVIL LIABILITY OF A PERSON GUILTY OF FELONY A CRIME HAS A DUAL CHARACTER: 1. As an offense against the State, because of the disturbance of the social order; and 2. As an offense against the private person injured by the crime, UNLESS it involves the crime of treason, rebellion, espionage, contempt, and others wherein no civil liability arises on the part of the offender, either

29 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.

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because there are no damages to be compensated or there is no private person injured by the crime

EFFECT OF ACQUITTAL Extinction of the penal action does NOT carry with it extinction of the civil; UNLESS the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist.

EFFECT OF DISMISSAL OF CASE The Dismissal of the information or the criminal action does NOT affect the right of the offended party to institute or continue the civil action already instituted arising from the offense, because such dismissal or extinction of the penal action dose not carry with it the extinction of the civil one

EFFECT OF DEATH 1. Only the criminal liability (including the fine which is pecuniary), but not the civil liability of the accused, is extinguished by his death. 2. Civil liability may exist, although the accused is not held criminally liable, in the following cases: (a) Acquittal on reasonable doubt (b) Acquittal from a cause of nonimputability (c) Acquittal in the criminal action for negligence (d) When there is only civil liability (e) In case of independent civil actions

ART. 104. WHAT IS INCLUDED IN CIVIL LIABILITY THREE CATEGORIES: 1. Restitution 2. Reparation of damage caused 3. And indemnification for consequential damages

ART. 106. REPARATION - HOW MADE By the payment of the actual price of the thing plus its sentimental value.

-End of Book One-

30 CRIMINAL LAW MEMORY AID COMMITTEE: MARIE PAHATE, Chairperson; Michelle Africa, edp; Jun Nunag, edp; Paul Laguatan, edp; Members: Arcy Tabuzo, Carol Arciaga, Charo Rejuso, Chiqui Kalaw, Doy Bruce, Gerard Penalosa, Ice Arrieta, Jazzy Isip, Jessica Singson, Joyce Castaneda, Kristine Joy Diaz, Lourdes Barrientos, Mayette Galang, Millicent Tabing, Mitch Munoz, Katrina Ode, Pammy Palad, Paul Lim, Pio Chua, Tin Constantino, TJ Adriano, Tonton Tabaquin.