Pointers in Criminal Law.pdf

TABLE OF CONTENTS Introduction……………………………………………………………..

1

Book One GENERAL PROVISIONS REGARDING THE DATE OF ENFORCEMENT AND APPLICATION OF THE PROVISIONS OF THIS CODE, AND REGARDING THE OFFENSES, THE PERSONS LIABLE AND THE PENALTIES

Title One

FELONIES AND CIRCUMSTANCE WHICH AFFECT CRIMINAL LIABILITY Chapter One – Felonies………………………………………………. 11 1. Classification of Felonies…………………………………. 12 2. Incurrence of Criminal Liability ……………………………14 3. Duty of Court When Penalty is Excessive………………. 20 4. Stages of Execution……………………………………… ..21 5. Light Felonies………………………………………………. 24 6. Conspiracy and Proposal to Commit Felony……………. 25 7. Offenses not Subject to the Code…………………………26 Chapter Two – Circumstances Affecting Criminal Liability …………27 1. Justifying Circumstances……...………………………….…27 2. Exempting Circumstances…………………………………. 32 3. Mitigating Circumstances……..…………………………… 37 4. Aggravating Circumstances….…………………………….. 43 5. Alternative Circumstances…….……………………………. 62

Title Two PERSONS CRIMINALLY LIABLE FOR FELONIES 1.Who are liable ……………………………………….. …..65 2. Principals…………………………………………………...65 3. Accomplices………………………………………………..68 4. Accessories………………………………………………...69 Title Three PENALTIES 1. Penalties In General……………………………………...73 2. Classification of Penalties……………………………… .73 3. Duration of Penalties………………….………………….75 4. Preventive and Subsidiary Imprisonment………………76 5. Application of Mitigating and Aggravating………………77 6. Other Effects of Penalty…………………………………..80 7. Complex Crimes and Their Penalties………..………….81 8. Continuing Crime………………………………..…………82 9. Indeteminate Sentence Law………………………………83 10. Probation Law………………………………………………86 11. Conditions of Probation……………………………………88 12. Other Instances When Probation Not Applicable……….88 Title Four EXTINCTION OF CRIMINAL LIABILITY: TOTAL AND PARTIAL 1. Extinction of Criminal Liability (Total and Partial)……….89 2. Reason for Prescription of the Crime and/or Penalty…………………………………..………94 3. Marriage of the Offended Party with the Offender…………………………………………..…95 4. Partial Extinction of Criminal Liability……………………..96

Title Five CIVIL LIABILITY 1. Person Civilly Liable for Felonies……………………………..97 2. Civil Liability of Parents and/or Guardians…………………..…………………………………...97 3. Subsidiary Liability of Inn Keepers, Tavern-Keepers, Employers, Teachers or Persons Engaged in Industry………………………………………………………98

INTRODUCTION CRIMINAL LAW Definition Criminal Law is that branch or division of public law which defines crimes, treats of their nature, and provides for their punishment. Crime is defined as an act committed or omitted in violation of public law forbidding or commanding it. It is a positive or negative act in violation of penal law; an offense against the state. (Black’s Law Dictionary) Accused is a person formally charged in court for having violated a penal law – either the Revised Penal Code or a special law; a person whom an accusastion is made. (Black’s Law Dictionary)

Sources of Philippine Criminal Law 1. The Revised Penal Code (Act No. 3815) which took effect on January 1, 1932, and its amendments; 2. Special laws defining acts and providing penalties for them passed by the legislative department or branch of Philippine Government known variously in Philippine history as Philippine Commission, Philippine Assembly, Philippine Legislature, National Assembly, Batasang Pambansa and Congress of the Philippines; 3. Presidential Decree of Pres. Ferdinand E. Marcos during his term; and 4. Executive Orders of Former Pres. Corazon C. Aquino during her incumbency.

Rights of the Accused A. Constitutional Rights

1. Right to bail except those charged with offenses punishable by reclusion perpetua (and/or death) when evidence of guilt is strong. (Sec. 13, Art. III) 2. To be presumed innocent until the contrary is proved, to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witness face to face, and the right to compulsory process to secure attendance of witnesses, and production of evidence. (Sec. 14, Art. III)

3. Not to be compelled to be a witnessed against himself. (Sec. 17, Art. III) 4. Right against excessive fines or cruel, degrading or inhuman punishment. (Sec. 19, Art. III) 5. Right not to be put twice in jeopardy of punishment for the same offense. (Sec. 2, Art. III) B. Statutory Rights 1. To be presumed innocent until the contrary is proved beyond reasonable doubt. 2. To be informed of the nature and cause of accusation against him 3. To be present and defend in person and by counsel at every stage of the proceedings; to defend himself in person when its sufficiently appears to the court that he can protect his rights without the assistance of counsel. 4. To testify as a witness in his own behalf. 5. To be exempt from being compelled to be a witness against himself. 6. To confront and cross-examine the witness against him. 7. To have a compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf. 8. To have a speedy, impartial and public trial, and 9. To have the right to appeal in all cases allowed and in the manner prescribed by law. (Sec. 115, Rules of Court) It must be taken note of that the right to appeal is not a constitutional right. Congress may therefore pass a law eliminating or taking away this right.

Cardinal Features or Main Characteristics or Components of Philippine Criminal Law There are three (3); 1. General - meaning that Philippine criminal laws are binding on all persons who live or sojourn in the Philippines. Whoever you are, whatever be your creed, religion, sex or nationality, as long as you reside in the Philippine territory, penal laws of the Philippines shall apply on you. Thus, the contention of the accused that being an American citizen he can not be prosecuted for, much less convicted of, Illegal Possession of Firearm because it is a constitutional right of the citizen of the U.S.A. “to keep and bear arms” without need of securing government license therefore is untenable since the Philippines, as a sovereign state, has a right to uphold its law and maintain order within its domain, and with the general jurisdiction to punish person for offenses committed within its territory. (People vs. Galacgac, C.A. 54 O.G. 1027) There are exceptions to this general application of criminal Law: A. Principles of Public International Law Thus, sovereigns and other chiefs of state, Ambassadors, Ministers plenipotentiary, Minister residents, and charges d’affaires even if residing or sojourning in the Philippines, and committing crimes herein not subject to our penal laws. B. Treaties or Treaty Stipulations The persons who are exempted from the operation or application of our criminal laws under the provisions of the treaties entered into by the Philippines with another country are likewise exempted. Under the defunct Military Base Agreement entered into by Philippines and U.S.A. on March 14, 1947 – any offense committed outside the bases by any member of armed forces of the United States where the offended party is also a member of the said armed forces is not cognizable by the Philippine courts. Under the VFA, an American soldier committing a crime during military exercises is also exempt from the operation of Philippine criminal law. C. Laws of Preferential Application An example is Sec. 11 of Art.VI of the Constitution which provides that “No member shall be questioned nor be held liable in any other place for any speech or debate in Congress or in any committee thereof. “Thus, if a Senator A delivers a libelous speech in Congress against B, he can not be punished or be held liable even if he is residing in the Philippines. 2. Territorial - in that our criminal law undertakes to punish crimes committed only within the Philippine territory. Outside of the parameters of the Philippine archipelago, Philippine criminal laws can not be enforced. There are exceptions however. Under Art. 2 of the Revised Penal Code, there are five (5) instances where the provisions shall be enforced outside of the jurisdiction of our country against those who:

A. Should commit an offense while on a Philippine ship or airship. B. Should forge or counterfeit any coin or currency note of the Philippines or obligations and securities issued by the Government of the Philippines. C. Should be liable for acts connected with the introduction into the Philippines of the obligations and securities mentioned in the preceding number. D. While being public officers or employees, should commit an offense in the exercise of their functions; or E. Should commit any of the crimes against national security and the law of nations defined in Title One of Book Two of this Code. 3. Prospective - meaning that a penal law can not make an act punishable when it was not punishable when committed. In other words, crimes are punished under the laws in force at the time the same were perpetrated. It is consonance with the constitutional prohibition against Ex Post Facto Law. It reflects the maxim: mullum crimen sine poena; nulla poena sine lege - that is, there is no crime without a penalty and there is no penalty without law. Exception however is provided for by Article 22. It says: Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code x x x. The retroactive effect shall benefit the accused even if at the time of the publication of the law, a final judgement has been pronounced and the convict is serving sentence. Even if the law uses the words “felony” and “habitual criminal as this term is defined in Rule 5 of Article 62,” this is applicable to special laws which provide more favorable conditions to the accused. (People vs. Soliman, 36 Phil. 5; People vs. Simon, 234 SCRA 555; People vs. De Lara, 236 SCRA 291) There is no retroactive effect however, even if the law is favorable to the accused if he is a habitual delinquent or where the law is expressly made inapplicable to pending actions. (Tavera vs. Valdez, 1 Phil. 468) If the repealing law favors the accused by diminishing the penalty, or doing it away altogether, then the same should be applied to the extent it is favorable to the offender. (People vs. Soliman, 36 Phil. 5) If a repealing law contains provisions which are favorable to the accused and also provisions unfavorable to the accused and also provisions unfavorable to the accused only those parts which are favorable to the accused shall be given retroactive effect. Although R.A. No.8294, took effect on 6 July 1997, or after the crimes involved in the case at bar were committed in 1994, it is advantageous to the accused, hence it should be given retrospective application in so far as it spares the accused from a separate conviction to the crime of Illegal Possession of Firearm. (People vs. Candido, 383 SCRA 296)

Judicial decisions which are favorable to the accused who is not a habitual delinquent shall also be accorded retroactive effect. If the new law fails to penalize the act, then the Court loses jurisdiction, as in effect, there is no crime existing.

INTERPRETATION IN CASE OF DOUBT Where doubt exists, the penal law must be interpreted liberally in favor of the accused and strictly against the state. Thus a boy who killed his classmate on his ninth (9th) birthday and acting with discernment is not criminally liable since there is a doubt in the provision of the law. Article 12, par. 2 provides that a person under (9) years of age is exempt from criminal liability (even if he acted with discernment) while a person over nine(9) and under fifteen (15) years old is not exempt if he acted with discernment. So if the boy will kill his classmate when he was exactly nine(9) years old because it was his birthday, doubt would exist as to his criminal responsibility. He will be considered exempt as penal laws are to be interpreted liberally in favor of the accused. This is the Pro reo doctrine. Under R.A. No. 9344, a child exactly fifteen years of age or below is exempt from criminal responsibility, if he is more than fifteen but below eighteen, he is exempt unless he acted with discernment. The Supreme Court has always ruled that agrarian laws must be interpreted in favor of the grantees in order to give full force and effect to the clear intent of such law. (Estolas vs. Mabalot 381 SCRA 702) However, when the law speaks in clear and categorical language, there is no room for interpretation, vacillation or equivocation – there is only room for application. (Cooperative Development Authority vs. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc., 382 SCRA 552)

BOOK ONE General Provisions Regarding the Date of Enforcement and Application of the Provisions of this Code, and Regarding the Offenses, the Person Liable and the Penalties

Title One FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY CHAPTER ONE

FELONIES Felonies are acts and omissions punishable by law. (Art. 3, par. 1) The word “felony” has been understood to mean an act or omission punished by the Code; it does not cover a crime punished by a special law. (Filipinas Life Assurance Co. vs. Tolentino, SP-5858, October 1, 1976) They are committed not only by means of deceit (dolo) – that is, when the act is performed with deliberate intent, but also by means of fault (culpa) meaning, when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. (Art. 3, pars. 2 and 3) Felonies take the form of a positive act – like killing a person – Homicide or Murder, or taking unlawfully personal property – Theft or Robbery, or an omission or failure to perform an act, like failure to issue a receipt of a public officer entrusted with collection of taxes (Illegal Exaction) or failure to deliver within the prescribed time a person arrested (Delay in the Delivery of Detained Person). In felony by omission however, there must be a law requiring the doing or the performance of an act. Thus, mere passive presence at the scene of a crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy is not punishable. Where therefore R, about a meter away from M, her live-in partner, did not do anything despite M’s threat that he would burn the house which he actually put on fire, she can not be held criminally liable with M, there being no proof of conspiracy between them. (People vs. Silvestre & Atienza, 56 Phil. 358) The act or omission however, must be punishable by laws. This is based on the maxim NULLUM CRIMEN NULLA POENA SINE LEGE – that is, “there is no crime where there is no law punishing it.”

CLASSIFICATION OF FELONIES A. According to manner or mode of execution (Art. 3) 1. Intentional felonies – committed by means of deceit or malice. Example: Murder, Estafa 2. Culpable felonies – where the wrongful acts result from imprudence, negligence, lack of foresight or lack of skill Example: Homicide thru Reckless Imprudence or Reckless Imprudence resulting to Homicide.

xxx

B. According to stage of execution (Art.6) 1. Consummated – when all the elements necessary for its execution and accomplishment are present. 2. 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. 3. Attempted – 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. C. According to gravity (Art.9) 1. Grave felonies – those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive in accordance with Art. 25 of the Revised Penal Code. Example: Rape, Parricide 2. Less Grave felonies – those which the law punishes with penalties which in their maximum period are correctional. Example: Attempted Homicide, Illegal Discharge of Firearm 3. Light felonies – those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding two hundred (P200.00) pesos, or both provided. Example: Slight Physical Injuries, Alarm and Scandal under Article 155 While Article 3 classifies the crimes into Intentional and Culpable, a third class can be grouped with it – that its, those defined and penalized by special laws which include crimes punished by city or municipal ordinances. They are generally referred to as mala prohibita. As a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. The act alone, irrespective of the motives, constitutes the offense. Good faith is not defense. Mala in se and Mala prohibita, distinguished Mala in se are crimes which are wrong from their nature, such as murder, theft, rape, etc., while those that are mala prohibita are wrong, merely because they are prohibited by statute, like Illegal Posession of Firearm or violation of the Ombus Election Law. Crimes mala in se are those so serious in their effects on society as to call for the almost unanimous condemnation of its members, while crimes mala prohibita are violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of society.

When the acts however are inherently immoral, they are mala in se, even if punished under special law and before the actor can be held liable, there must be malice or criminal intent.

Thus, election inspectors and poll clerks who were tasked to transfer the names of excess voters in one precinct to a newly created precinct and because of pressures of work and fatigue, omitted some names of person, who then were not allowed to vote, when charged with violation of the Election Code, relied on good faith as a defense. The CFI, reasoning that the offense is malum prohibitum and good faith is not a defense, convicted them. On appeal, the Court of Appeals in acquitting the accused ruled that the failure or omission to include a voter’s name in the registry list of voters is not only wrong because it is prohibited, it is wrong per se because it disenfranchises a voter and violated his constitutional right. To be held liable, the election inspectors and poll clerks, must act willfully and maliciously. (People vs. Sunico, et. al., C.A. 50 O.G. 5880)

INCURRENCE OF CRIMINAL LIABILITY Criminal liability shall be incurred: (1)By any person committing a felony (delito) although the wrongful act done be different from that which he intended, and (2)By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. (Art. 4) This article does not mean to exclude offenders who are liable even if they do not fall under any of the situations spoken of in the said article. Thus, a person who committed a crime which he really intended is no doubt liable for that offense like, if A, intending to kill his father, shot him, he is liable for the death of his father. The opening sentence of Article 4 should have been: “Criminal liability shall also be incurred by.” No. 1 speaks of a situation where a person was committing a felony but the consequence was not the one he had intended. He must, however, be perpetrating or committing an offense otherwise there can be no criminal liability. Thus, if A, in attempting to commit suicide, jumped out from the window of a four (4)-story building and fell on another person who was killed, you cannot hold him criminally liable for Intentional Homicide because he was not committing any felony at that time since committing suicide is not a felony. There are three (3) scenarios under paragraph 1 of Article 4: A. Error in personae (mistake in the identity of the victim) - Two (2) peace officers were ordered to arrest Balagtas, an escaped notorious convict, and proceeding to the latter’s house, saw a man sleeping with his back towards the door and fired at him but the man turned out to be Serapio Tecson, the Supreme Court ruled they are guilty of murder. (People vs. Oanis, et. al., 74 Phil. 257)

When they fired on the sleeping man without making any inquiry and believing him to be the notorious escapee, the peace officers were committing a felony. Their wrongful intent was to hit or kill Balagtas but the wrongful act that was done was the killing of Serapio Tecson. B. Aberratio ictus (mistake in the blow) – Thus, if X, intending to kill Y, fired at the latter but the shot hit Y only superficially and killed Z, his own father, he (X) is criminally liable for Attempted Homicide with Parricide. When X shot Y, he was perpetrating a felony with the wrongful intent to kill Y. the wrongful act committed was the killing of his own father which he never intended. In People vs. Guillen, 85 Phil 307, the accused who threw a hand grenade at Pres. Roxas but killed Simeon Varela and injured several persons was found guilty of Murder with Assault and Multiple Attempted Murder. C. Praeter intentionem (Injurious result is greater than that intended) – Thus, if A slapped his wife who fell on the ground, her head hitting a hard pavement rendering her unconscious and thereafter died, A is liable for Parricide. When he slapped his wife, A was committing a felony. His wrongful intent is only to cause injury but the wrongful act done was greater – the killing of the spouse. In U.S. vs. Marasigan, 27 Phil. 504, where the accused attacked the offended party with a knife, and in the process of warding off the same, his left hand was injured, severing the extensor tendon in one of the fingers, the Supreme Court held that the accused is criminally liable. The fact that the original condition of the finger could be restored by a surgical operation is immaterial and the victim is not obliged to submit to a surgical operation to relieve the accused of the natural and ordinary results of his crime. The wrong done, however, must be the direct and natural consequence of the felonies act. Stated otherwise, the felony committed must be the proximate cause of the resulting injury. Proximate cause has been defined as “that 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.” (Vda. De Batacan, et. al. vs. Medina, 102 Phil. 181, citing Vol. 38 of Am. Jur.) In Bringas vs. People, et. al., 125 SCRA 687, where the conductor shouted “Lusacan, Lusacan” knowing that the train would reach the Lucasan Station full three (3) minutes more and deceased Martina Bool, a passenger, walked towards the left front door facing the direction of Tiaong, Quezon carrying a child with one hand and holding her baggage with another, and when the train that slowed down suddenly picked up speed causing Martina Bool and the three (3)-year-old child she was carrying to fall from the door causing their deaths, the Supreme Court said: “The proximate cause of the death of the victims was the premature and erroneous announcement of the conductor. This announcement prompted the two (2) victims to stand and proceed to the nearest exit. Without said announcement, the victims would have been safely seated in their respective seats when the train jerked as it picked up speed. The connection between the premature and erroneous announcement of the accused and the deaths of the victims is direct and natural, unbroken by any intervening efficient causes.”

Even if other causes cooperated in producing the fatal result as long as the wound inflicted is dangerous, that is, calculated to destroy or endanger life, the actor is liable. This is true even though the immediate cause of death was erroneous or unskillful medical or surgical treatment, refusal of the victim to submit to surgical operation, or that the deceased was suffering from tuberculosis, heart disease or other internal malady or that the resulting injury was aggravated by infection. (See The Revised Penal Code, Book I by Luis B. Reyes, citing U.S. vs. Marasigan, 27 Phil 504; People vs. Illustre, 54 Phil 594; People vs. Reyes, 61 Phil 341, People vs. Quianson, 62 Phil 162; and People vs. Red, C.A. 43 O.G. 8072) There must, however, be no efficient intervening cause. In U.S. vs. Valdez, it was ruled that if a person against whom a criminal assault is directed, reasonably believes himself to be in danger of death or great bodily harm and in order to escape, jumps into the water, impelled by the instinct of self-preservation, from drowning owing to his possible inability to swim or the strength of the current. The inability to swim and the strong current can be considered intervening causes but not efficient ones since they are not acts or facts absolutely foreign from the criminal act. On the other hand, in People vs. Rockwell, 39 Mich. 503, an American case, the assailant was not held responsible for the death of a person whom he knocked down with his fist but who was jumped on by a nearby horse killing him, because the act of the horse constitutes an efficient intervening cause.

Impossible Crime An act performed with malice which would have been an offense against person or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. This is the only crime provided for in Book I of the Revised Penal Code. The Court having in mind the social danger and the degree of criminality shown by the offender shall impose the penalty of arresto mayor or a fine ranging from two hundred (P200.00) to five hundred (P500.00). (Art. 59, RPC) The requisites are: A. The act performed would be an offense against persons or property like Parricide, Murder, Homicide, Abortion, Duel or Physical Injuries, or Robbery, Brigandage, Theft, Usurpation, Culpable Insolvency, Estafa and Other Deceits, Chattel Mortgage, Arson and Malicious Mischief. B. That the act was done with evil intent. C. That its accomplishment is inherently impossible or that the means employed is either inadequate or ineffectual. Examples: Inherent Impossibility (Legal and Physical) A saw B lying down whom he thought was only sleeping. So with intent to kill, he stabbed B several times on his chest. It turned out that B had been dead twenty (20) or thirty (30) minutes ago.

Legal Impossibility X stole the ring which Y inadvertently left on his desk. It turned out that the said ring was the one X lost two(2) days ago.

Physical Impossibility A, B, C, D & E, all armed, proceeded to the house of X whereupon A pointed to the room that X used to occupy and all fired at the said room. Nobody was hit as no one was inside the room. This is a case of Impossible Crime to Commit Murder: (Intod vs. Court of Appeals, et. al., 215 SCRA 52) A saw a beautiful lady lying down already dead, but thinking that she was only sleeping, undressed and had sex with her. This is an Impossible Crime to Commit Rape considering that under R.A. No. 8353, the crime rape has been reclassified as an offense against persons, no longer a crime against chastity. Ineffectual means – Giving a person a drink mixed with sugar which accused believed to be poison Inadequate means – If it were really poison, the quantity is not sufficient to kill. In case of inadequate means, the intended victim should not suffer any injury, otherwise the crime could be attempted or frustrated homicide or murder as the case maybe.

Is There A Common Law Crime in the Philippines? No, as the par. 1 of Art. 5, RPC provides that whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, that is, dismiss the case, and shall report to the Chief Executive through the Department of Justice, the reasons which induced the court to believe that said act should be made the subject of penal legislation. B.P. Blg. 22 is a product of this article, considering the difficulty securing a conviction for Estafa committed by issuing a postdated check under Art. 315, par. 2[d] since the defense of having been issued in payment of a preexisting obligation has always come out as a ready-made defense. Under this law, even if the dishonored check was issued in payment of a pre-existing obligation, and the drawer or maker commits no deceit, he is criminally liable. The elements of the offense under B.P. Blg. 22 are (a) the making, drawing and issuance of any check to apply to account or for value; (b) the maker, drawer and issuer knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason, had not the drawer without any valid reason, ordered the bank to stop payment. (Bautista vs. Court of Appeals, et. al., 360 SCRA 618)

DUTY OF COURT WHEN PENALTY IS EXCESSIVE Courts Are Not Concerned With Wisdom, Efficacy Or Morality Of Laws The court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. (Art. 5, par. 2, RPC) A daughter who killed her father while he was sleeping because the latter had raped her, resulting in her pregnancy, should be punished with death by the court since Parricide is punishable by reclusion perpetua to death, and there is an aggravating circumstance of treachery. The ordinary mitigating circumstance of vindication of a grave offense, or passion or obfuscation will not affect the imposable penalty as the same is in indivisible penalty. (Art. 63) However, the Judge may write the President of the Philippines for the granting of Executive Clemency to the poor daughter on account of the circumstances of the case. In People vs. Veneracion, 249 SCRA 244, it was ruled: “We are aware of the trial judge’s misgivings in imposing the death sentence because of his religious convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the law itself provides for the sentence of death as a penalty in specific and well-defined instances. The discomfort faced by those forced by law to impose the death penalty is an ancient one but it is a matter upon which judges have no choice.” STAGES OF EXECUTION Felonies could be attempted, frustrated or consummated. It is consummated when all the elements necessary for its execution and accomplishment are present. (Art. 6, par. 1) Thus, if A, intending to kill B, shoots the latter to death, the crime is consummated Homicide or Murder, as the case may be. A felony 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. (Ibid.) In the example above, if A hit B on a vital portion of the body which injury could cause the death of B but because of timely medical attention B did not die, this is a case of Frustrated Homicide or Frustrated Murder. There is an attempt when the offender commences the commission of a felony directly by overt acts, 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 (par. 3, Ibid.) So, if in the above-cited example, A shot B but missed or hit B only on a superficial part of his body which would could not cause B’s death, A is liable only for Attempted Homicide or Attempted Murder. In the same vein, if A poked a gun at B and squeezed the trigger but it jammed and no bullet was fired, the attempted stage has been reached.

How To Properly Determine The Stage Of Execution In determining whether the felony is attempted, frustrated or consummated, it is important to consider (1) the nature of the crime; (2) the elements constituting the offense; (3) the manner of committing the same. Thus, considering the nature of the crime of Arson when a building is set on fire, it is not necessary that it should be entirely consumed in order to constitute the consummated stage, nor is it affected by the prompt extinction of the fire. (U.S. vs. Po Chengco, 23 Phil. 487) Where the offender is about to set on fire a building but was apprehended before any portion gets burned, it would be Attempted Arson. Where rags and jute sacks soaked in gasoline and placed near the house that the offender intends to burn, were put on fire before any part of the house catches fire, the crime would be Frustrated Arson. With respect to Theft, the same is consummated once the offender takes or gets hold of the material possession of the property with intent to gain. It is not necessary that he be able to carry it away. Thus, the accused who abstracted a leather belt from a Japanese tourist and placed it in the drawer of his desk, he being an inspector of the Bureau of Customs, is guilty of Consummated Theft. (U.S. vs. Adiao, 38 Phil. 754) So also, where the accused, after untying a carabao from a tree near the offended party’s house, was apprehended after pulling the carabao away by about two (2) or three (3) meters, the crime is Consummated Qualified Theft. In Valenzuela vs. People (June 2007), the Supreme Court held that there is no such crime as Frustrated theft ruling out that before the offender takes hold of the personal property with intent to gain, it is attempted, once he takes hold of it, it is consummated. He need not be able to carry it away. This is to be distinguished from Estafa where damage to the offended party is one of the elements to consummate it. In U.S. vs. Dominguez, 41 Phil. 408, the accused, a salesman was held liable only for Frustrated Estafa even if the proceeds of the sale which he failed to turn over to the cashier was found out to be in his pocket. There was no damage yet to the owner of the store because of the timely discovery. In Robbery with force Upon Things (Arts. 299 or 302), where the accused had entered the building or house, and had removed the property he intended to steal but was apprehended before he could get out, the crime is Frustrated Robbery. (People vs. Jose Del Rosario, C.A. 46 O.G. 332) If he was caught in the act of removing the property, the crime would be Attempted Robbery. If he was able to bring the property out of the house or building, he would be guilty of Consummated Robbery. Anent the manner of committing crime, there are offenses which are consummated in one instant and the act cannot be split into parts to be categorized as attempted or frustrated like Slander or Libel. They are called Formal Crimes. There are also crimes which are consummated by mere attempt, proposal or overt act. Thus, the crime of Flight to Enemy’s Country (Art.121) is consummated by mere attempt. In Abuses Against Chastity (Art. 245), mere solicitation or proposal consummates the offense. So also, Art. 185 (Machinations in Public Auctions) which punishes any person who shall solicit

any gift or promise as a consideration for refraining from taking part in any public auction. In material crimes like Homicide, Rape, Murder, etc., there are three (3) stages of execution. Thus, if A would stab or shoot B, missing him or injuring him only superficially, the crime is Attempted Homicide or Murder; but if he hit B and inflicted injuries which otherwise would have been fatal were it not for timely medical attention, it is Frustrated; if B dies, the case is Consummated Homicide or Murder. In the crime of rape, the accused who placed himself on top of a woman, raising her skirt and unbuttoning his pants, the endeavor to have sex with her very apparent, is guilty of Attempted Rape. Note: (If the effort to have sex is not clear, the crime is only Acts of Lasciviousness) On the other hand, entry on the labia or lips of the female organ by the penis, even without rupture of the hymen or laceration of the vagina, consummates the crime. (People vs. Tayabas,62 Phil. 559; People vs. Royeras, 56 SCRA 666; People vs. Amores, 58 SCRA 505) This brings us to the question of Frustrated Rape. In People vs. Orita, 184 SCRA 105, the Supreme Court said: Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim, he actually attains his purpose and, from that moment all the essential elements of the offense have been accomplished xxx the felony is consummated. xxx Any penetration of the female organ by the male organ is sufficient. xxx Necessarily, rape is attempted if there is no penetration of the female organ because not all acts of execution was performed. The offender merely commended the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. The court continued that the case of People vs. Erina,50 Phil. 998, where the accused was found guilty of Frustrated Rape, appears to be a “stray” decision in as much as it has not been reiterated in their subsequent decisions, and that the particular provision on Frustrated Rape in Art. 335 as amended by R.A. No.2632 and R.A. No. 4111 is a dead provision prompted probably by the Erina case. (NOTE: R.A. No.7659, Sec. 11 also contains the provision that when the Rape is attempted or frustrated and a Homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death). In People vs. Aca-ac,357 SCRA, it was the ruling of the Supreme Court that there is no such crime as Frustrated Rape.

LIGHT FELONIES Light felonies are punishable only when they have been consummated, with the exception of those committed against person or property. Thus, a person who, within any town or public place, attempts to fire or to discharge his gun is not criminally liable even if his acts would fall under Art. 155 punishing Alarms and Scandals in its attempted stage as this light felony is a crime against public order.

Likewise, in light felonies, only the principals and accomplices are liable (Art. 16) so that a policeman who assists in the escape of a person who slightly injured another (Slight Physical Injuries) is not liable. (NOTE: See P.D. No. 1829 however)

CONSPIRACY AND PROPOSAL TO COMMIT FELONY

Conspiracy and Proposal to commit felony are punishable only in the cases in which the law specially provides a penalty therefore. (Art. 8. par. 1) Conspiracy to commit a felony as well as Proposal to commit a felony is, generally speaking, not crimes. As such, they are not punishable. Thus, although conspiracy to murder a person is apparent, the conspirators can not be held criminally liable because there is no law punishing Conspiracy to Commit Murder. If what was done however was Conspiracy to Commit Rebellion, then the conspirators are liable because there is a law that punishes Conspiracy to Commit Rebellion. (Art. 136) The same is true with Proposal to commit a felony. Unless there is a law that punishes Proposal to commit a crime, the proponents are not liable. Art. 115 punishes Conspiracy and Proposal to Commit Treason, while Sec. 5 of R.A. No. 6968 penalizes Conspiracy and Proposal to Commit Coup d’etat. On the other hand, Conspiracy to Commit Sedition (not Proposal) is punishable under Art. 141, while Sec. 8 of P.D. No. 1613 punishes Conspiracy (not Proposal) to Commit Arson. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. (par. 2, Ibid.) It could be evidenced by a written agreement among the conspirators or by their verbal covenant, or it could be inferred from the conduct of the accused before, during and after the commission of the crime. People vs. Manuel,234 SCRA 532) There is proposal when the person who has decided to commit a felony proposes its execution to some other person or persons. (par. 3, Ibid.) To constitute proposal, in law, the proponent himself must be determined to commit the crime so that if he only aired his grievances against the government and made suggestions on how to fight the authorities, he can not be considered liable for Proposal to Commit Rebellion. Under Section 7 of P.D. No. 1613. Conspiracy to commit Arson shall be punished by prision mayor in its minimum period. It would seem that like in Sedition there is no crime of Proposal to Commit Arson. On matters of conspiracy, it is a settled rule that it need not be proved by direct evidence prior agreement on the commission of the crime as the same can be inferred from the conduct of the accused before, during and after the perpetration of the offense showing that all the accused acted in unison with each other, evincing a common purpose or design. ( See People vs. Pablo,349 SCRA 79)

OFFENSES NOT SUBJECT TO THE CODE Special Laws Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. (Art. 10) Thus, in case of conflict between the provisions of the special laws and those of the Revised Penal Code, the former shall prevail. The provisions of the latter however shall be supplementary to special laws whenever applicable. In People vs. Simon,234 SCRA 555, citing People vs. Macatanda,109 SCRA 35, it was held: “While these are special laws, the fact that the penalties thereunder are those provided for in the Revised Penal Code lucidly reveals the statutory intent to give the related provisions on penalties for felonies under the Code the corresponding application to said special laws, in the absence of any express, or implicit proscription in these special laws.”

CHAPTER TWO

CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY

There are five (5) circumstances affecting the criminal liability of an individual. They are justifying, exempting, mitigating, aggravating, and alternative circumstance. (Arts. 11, 12, 13, 14, and 15)

JUSTIFYING CIRCUMSTANCES 1. Self-Defense No. 1 in justifying circumstances is SELF-DEFENSE. Thus, anyone who acts in defense of his person or rights incurs no criminal liability provided that the following circumstances concur: (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.

This includes defense of honor, defense of home as defense of property. Unlawful aggression on the part of the injured or the victim is the first element of self-defense. This is and indispensable requisite even in incomplete self-defense. (People vs. Deopante,G.R. No. 102772, October 30, 1996) Without this requisite, we can not speak of complete self-defense as a justifying circumstance, or incomplete self-defense as a mitigating circumstance. (Art. 13, par. 1)

Unlawful Aggressio means an assault or attack, or a threat in an imminent and immediate manner which places the defendant’s life in actual peril. (Philippine Law Dictionary by Moreno, 3rd Ed., 1980) There must be an actual assault or a threat but in case of the latter, it must be imminent and positively strong to palpably show the wrongful intent to cause injury. Mere intimidating attitude is not sufficient. thus, barging on the door of the accused with shouts of threats to kill can not be considered Unlawful Aggression. (People vs. Trison, G.R. No. 106345-46, September 16, 1996) Likewise, if the accused agrees to fight, Unlawful Aggression is wanting because by accepting the challenge and immediately approaching the victim, the accused places himself in an unlawful status and himself becomes an unlawful aggressor, as aggression as an incident of fight is bound to arise. (People vs. Galas,G.R. No. 114007,September 24, 1996) To give rise to self-defense, the aggression must not be a lawful one like the attack of a husband against a paramour of his wife whom he surprised in an uncompromising situation, or a chief of police who threw stones at the

accused who was running away to elude arrest for a crime committed in his presence. Their aggression was not considered unlawful. Unlawful Aggression contemplates an actual, sudden and unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude but when its author does not persist anymore in his purpose or when he discontinues his attitude to the extent that the object of his attack is no longer in peril, it ceases to be an unlawful aggression and does not warrant selfdefense. (People vs. Geneblazo,361 SCRA 573) The second element is Reasonable Necessity of the Means Employed to prevent or repel it. There must be a reasonable necessity of the course taken, and reasonable necessity of the means used. In People vs. Jaurigue, 76 Phil. 174, while it was ruled that when the deceased placed his hand on the upper thigh of the lady accused, there was unlawful aggression but when the latter immediately stabbed him with a knife killing him, there was no reasonable necessity of her course of action since in the chapel where the killing took place, there were many people including her father, it was well lighted and there is no possibility of her being raped. Consequently, she was convicted. When the deceased laid down his gun, unlawful aggression had already ceased and it was no longer necessary for accused-appellant to have fired successfully the way he did at the victim. (People vs. Rabanal, 387 SCRA 685) The means employed by the person making a defense must be rationally necessary to prevent or repeal an unlawful aggression. What the law requires is a rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct more than the reason that moves or impels the defense. On the other hand, whether the means employed is reasonable or not depends upon the nature and quality of the weapon used by the aggressor, his physical condition, character and size, as well as of the person defending and the place and occasion of the assault. (See The Revised Penal Code Book 1 by Luis B. Reyes, 1993 Ed., p. 176) Self-defense and accidental shooting cannot be both be raised by the accused as a defense. If accused is acting in self-defense, that he could only have deliberately used the gun to repel the alleged aggression. On the other hand, if the shooting was accidental, then it was immaterial whether the accused employed reasonable means to repel the alleged aggression. (People vs. Florague, 360 SCRA 587) The third element – Lack of Sufficient Provocation on the part of the person defending himself – pictures a situation where there was total lack of provocation on the part of the accused when he was attacked without any reason at all, or when the accused gave provocation but is not sufficient for the offended party to assault him, or where provocation is sufficient but is not immediate to the act (U.S. vs. Laurel, 22 Phil. 252) or where the sufficient provocation was given by the companion of the accused of which the latter had no part. Under the principle of Battered-Woman Syndrome, while there was an inkling that this syndrome could be considered as a viable plea within the concept of self-defense (People vs.Genosa,341 SCRA), the Supreme Court in

an en banc decision has ruled that the same can not be considered a form of self-defense. It would only imagine the woman accused liability. However, in Sec. 26 of R.A. No. 9262, it is provided that victimsurvivors of Battered Woman Syndrome do not incur any criminal and civil liabilities despite the absence of the elements of self-defense provided for in the Revised Penal Code. In effect, the same has effectively amended par. 1 of Art. 11 of the Revised Penal Code.

2. Defense of Relatives The law speaks only of spouse; ascendants, meaning parents, grandparents, great grandparents, etc.; descendants, meaning children, grandchildren, great grandchildren, etc.; brothers and sisters; relatives by affinity in the same degrees, that is, parents-in-law, children-in-law, and brothers or sisters-in-law as relatives. Outside of these people, the persons are considered, in criminal law, as strangers. There are three (3) requisites – first is unlawful aggression, second is reasonable necessity of the means employed to prevent or repel it, and third is that the relative being defended gave no provocation. Anent the third requisite however, the law gives a leeway – that is, even if the relative being defended gave the provocation, if the relative making the defense had no part therein, he can successfully invoke defense of relative.

3. Defense of Stranger Outside of himself, and those relatives mentioned in Art. 11, par. 2, any person who acts in defense of the person or rights of another can legitimately claim the defense of stranger. The first two (2) requisites however, that is, unlawful aggression, and reasonable necessity of the means employed to prevent or repel it, must be present. The law adds another requisite, which is, that the person is defending be not induced by revenge, resentment or other evil motive. Thus, one who, seeing his seventy-eight (78)-year-old neighbor held down on the ground by a strong and robust young man and in serious danger of being throttled, furnished the person assaulted with a gaff, as he himself is also old and may not be able to cope with the assailant, with which his neighbor used to inflict a mortal wound on the assailant is entitled to the claim of defense of strangers. (U.S. vs. Subingsubing, 31 Phil. 376)

4. Avoidance of Greater Evil or Injury/State of Necessity The fourth justifying circumstance speaks of a person who, in order to avoid an evil or injury, does a act which causes damage to another. The following however must be present: first, that the evil sought to be avoided actually exists, second, that the injury feared be greater than that done to avoid it, and third, that there be no other practical and less harmful means of preventing it. (Art. 11, par. 4)

The doctor who had to kill a foetus to save the mother where both could not be saved, and he is running out of time, may invoke this defense. This is different however from Euthanasia – the so-called mercy-killing which is not justified in our jusrisdiction. A captain of a ship caught by storm and huge waves in his journey, who ordered the jettison of cargoes against the will of the owners to prevent the ship from sinking and save the passengers, can shield criminal liability behind this provision. 5. Fulfillment of Duty or Exercise of Right or Office The fifth justifying circumstances provides that no criminal liability shall be incurred by any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. Thus, a policeman who killed an escaping prisoner after making the warning shot and shouting to him not to continue with his escape, and who prior to that even attacked him with a spear, acted in lawful fulfillment of duty. A person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. But we must that there are two (2) requisites for this justifying circumstance: (a) that the offender acted in the performance of a duty or in lawful exercise of a right, and (b) that the injury or offense committed be the necessary consequence of the due performance of such right or office. (People vs.Belbes, 334 SCRA 161) So also, if A hit B with his fist inside a running passenger jeep because B was snatching his (A’s) watch, and as a consequence B fell from the jeep, hi head hitting the hard pavement causing his death, A acted in the lawful exercise of right. And the executioner of convicts sentenced to die, who would make the lethal injection in the Bureau of Corrections on the day and time scheduled by the Court, does so in the lawful exercise of an office. 6. Obedience to an Order of a Superior It is also a justified act if a person acts in obedience to an order issued by a superior for some lawful purpose. (Art. 11, par. 6) This justifying circumstance needs an order issued by a superior officer of the accused which was for a lawful purpose and the latter obeyed the order. Where the order of arrest was issued by his superior for the purpose of delivering the person’s subject of the order to the commanding officer who made the request that they be apprehended and arrested for a crime they committed but because they resisted arrest, the accused killed them, this justifying circumstance is applicable. The order however of guerilla officer for the killing of a civilian is not lawful.

EXEMPTING CIRCUMSTANCES Article 12 enumerates persons who are exempted from criminal liability. Unlike in justifying circumstances, here there was a crime committed, there is a criminal but for reasons of public policy, no penal liability shall be inflicted on him.

The following are exempt from criminal liability: 1. An Imbecile or an Insane Person Unless the Latter has Acted During a Lucid Interval. In the eyes of the law, insanity exists when there is a complete deprivation of intelligence in committing the act. Mere abnormality of the mental faculties will not exclude imputability. The accused must be “so insane as to be incapable of entertaining a criminal intent.” He must be deprived of reason and act without the least discernment because there is a complete absence of the power to discern or a total deprivation of the freedom of the will. Since the presumption is always in favor of sanity, he who invokes insanity as an exempting circumstance must prove it by clear and positive evidence. And the evidence on this point must refer to the time preceding the act under prosecution or to the very moment of its execution. (See People vs. Estrada, 333 SCRA 699; also People vs. Valledor, 383 SCRA 653) An imbecile is a person marked by a mental deficiency while an insane person is one who has unsound mind or who suffers from mental disorder. An insane person may have suffered from mental disorder. An insane person may have lucid intervals but an imbecile has none. (People vs. Ambal, 100 SCRA 325, citing 1 Viada, Codigo Penal, 4th. Ed.) Imbecility is defined as a feeble-mindedness or a mental condition approaching that of one who is insane. It is analogous to childishness and dotage. An imbecile within the meaning of Article 12 is one completely deprived of reason or discernment and freedom of will at the time of committing the crime. While advanced in age, he has a mental development of children between two (2) and seven (7) years of age. The reasoning of the accused that he resorted to cutting grass instead of guarding his victim could hardly be indicative of imbecility. Rather, it may be considered negligence. (People vs. Nunez, G.R. No. 412429-30, July 23, 1947) In People vs. Dungo, 199 SCRA 860, it was held that one who suffers from insanity at the time of the commission of the offense can not in a legal sense entertain a criminal intent and cannot be held criminally responsible for his acts. In People vs. Formigones, 87 Phil 658, the ruling was that, in order that a person could be regarded as an imbecile within the meaning of Art. 12 of the RPC so as to be exempt from criminal liability, he must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime. Any deprivation therefore of reason or discernment at the time of the trial of the case is not an exempting circumstance.

2. A Person Fifteen Years of Age and Below. (R.A. No. 9344)

3. A Person Over Fifteen (15) above and under eighteen (18) Unless He Has Acted with Discernment (R.A. No. 9344)

It is clear therefore that even if a person has acted with discernment, if he is under fifteen (15) years of age, he is free from penal responsibility. On the other hand, if he is over fifteen (15) years of age but under eighteen (18), he will be held criminally liable if he acted with discernment. An accused who knows the morality of his acts, or can fully appreciate the consequences of his actuation has acted with discernment which can be shown by the manner the crime was committed or his conduct after its commission. 4. Any Person Who, While Performing a Lawful Act With Due Care, Causes an Injury by Mere Accident Without Fault or Intention of Causing It. So, one driving car duly licensed to do so, in the proper lane and within the limits prescribed by law, who hits a boy who suddenly darted into the street is exempted from criminal liability due to accident. Problem: A, armed with a .38 caliber and B, who has no weapon, robbed a store; but in the course thereof, were seen by P, a policeman who was armed with .45 caliber gun, and when he demanded for the surrender of A and B, A shot him but missed, and so P repelled the attack. In the exchange of shots, A was killed, together with B, and C the owner of the store. The three were killed by the bullets fired from a .45 caliber. In such case, P is not liable for the death of A due to self-defense as all the three (3) elements were present. He is also not liable for the death of B, not because of self-defense because the latter being weaponless can not commit unlawful aggression, but because of performance of duty. For the death of C, the store owner, P, is also not criminally liable obviously not because of self-defense nor of fulfillment of duty but because of accident provided for in par. 1 of Art. 12. 5. Any Person Who Acts Under the Compulsion of an Irresistible Force. Thus, a person who was compelled to bury the body of one who was murdered by the killers, striking him with the butts of their guns, threatening to kill him too, is not criminally liable as an accessory. 6. Any Person Who Acts Under the Impulse of an Uncontrollable Fear of an Equal or Greater Injury. If A with a revolver in his hand threw a knife at B, and ordered him to kill C, a person sleeping nearby otherwise he will shoot B, the latter can ask exemption from criminal liability if he stabbed C to death.

7. Any Person Who Fails to Perform an Act Required by Law When Prevented by Some Lawful or Insuperable Cause. A policeman who arrested a man who had just killed another in his (policeman’s) presence, at 6:00 p.m. of a Saturday in a small town in the province, is not liable under Article 125 of the RPC when he filed the criminal complaint only in the morning of the following Monday [more than thirty-six (36) hours as required by the said Article] since there was

no court where to file the complaint. He was prevented by a lawful or insuperable cause to comply with the requirement of the law.

Absolutory Causes Absolutory causes are those where the actors are granted freedom from charge or immunity from burden for reasons of public policy and sentiment even if their acts constitute a crime. They are: 1. Accessories with respect to spouse, ascendants, descendants, brothers, sisters or relatives by affinity within the same degrees except those falling under par.1 of Art. 19. (Art. 20, RPC) 2. Spouse or parents who inflicted Less Serious or Slight Physical Injuries on his/her spouse or their daughters living with them, whom they surprised in the act of sexual intercourse with another. (Art. 247, RPC) 3. Any person who entered another’s dwelling to prevent serious harm to himself, the occupants of the dwelling or a third person or rendered some service to humanity or justice, or entered cafes, taverns, inns and other public houses while the same were open. (Art. 280, par. 3) 4. In case of theft, swindling or malicious mischief committed or caused mutually by spouses, ascendants and descendants or relatives by affinity in the same line, and brothers and sisters and brothers-in-law and sisters-in-law if living together. (Art. 332) 5. Instigation, where the actor otherwise innocent, was induced by a public officer to commit the crime such that the latter himself becomes a principal by inducement or by indispensable cooperation.

[NOTE: Entrapment however is not an absolutory cause. In Entrapment, ways and means are resorted to by the authorities to trap and capture the actor, already a law-breaker, in the execution of his criminal activities. Buy-bust operation is a form of entrapment and the accused entrapped is liable. (People vs. Juma, 220 SCRA 432; People vs. Nicolas, et. al., G.R. No. 110116, February 1, 1995)

MITIGATING CIRCUMSTANCES Mitigating circumstances are those which do not entirely free the actor from penal responsibility but serve only to lessen or reduce the penalty imposable. They are two (2) classes – Ordinary Mitigating which can be offset by aggravating circumstances, and which if present tends to reduce the penalty by periods, and Privileged Mitigating which can not be offset by any aggravating circumstance, and which if present tends to reduce the penalty by degrees.

The following are mitigating circumstances: 1. Incomplete justifying and incomplete exempting circumstances. 2. When the offender is under eighteen (18) years or over seventy (70) years of age. 3. When the offender had no intention to commit so grave a wrong as that committed. 4. When there was sufficient provocation or threat on the part of the offended party that immediately preceded the act. 5. When the act was committed in the immediate vindication of a grave offense to the person committing the felony, his spouse, ascendants, descendants, brothers or sisters or relatives by affinity within the same degrees. 6. When the accused acted upon an impulse so powerful as naturally to have produced passion or obfuscation. 7. Voluntary surrender to person in authority or his agents by the accused, or if he voluntarily confessed his guilt before the court prior to prosecution’s presentation of evidence. 8. If the offender is deaf and dumb, blind in two eyes, or otherwise suffering from physical defect which restricts his means of action, defense or communication with his fellow beings. 9. Such illness on the part of the offender as would diminish the exercise of his will power without depriving him of the consciousness of his acts. 10. Any other circumstances of a similar nature or analogous to those above-mentioned.

1. Incomplete Justifying and Incomplete Exempting Circumstances In incomplete self-defense, incomplete self-defense of relative and incomplete self-defense of stranger, the element Unlawful Aggression on the part of the victim is an indispensable requisite. It is the second (2nd) or the third (3rd) element that is lacking, otherwise there is no incomplete justification as a mitigating circumstance under par.1 of Art. 13. An illustration of incomplete exempting circumstances of uncontrollable fear is one where the accused, while sleeping, was awakened by a shot, and because he was expecting an attack by a group of armed men, shot a man he saw in the dark who turned out to be unarmed innocent person. (People vs. Magpantay, C.A. 46 O.G. 1655) He acted under an impulse of a fear which is not uncontrollable although it promised an equal or greater injury

2. Under eighteen (18) or over seventy (70) Years Old For purposes of criminal liability, the age of a person may be divided as follows: 1. nine (9) years or below – exempted from penal responsibility; 2. over nine (9) and below fifteen (15) – conditional – liability – that is, if he acted without discernment, he is exempted. 3.

over nine (9) and below fifteen (15) acting with discernment – mitigated liability at least by two (2) degrees lower. (Art. 68, par.1)

4. over fifteen (15) but below eighteen (18) years of age – mitigated liability by one degree lower. (Art. 68, par.2) 5. over eighteen (18) and below seventy (70) years of age – complete criminal liability. 6. over seventy (70) years of age – mitigated liability.

3. Lack of Intent to Commit so Grave a Wrong Intention partakes of the nature of a mental process, an internal act. It can be gathered from and determined by the conduct and external acts of the offender and the results of the act themselves. So, the accused who was charged with Rape with Homicide, and who admitted that “My only intention was to abuse her, but when she tried to shout I covered her mouth and choked her, and later I found that because of that she died,” is not entitled to this mitigating circumstance, for he knew that the girl was very tender in age [six (6) years old], weak in body, helpless and defenseless and he ought to know the natural and inevitable result of the act of strangulation. (People vs. Yu, 1 SCRA 199) A husband who slaps his wife who fell down her head hitting a hard pavement and died as a result can avail of this mitigating circumstance. But this attenuating circumstance is not applicable in case of several accused where conspiracy was proven for in conspiracy the act of one is the act of all. (People vs. Bautista, 38 SCRA 184) 4. Sufficient Provocation or Threat The sufficient provocation or threat on the part of the victim must immediately precede the act of the offender. A killed his father-in-law who warned him to be careful because he would kill him before the end of the day, after he told said father-in-law that he can not live anymore with his adulterous wife, the daughter of the deceased, whom he caught in flagrante with her paramour. He is entitled to this mitigating circumstance. (People vs. Rivero, 242 SCRA 354) He could have interpreted this warning as a serious threat which prompted him to decide to eliminate his fatherin-law before he could carry out such threat.

5. Immediate Vindication of a Grave Offense The word “immediate” in par. 5 is not an accurate translation of the Spanish text which uses the term “proxima” and somehow a lapse of time is allowed between the grave offense and the vindication unlike in provocation or threat (par. 4) that should immediately precede the act. Thus, in People vs. Parama, 64 Phil. 331, where it was after a few hours from the time he was slapped by the deceased in the presence of many people, when he killed said deceased, the Supreme Court considered this mitigating circumstance in favor since the influence of said offense ”by reason of its gravity and circumstances under which it was inflicted, lasted until the moment the crime was committed.” However, in People vs. Pajares, 210 SCRA 237, where the brother of the accused was mauled by the victim’s companion and the victim himself ten (10) hours earlier, the accused who killed the deceased was adjudged not entitled to the benefits of this circumstance since such interval of time it was more than sufficient to enable him to recover his serenity. It would seem that the rule is that, the court must consider the lasting effect and influence of the grave offense to the offender when he resorted to commit the crime to vindicate such grave offense. 6. Passion or Obfuscation To be considered mitigating, the same must arise from lawful sentiments provoked by prior to unjust or improper acts of the offended party. While watching a TV show, the ballcaster of the swivel chair on which the accused was seated broke and got detached, and so he called F, his stepson, to buy one but because it took time for the latter to awaken, accused started shouting bad words to F who finally got up, got dressed and went to the comfort room to brush his teeth. This further angered the accused who boxed him (F), and when F got out of the house, accused followed him, and because he could not see F at once, he shot him when finally he saw him returning to the house. Held: No mitigating circumstance of passion or obfuscation as the anger of the accused did not arise from lawful sentiments. The delay in obeying his request to buy the ballcaster is too trivial a matter as to fairly and justly cause such overreaction on his part. (People vs. Tiongco, 236 SCRA 458) 7. Voluntary Surrender and Plea of Guilty Accused who went into hiding for two and a half (2 ½) years after killing the victim cannot claim this mitigating circumstance for in order that voluntary surrender may be appreciated, it is necessary that the same be spontaneous in such manner that it shows the intent to surrender unconditionally to the authorities, either because he acknowledges his guilt or because he wisher to save them the trouble and expense necessarily incurred in his search and capture. (People vs. Ablao, 183 SCRA 658, citing People vs. Lingatong, G.R. No. L-34019, January 29, 1990)

So also, it must be surrender of the body of the accused to persons in authority or their agents. So the surrender of his gun, not himself, by handing over the weapon through the balustrade of the faculty room, and the surrender being made to his brother who was not a person in authority nor an agent can not be considered an attenuating circumstance. He holed in the faculty room, in effect holding some teachers and students as hostages, as the faculty room was surrounded by soldiers and there was no escape open to him. (People vs. Tac-an, 182 SCRA 601) Voluntary surrender requires that the offender had not been actually arrested; that he surrendered himself to a person in authority or to the latter’s agent; and that the surrender was voluntary. (People vs. Callet, 382 SCRA 43) For surrender to be voluntary, it must be spontaneous and show the intent of the accused to submit himself unconditionally to the authorities either because (1) he acknowledges his guilt or (2) he wishes to save them the trouble and expense incidental to his search and capture. (People vs. Zeta, 382 SCRA 141) 8. Spontaneous Plea of Guilty To be appreciated as an attenuating circumstance, the plea of guilty must be made before the prosecution presents its evidence, and it must be an unconditional plea. (People vs. Serafica, 27 SCRA 123) However, if it is a plea to a lesser offense – let us say, where the charge is murder and the offer is a plea of guilty to Homicide, and the court allows the prosecution to present evidence to prove the qualifying circumstance, and fails to establish the aggravating circumstance that would qualify the killing to murder, the accused is entitled to this mitigating circumstance. The forum however must be the court that has jurisdiction over the offense. 9. Illness Which Restricts Means of Action The law says that the offender is deaf and dumb meaning not only deaf but also dumb, or that he is blind, meaning blind in both eyes, but even if he is only deaf and not dumb, or dumb only but not deaf, or blind only in one eye, he still entitled to a mitigating circumstance under this article as long as his physical defects restrict his means of action, defense or communication with his fellowmen. The restriction however must relate to the mode of committing the crime. Thus, even if he is armless or somehow limping because he was a polio victim in his younger days, if the charge is libel or oral defamation, his illness does not give him the privilege to mitigate his criminal liability for the said crime 10. Illness Diminishing Will Power If the illness not only diminishes the exercise of offender’s will power but deprives him of the consciousness of his acts, it becomes an exempting circumstance to be classified as insanity or imbecility. Feeblemindedness of the accused who, in a fit of jealousy, stabbed his wife, then carried her up to the house, laid her on the floor and then lay down beside her, warrants the finding in his favor of this mitigating circumstance. (People vs. Formigones, 87 Phil. 658)

11. Mitigating Circumstance of Similar Nature Return of the property stolen in analogous to voluntary surrender, testifying for the prosecution by a co-accused divulging the truth of what really transpired is akin to plea of guilty; esprit de corps is similar to passion or obfuscation; over sixty (60) years old with failing sight is analogous to over seventy (70). (See The Revised Penal Code by Reyes 1993 Ed., pp. 312-314, citing People vs. Villamora, 86 Phil. 287; People vs. Navasca, 76 SCRA 72)

AGGRAVATING CIRCUMSTANCES Those which if present in the commission of the crime serve to increase the penalty imposable, without however exceeding the maximum period prescribed for the offense. Kinds of Aggravating Circumstances

A. Specific

- those that apply only to some particular crimes like disregard of respect due the offended party on account of rank, sex or age which are applicable only to crimes against persons or honor. Ignominy which applies only to crimes against chastity; cruelty which applies only to crimes against person.

B. Generic

- those which generally, can be applied to all offenses like dwelling, recidivism, in consideration of price, reward or promise.

C. Inherent

- those which necessarily accompany or inhere in the commission of the crime like evident premeditation in theft or robbery.

D. Qualifying

- those which if attendant, alter or change the nature of the crime necessarily increasing the penalty, such as by means of poison, with aid of armed men in killing persons or grave abuse of confidence which makes stealing one of qualified theft. These circumstance however must be alleged in the information to make them qualifying.

The aggravating circumstances are as follow (Art. 14); 1. That advantage be taken by the offender of his public position. (Art. 14 par. 1) Under Sec. 23,1(a) of R.A. No. 7659, when in the commission of the crime advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless mitigating circumstances.

It would seem that when this aggravating circumstance is present in the commission of heinous crimes, it can not offset by any mitigating circumstance. For this circumstance to be appreciated as aggravating the accused must be a public official who used his influence, prestige and ascendancy which his office gives him in realizing his purpose. If the accused could have perpetrated the crime without occupying his position, then there is no abuse of public position. Since no evidence was adduced to prove that the killing was in any way facilitated by the public position of the accused, in fact, it was not even shown whether the accused wore his uniform or use his service firearm, this aggravating circumstance is not present. (People vs. Sumaoy,263 SCRA 460) However, in People vs. Madrid, 88 Phil 1, this circumstance was considered against the accused, a law officer, as he committed the crime (Robbery with Homicide) with the aid of a gun which he had been authorized to carry as a peace officer, and he succeeded in going through the check point unmolested and unsuspected because of his official position. Where the public position in an element of the offense like Bribery (Direct – Article 210, Indirect – 211, or Qualified Bribery – Sec. 4, R.A. No. 7659), this circumstance can not be taken into consideration.

2. That the crime be committed in contempt of or with insult to public authorities. (par. 2)] Public authorities are public officers directly vested with jurisdiction and who have the power to govern and execute the laws. They are also called persons in authority. So that if X, despite his knowledge of the presence of the Mayor or Governor or a Judge, who made known of his presence to him, still continued to assault his opponent, this circumstance must be taken against him. If it were however, a policeman or an NBI agent, this aggravating circumstance can not be considered, as a policeman or an NBI agent is a mere agent of a person in authority. The public authority however must be engaged in the exercise of his duties, must not be the person against whom the crime is committed, and the offender must know that he is a person in authority 3. That the act be committed (a) with insult or in disregard of the respect due the offended party on account of his rank, age or sex, or that (b) it be committed in the dwelling of the offended party if the latter has not given any provocation. (par. 3) a. Insult or Disregard of Rank, Age or Sex Considering the fact that the deceased, Silvina Cuyos, was already sixty (60) years old at the time she was killed by the accused who was then only twenty-three (23) years old, whom witnesses saw as if wrestling with the said deceased who sustained fatal injuries at the neck, there is disregard of the respect due the offended party on account of her age. (People vs. Rubio, 257 SCRA 528) A clerk in the Cash Section of the Civil Service Commission who attacked the Assistant Chief of the Personnel Division of the said

government office has committed a crime aggravated by disrespect due the offended party on account of his rank. (People vs. Benito, 74 SCRA 271) Where the accused took turns in hitting the victim, a seventy (70)-year old woman, with pieces of wood they brought in going to the house of the said victim, the circumstance of disregard of the respect due the offended party on account of her sex and age is present. (People vs. Lapaz, 171 SCRA 539) NOTE: While nighttime is absorbed in treachery, the aggravating circumstances of disregard of sex and age can not be similarly absorbed, as Treachery refers to the manner of commission of the crime, while the latter pertains to the relationship of the victim with the offender. (Ibid.) It would seem that for this circumstance to be taken against the accused, there must be a showing of insult or disregard of the age, sex or rank of the offended party. b. Dwelling It must be taken note of, that dwelling is a building or structure exclusively used and devoted for rest and comfort, and it includes every dependency of the house which forms an integral part thereof. It may mean only the room of the bedspacer in a boarding house. Thus, the crime of Rape against the offended party who was renting a bedspace in a boarding house is aggravated by dwelling. (People vs. Daniel, 86 SCRA 511) Dwelling includes every dependency of the house that forms an integral part thereof including staircase of the house, and much more its terrace. (People vs. Rios, G.R. No. 132622, June19, 2000) In People vs. Perreraz, 362 SCRA 202, it was ruled: He who goes to another’s house to hurt him or do wrong is more guilty than he who offends him elsewhere. For the circumstance of dwelling 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 who gave no provocation was attacked inside his own house, as the assailant might have devised means to perpetrate the assault from the outside. Where the complainant was forcibly taken from her house, brought to a nearby Barangay where she was raped, dwelling is an aggravating circumstance. (People vs. Lacanieta, 330 SCRA 519) To consider it however, as an aggravating circumstance, the victim must not have given the provocation. However, even if the attacker was outside the house, and the victim was inside his dwelling when he was fired upon, as long as the latter had not provoked the offender, there is dwelling as an aggravating circumstance. So also, if the assault was commenced inside the dwelling and terminated outside the same, dwelling can be considered. The victim should be the owner, occupant or lessee of the house. However, in People vs. Balansi, 187 SCRA 566, it was held that the victim need not be the owner or occupant of the dwelling where he was shot, since “the stranger, as an invited guest, is sheltered by the same

roof and protected by the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment, home to him.”

4. That the act be committed with abuse of confidence or obvious ungratefulness. (par. 4) Where the accused is the uncle of the victim and who had taken shelter in the house of the victim’s parents, the rape that he committed against his niece is attended with Abuse of Confidence and Obvious Ungratefulness. (People vs. Cabresas, 244 SCRA 362) 5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where authorities are engaged in the discharge of their duties or in place dedicated to religious worship. (par. 5) To consider the palace of the President, or a place dedicated to religious worship, the accused must have the intention to commit the crime in such place so that if the meeting of the offender and the victim was only casual, this circumstance cannot be considered. In a place where authorities are engaged in the discharge of their duties, it is necessary that actual fulfillment of functions be going on, so that if the Judge declared a recess, and during such recess a crime was committed in his courtroom, this circumstance is not presence. However, if it is a place dedicated to religious worship, any offence committed thereat even if no ceremony is taking place, is aggravated by this circumstance.

6. That the crime be committed in the nighttime or in an uninhabited place, or a band whenever such circumstances may facilitate the commission of the offense. Night has been defined as a period of time from sunset to sunrise. (Art. 13, Civil Code) Viada poetically defines it as the beginning of dusk to the end of dawn. (See The Revised Penal Code by Reyes, p. 356) It is not however the period or the time that is material. It is more of the darkness or nocturnity that enshrouds the situation. Thus, if at 10:30 p.m. a killing occurred in a dance party where the place was bright or keenly illuminated, there is no nighttime to speak of. And even if it was really dark, for nocturnity to be considered as an aggravating circumstance, it must have been particularly sought for by the accused, or taken advantage of by him to facilitate the commission of the crime or to ensure his impunity from capture or otherwise to facilitate his gateway. (People vs. Pareja, 265 SCRA 429) So also if the criminal act was commenced while the atmosphere or environment was still bright, and terminated when it was already dark, this aggravating circumstance is not present. Contrariwise, if the offender began to perpetrate the crime while it was still dark, but finished it already at daybreak where the place is already bright, there is likewise no nighttime as an aggravating circumstance. In the case of Forcible Abduction with Rape which was committed at 2:00 a.m., it was held that the aggravating circumstance of nighttime should be considered. (People vs. Grefiel, 215 SCRA 596)

In People vs. Cabangcala, 362 SCRA 361, it was ruled that for nighttime to be appreciated as an aggravating circumstance, the Court must convinced that the cover of darkness was purposely sought for the purpose of ensuring the consummation of the crime, or where the accused took advantage of the blankness of the night. There is a band whenever more than three (3) armed malefactors shall have acted together in the commission of the offense. (People vs. Landicho, 258 SCRA 1) Thus, at least four (4) must be the number (People vs. Polones, 230 SCRA 279) and they must be armed although the arms need not to be limited to firearms. When the two (2) groups are almost similarly armed, like where the group of the offended party numbered five (5) but only three (3) were armed so that there is no band, while the offenders were four (4) who were all armed and therefore constituted a band, there is no band as aggravating circumstance as it did not facilitate the commission of the crime. Likewise, if the meeting is casual, the homicide committed by the killers comprising a band is not aggravated. The uninhabitedness of a place is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place of the commission, there was reasonable impossibility of the victim receiving some help. Considering that the killing was done during nighttime and many fruit trees and shrubs obstructed the view of neighbors and passersby, there was no reasonable impossibility for the victim to receive any assistance. (People vs. Desalisa, 229 SCRA 35) 7. That the crime be committed on the occasion of conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. If the crime coincidentally took place during the occasion of the misfortune or calamity, this aggravating circumstance is not present because the offender did not take advantage of the situation. It must be noted that the reason behind 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 suffering by taking advantage of their misfortune to despoil them. (U.S. vs. Rodriguez, 19 Phil. 150) 8. That the crime be committed with the aid of armed men or persons who insure or afford impunity. The law uses the words “men” and “persons” – meaning in the plural form and so at least two (2) persons are involved. If the accused relied on the presence of armed men, availing himself of the aid of the latter, his liability is aggravated. However, where it appeared that appellants were not merely present at the scene of the crime but were in conspiracy with the assailant, shooting the victim and leaving the scene together after apparently accomplishing their purpose clearly evincing conspiracy, this circumstance can not be appreciated. (People vs. Umbrero, 196 SCRA 821) If accused, upon assurance of policemen A and B that they would not patrol the area so that he could commit theft or robbery thereat, the commission of burglary in the said area where no routine patrolling was done is aggravated by the aid of persons who insure or afford impunity.

9. That the accused is a recidivist. The law defines recidivist as 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. Where accused was convicted of Homicide on September 15, 1983 and there being no appeal, judgment became final on October 1, 1983 and the second conviction was rendered on October 26, 1983 for murder, he is a recidivist. (People vs. Lagarto, 196 SCRA 611) If accused committed Theft on June 1, 1990 and Robbery on July 1, 1990 but after his apprehension, the trial for the two (2) crimes were consolidated in one hearing as there was only one victim, and thereafter the court rendered a Joint Decision finding him guilty of both offenses, there is no recidivism as there was no previous final judgment of conviction. While he was convicted of Theft committed on June 1, 1990 when the same was promulgated, there was no prior or previous final judgment. His conviction for Theft was not yet final. Another requisite is that the crimes involved must be embraced in the same title under the Revised Penal Code; so that if the previous conviction is for Homicide and when it was already final there is a subsequent conviction for Rape – recidivism exist as Rape is now a crime against persons. (R.A. No. 8353)

10. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two (2) or more crimes to which it attaches a lighter penalty. The crimes should not be embraced in the same title of the Code for accused will then be classified as a recidivist. Thus, if A has been convicted of Murder, and after grant of parole committed Homicide, he labors under this paragraph (10) known as reiteracion, but he is also suffering from recidivism (reincidencia). In such a case, he will be considered only as recidivist, and par. 10 will no longer apply to him. The previous crimes for which accused underwent punishment must be at least two (2) in number if the law imposes a penalty lower than the crime he had been currently convicted; but if the penalty is equal or greater, a single offense is sufficient. Thus, if A had been punished for Slight Physical Injuries in 1985 and then underwent punishment again for Perjury in 1986, and later on committed Rape, his liability for the last offense will be aggravated by reiteracion. On the other hand, if the previous conviction is Homicide, and later on the conviction is for Falsification (lighter than Homicide), reinteracion is also present. 11. That the crime be committed in consideration of a price reward or promise. To consider this circumstance, the price, reward or promise must be the primary reason or the primordial motive for the commission of the crime. Thus, if A approached B and told the latter what he thought of X, and B answered “he is a bad man” to which A retorted. “you see I am going to kill him this afternoon,” and so B told him “If you do that, I’ll give you five thousand (P5,000.00)” and after killing X, A again approached B, told him he had already killed X, and B, in compliance with his promise, delivered the five thousand (P5,000.00), this aggravating circumstance is not present.

Whenever present however, this aggravating circumstance affects not only the accused who perpetrate the crime because of the money or consideration but also the accused who offered, as the former becomes a principal by direct participation while the latter, a principal by inducement. (People vs. Gerolaga, 263 SCRA 143) Mere promise, as long as it is the reason why the offense was done, is sufficient. 12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or intentional damage thereto, derailment of a locomotive or by the use of any other artifice involving great waste and ruin. The purpose in employing the means – that is, inundation fire, poison, etc., must be to kill the offended party to consider it as aggravating. Thus, where the purpose of the offenders in putting in flames the polo shirt of the victim was for further merriment because the victim continued to dance even while his clothes were on fire, to the delight of the crowd, there is no aggravating circumstance of by means of fire, as obviously the objective of using fire to kill the victim is not present. Under R.A. No. 8294 which amends P.D. No. 1866, when a person commits any crime under the Revised Penal Code or special laws with the use of explosives including but not limited to pillbox, Molotov cocktail bombs, detonation agents or incendiary devices resulting in the death of a person, the same is aggravating. (Sec.2) 13. That the act be committed with evident premeditation. The following requisites must be proved before this circumstance may be appreciated: (1) the time when the accused determined to commit the crime; (2) an act or acts manifestly indicating that the accused has clung to his determination, and (3) sufficient lapse of time between such determination and execution to allow him to reflect upon the consequences of his acts. So, where A and B had a fistic fight and A found himself at the receiving end despite his size and threatened to kill B shouting, after they separated “Hanggang bukas na lang ang buhay mo” and thereafter forgot everything but when he saw B in the afternoon of that day, he stabbed him, there is no lacking. However, if after making the threat A went to his friends borrowing firearm, and when nobody lent him, he brought a bolo, sharpened it the whole morning of the following day and looked for B whom he killed with the said bolo, evident premeditation shall be taken against him. In People vs. Mojica, 10 SCRA 515, the lapse of one (1) hour and forty-five (45) minutes (4:15 p.m. to 6 p.m.) was considered by the Supreme Court as sufficient. In People vs. Cabodoc, 263 SCRA 187, where at 1:00 p.m., the accused opened his balisong and uttered “I will kill him (referring to the victim),” and at 4:30 p.m. of the said date accused stabbed the victim, it was held that the lapse of three and a half hours (3 ½ hours) from the inception of the plan to the execution of the crime satisfied the last requisite of evident premeditation. Where it appears that after the fight was broken up, the accused returned to kill the victim after four (4) hours, it can not be deduced with

certainly that he clung to his decision to kill the victim. There is no evident premeditation. (People vs. Nell, et al., G.R. No. 109660, July 1, 1997) Evident premeditation while inherent in crimes against property, may be considered in robbery with homicide if there is premeditation to kill besides stealing. So also, where treachery obtains in this special complex crime, such treachery is to be regarded as a generic aggravating circumstance although it will not qualify the killing to murder, robbery with homicide being a case of a composite crime with its own definition and special penalty in the Revised Penal Code. (People vs. Cando, 344 SCRA 331) 14. That craft, fraud or disguise be employed. Craft is present since the accused and his cohorts pretended to be bonafide passengers of the jeep in order not to arouse suspicion; when once inside the jeep, they robbed the driver and other passengers. (People vs. Lee, 204 SCRA 900) However, in People vs. Aspile, 191 SCRA 530, appellants are ruled not to have employed craft since they had already boarded the vessel when they pretended to buy Tanduay Rum in exchange for the dried fish and chicken they were carrying. Even without such pretense, they could nonetheless have carried their unlawful scheme. While craft is a circumstance characterized by trickery or cunning resorted to by the accused (People vs. Barrios, 92 SCRA 195), fraud involves acts, or spoken or written words, by a party to misled another into believing a fact to be true when it is not so. (Antazo vs. People, 138 SCRA 292) Thus, where A, armed with a knife and ready to meet B, who was holding a lead pipe, told the latter that if he (B) would just drop his weapon their differences would be settled amicably him with his knife fraud is said to be present. There is only a hairline distinction between craft and fraud and the Supreme Court in various cases has used them interchangeably. Justice Luis Reyes in his book, The Revised Penal Code, Book 1, 1993 Ed., p. 399, has distinguished the two (2) terms, in that 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 victims constitutes craft. Disguise is the use of any devise or artifice by the accused to conceal his identity. Thus, where the accused wore masks to cover their faces, even if the masks subsequently fell down, thus paving the way for their identification, this aggravating circumstance is present as there could have been no other purpose but to conceal their identities. (People vs. Cotabato, 160 SCRA 98) If the offender put charcoal on his entire nakedbody, entered the house of his neighbors and raped her, the crime of rape is aggravated by this circumstance. But the accused must be able to hide his identity during the initial stage, if not all trough out, the commission of the crime and his identity must have been discovered only later on, to consider his aggravating circumstance. If despite the mask worn by the accused, or his putting of charcoal over his body, the offended party even before the initial stage knew him, he was not able to hide his identity and this circumstance can not be appreciated.

15. That advantage be taken of superior strength or means employed to weaken the defense. The accused who, with sand in his hand, threw the same into eyes of the offended party when they were about to strike each other causing momentary blindness on the part of the latter has employed means to weaken the defense. The fact however that there were two persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength. To take advantage of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked to defend himself. (People vs. Casingal, 243 SCRA 37) Where appellant’s group numbered more than five (5), two (2) of whom were armed with bladed weapons while the victim was unarmed surrounded by the group, with his hand held by at least one (1), and was stabbed fatally sustaining two (2) frontal wounds and other injuries, the crime is aggravated by abuse of superior strength in as much as no alevosia was proven as the appellant’s did not consciously adopt their mode of attack. (People vs. Daen, Jr., 244 SCRA 382) Had treachery or alevosia been proven, it would have absorbed abuse of superior strength. (People vs. Panganiban, 241 SCRA 91) The attack of the three (3) men all armed with bladed weapons against an unarmed woman whose body bore seventeen (17) stab wounds, clearly shows the presence of this circumstance. 16. That the act be committed with treachery. There is (alevosia) treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. For treachery to be present, two conditions must concur: (a) the employment of means of execution which would ensure the safety of the offender from defensive and retaliatory acts of the victim, giving said victim no opportunity to defend himself, and (b) the means, method and manner of execution were deliberately and consciously adopted by the offender. (People vs. Malabago, 265 SCRA 198) Where the accused, suddenly and without any warning, shot the deceased from behind knowing he was carrying a bolo, there is treachery. (People vs. Escander, 265 SCRA 444) Even if the attack is frontal, treachery may also be considered if the attack on the victim, although preceded by a warning “Tara Sergio,” was undoubtedly sudden and unexpected and prevented the unsuspecting victim, who had just stood up, from defending himself. (People vs. Estanislao, 265 SCRA 810) For treachery to be appreciated however, this circumstance must be present at the inception of the attack and if absent, and the attack is continues, treachery at a subsequent stage is not to be considered. (People vs. Escoto, 244 SCRA 382) However, if there is a break in the continuity of the aggression, it is

not necessary that treachery be present in the beginning of the assault; it is sufficient that when the fatal blow was inflicted, there was treachery. (U.S. vs. Balagtas, 19 Phil. 164) As a rule, a sudden attack by the assault, whether frontally or from behind, is treachery if such mode of attack was coolly and deliberately adopted by him with the purpose of depriving the victim of a chance to either fight of retreat. (People vs. Real, 242 SCRA 671) However, mere suddenness of the attack, or one made from behind, does not necessarily compel a finding of treachery for the essence of this circumstance lies in the adoption of ways and means that minimize or neutralize any resistance which may be put up by the offended party. (People vs. Gonzagan, Jr., 247 SCRA 220) 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act. Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime, so that killing a man in the presence of the wife does not constitute ignominy (U.S. vs. Abaigar, 2 Phil. 417) but raping her in the presence of the husband shows ignominy and aggravates the offense. Where before the victim, a landowner, was killed, he was made to kneel in front of his house helpers, this aggravating circumstance would be present. (U.S. vs. De Leon, 1 Phil. 163) When the victim was raped with the accused forcing her, using the same position as dogs do, that is, the dog-style position in the sexual act, the Rape is aggravated by ignominy. (People vs. Saylan, 130 SCRA 159) The original intent of the accused did not comprehend the commission of rape. Hence, the crime of Rape cannot be regarded as principal offense. But since it attended the commission of Robbery with Homicide, the Rape is deemed to aggravate the crime. Instead of ignominy, it is the Rape itself that aggravates the crime. (People vs. Aspile, 191 SCRA 530) There is likewise ignominy when the accused “plastered” with mud the vagina of the offended party right after raping her. (People vs. Fernandez, 183 SCRA 511) The ruling that if robbery with homicide was committed with additional killings and/or rape, the additional killings or the rape shall be considered aggravating circumstances has been rendered obsolete by the Supreme Court’s decision in People vs. Regala, 329 SCRA 709, holding that there is no law providing that additional rape/s homicide/s committed on the occasion of robbery should be considered as aggravating circumstance. A penal law is liberally construed in favor of the offender and no person should be brought within its terms if it is not clearly made so by the statute. In People vs. Gano, 353 SCRA 126, the Supreme Court citing the Regala case held: It should be noted that there is no law providing that additional rape/s or homicide/s should be considered as aggravating circumstance. The enumeration of aggravating circumstances under Article 14 of the Revised Penal Code is exclusive as opposed to the enumeration in Article 13 of the same Code regarding mitigating circumstances where

there is specific paragraph (paragraph 10) providing for analogous circumstances. It is true that the additional rapes (or killings in the case of multiple homicide on the occasion of the robbery) would result in an “anomalous situation” where from the standpoint of the gravity of the offense, robbery with one rape would be on the same level as robbery with multiple rapes. However, the remedy lies with the legislature. A penal law is liberally construed in favor of the offender x x x.” 18. That the crime committed after an unlawful entry. In taking away certain valuable articles from the house, accused entered through the window. The crime committed is Robbery; but because this circumstance is not alleged in the information, the offence is classified as Theft. However, the crime is aggravated by Unlawful Entry. (People vs. Sunga, 43 Phil. 205) Since the accused entered the second-floor window of the residence of the accused, a way not intended for ingress, the crime of Robbery with Homicide is aggravated by Unlawful Entry. (People vs. Baello, 224 SCRA 218) Where the escaped was done through the window, the crime is not attended by this circumstance since there was no unlawful entry. 19. That as a means to the commission of a crime, a wall, roof, floor, door or window be broken. The breaking of the parts of the house must be made as a means to commit the offense. So., if A entered the door of his neighbor and after killing him, escaped by breaking the jalousies of the window or the door, this aggravating circumstance is absent. While that law uses the words “wall, roof, floor, door or window,” in one case, where accused entered a field tent cutting the ropes at the rear of the tent, and killed the victim soldiers sleeping thereat, the Supreme Court considered the crime of Murder, attended by the aggravating circumstance of forcible entry. 20. That the crime be committed with the aid of persons under fifteen (15) years of age, or by means of motor vehicles, airships or other similar means. The minors here could be accessories, accomplices or principals who aided the accused in the commission of the crime. Said minors could avail the exempting or mitigating circumstance due them on account of minority. The law intends to put a stop to the practice of professional criminals of employing people whom they know could be exempt from criminal liability or would not be fully punished under the law. The crime is aggravated by the use of motor vehicle where the accused deliberately availed themselves of a tricycle in order to consummate their dastardly act and to use it as a cover to facilitate the commission of Murder. (People vs. De la Cruz, 190SCRA 328)

Likewise, the use of motor vehicle by the accused aggravated the commission of Robbery with Homicide since the vehicle was used to facilitate their escaped from the scene of the crime. (People vs. Bartulay, 192 SCRA 621) Other similar means provided for in this article should be understood to refer to motorized vehicles or other efficient means of transportation similar to automobile or airplane (See The Revised Penal Code Book 1 by Reyes, 1993 Ed., p. 459) since the purpose of aggravating the penalty is to discourage the criminals from taking advantage of the great facilities offered by modern means of transportation and communication. 21. That the wrong done in the commission of the crime be deliberately augment by causing another wrong not necessary for its commission. This is cruelty provided for Art. 248 as a qualifying circumstances. There is cruelty when the offender deliberately and inhumanly augment the suffering of the victim. The fact that the victim’s decapitated body bearing forty-three (43) stab wounds, twenty-four (24) of which were fatal, was found dumped in the street is not sufficient for a finding of cruelty where there is no showing that the accused, for his pleasure and satisfaction, caused the victim to suffer slowly and painfully and inflicted on him unnecessary physical and moral pain. (People vs. Ilaoa, 233 SCRA 231) It would seem that there must be proof showing that when the second and subsequent stab wounds were inflicted, the victim was still alive because the essence of cruelty is that the culprit fins=ds delight in prolonging the suffering of the victim. In People vs. Binondo, 241 SCRA 764. When the victim was decapitated, the Supreme Court considered the presence of this aggravating circumstance stating that: “no greater outrage, insult or abuse can a person commit upon a corpse than to sever the head there from. The head represents the dignity of the person and any violence directed towards it can not but be deliberately or inhumanly augmenting the suffering of the victim or outraging or scoffing at his person or corpse.” Aggravating circumstances not provided under Revised Penal Code. A.

Under the influence of Dangerous Drugs Sec. 17 of B.P. Blg. 179 promulgated on March 2 1982 pro-vides: “The provision of any law to the contrary notwithstanding, when a crime is committed by an offender who is under the influence of dangerous drugs, such state shall be considered as qualifying aggravating circumstance.

In People vs. Tac-an, 182 SCRA 601, it was said that “in the absence of a competent medical or other direct evidence of ingestion of a dangerous drug, courts must be wary and critical of indirect evidence considering the severe consequences for the accused of a finding that he acted under the influence of prohibited drug.”

However, if the evidence is clear that the accused perpetrated the act while under the influence of illegal drugs, the crime is aggravated. B.

Use of Unlicensed Firearm

Although the circumstance that human life was destroyed with the used of an unlicensed firearm is not aggravating under Art. 14, RPC, it may still be taken into consideration to increase the penalty because of the explicit provisions of Presidential Decree No. 1866 as amended by R.A. No. 8294. Section 1, par. 3 of said law says that if homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. Further, under Sec. 3 thereof, when a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of explosives like pill box, Molotov cocktails bombs, fire bombs or other incendiary devices which result in the death of any person, such use shall be considered as an aggravating circumstance. C.

Organized/Syndicated Crime Group

The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping helping one another for purposes of gain in the commission of any crime. (Art. 23, R.A. No. 7659) ALTERNATIVE CIRCUMSTANCES (Art. 15) There are those circumstances 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 law enumerates them as (1) relationship of the offender and the offended party (2) intoxication, and (3) degree of instruction and education of the offender. 1. Relationship Relationship shall be considered when the offended party is the spouse, ascendant, brother or sister, or relative by affinity in the same degree of the offender, like parents-in-law, children-in-law, or brothers-in-law or sisters-inlaw. The relationship of step-daughter and step-father is included (People vs. Tan, Jr., 264 SCRA 425) but not that of uncle and niece. (People vs. Cabresos, 244 SCRA 362) When is relationship a mitigating circumstance? In crimes against property, it is mitigating, applying by analogy Art. 332 which provides that there is no criminal but only civil liability in case of theft, swindling or malicious mischief committed or caused mutually by spouses, ascendants, descendants, brothers and sisters, and relatives by affinity in the same line, with a proviso that in case of brothers or sisters and brothers-in-law or sistersin-law, they must be living together. In crimes against persons, except serious physical injuries, where relationship is always aggravating the rule is where the offended party is relative of a higher degree, or where he is of the same level as the offender, relationship is aggravating, otherwise it is mitigating. If the results in the death of the victim even if he is of a lower level, the relationship is aggravating.

However, this rule is subject to the “other conditions attending the commission of the crime.” 2. Intoxication The ordinary rule is that, intoxication may be considered either aggravating or mitigating, depending upon the circumstances attending the commission of the crime. Intoxication has the effect of decreasing the penalty, if the intoxication is not habitual or subsequent to the plan to commit the crime; upon the other hand, when intoxication is habitual or intentional, it is considered as an aggravating circumstance. The person pleading intoxication must present proof that he had taken, a quantity of alcoholic beverage, prior to the commission of the crime, sufficient to produce the effect of blurring his reason; at the same time, he must prove that not only was intoxication not habitual but also that his imbibing the alcoholic drink was not intended to fortify his resolve to commit the crime. (People vs. Buenaflor, 211 SCRA 492) 3. Degree of Instruction and Education of the Offender High degree of education and instruction of the offender is always aggravating, never mitigating when applicable. In a case for Homicide or Murder, the liability of the offender is not aggravated even if he is a bar or board examination topnotcher, and has graduated summa cum laude from his college degree. On the other hand, the liability of an accountant or a lawyer who commits Estafa by means of “Kiting” or violation of the Trust Receipts Law shall be aggravated since he used his high degree education and knowledge in committing the criminal act. Low degree of instruction or education, on the other hand is always mitigating, never aggravating when applicable. Where the accused did not finish even the first grade in elementary school, the murder he committed is attenuated by this alternative circumstance (People vs. Limaco, 88 Phil. 35); so also in perjury where the affidavit is written in English this mitigating circumstance is present. The rule however is that not only illiteracy. But also lack of sufficient intelligence, is necessary to successfully avail of this alternative circumstance as mitigating. In Molesa vs. Director of Prisons, 59 Phil. 407, the Supreme Court ruled: “This Court has held that the mitigating circumstance of lack of instruction should not be taken into consideration with the crime of rape. x x x No one is so ignorant as not to knopw that the crime of rape is wrong and violation of the law.”

Title Two PERSONS CRIMINALLY LIABLE FOR FELONIES Who are the particeps criminis – that is, those participants in the crime? They are the principals, accomplices, and accessories. However, for light felonies, the persons criminally liable are only the principals and the accomplices. (Art. 16) By the personal nature of criminal liability, only natural persons can be the active subject of a crime. However, corporations and juridical persons can be ordered to pay fine as a punishment under some special laws, like the Corporation Law, General Banking Act, Omnibus Election Code, etc. In some cases, the officers of the corporation and/or partnerships are the ones personally held liable. 1. Principals There are three (3) Classes of Principals – (a) Principals by Direct Participation – that is, those who take a direct part in the execution of the act; (b) Principals by Inducement or Induction – those who directly force or induce others to commit the crime; and (c) Principals by Indispensable Cooperation, those who cooperate in the execution in the offense by another act without which the crime would not have been accomplished. (Art. 17) Principals by Direct Participation are those who, participating in the criminal resolution, proceed to perpetrate the crime and personally take part in its realization, executing acts which directly tend to the same end. (People vs. Guballo, 16401-R, February 19, 1957) To hold liable thus as principals by direct participation, they must have conspired with each other (and with other participants of there are any) and went to the scene of the crime to personally execute what they agreed upon, their acts tending towards the same objective. Thus, if A, B, C and D conspired with each other to kill X and then proceeded to the house of X, but before reaching the same, D pretending to answer the call of nature went out of the way and did not join A, B and C anymore when the three, he did not proceed to the scene of the crime. So also, if X, Y, and Z passed by the house of W who was apparently not in the mood and upon Z’s loud calling, went out of his house with a bolo whereupon Z tried to wrest possession of said bolo, and while grappling with W, the latter’s wife came out from nowhere and stabbed Z with her spear, W can not be classified as a principal by direct participation as he did not conspire with his wife in killing Z even if he was at the scene of the crime. The acts of the participants must be towards the same end in carrying out their plan. So that in the first example above, even if A only acted as lookout in the yard of X’s house, and B just accompanied C to the room where X was sleeping, ready to assist C if the need arises, and it was only C who fired the gun that killed X, all the, three (3), meaning A, B and C are principals by direct participation. Where the accused conspired with this three (3) co-accused to kill the two (2) victims and the role assigned to him was to kill one of the victims which he did, he is a principal by direct participation in the two (2) murders.

Where conspiracy has been adequately proven, there is collective criminal responsibility, for in conspiracy, the act of one is the act of all. On the other hand, if there is no conspiracy proved, individual criminal liability may ensue. Principals by Induction are of two (2) classes: those who directly induce others to commit the crime, and those who directly force another to perpetrate the offence. The one forced or induced is the principal by direct participation. There are two (2) ways of directly inducing another to commit a crime: (a)

By giving price, reward or promise. To fall under the scenario, the price, reward or promise must be the primordial consideration why the principal by direct participation proceeded to commit the crime. So that if he would commit the offense just the same with or without the price, promise or reward, the one who gave the price or reward is not liable. Necessarily, there must be conspiracy between the giver of the consideration, and the doer of the act.

(b)

By using words of command. To hold the principal by inducement liable, it is necessary that the inducement be made directly to secure the commission of the crime, and that such inducement be the determining cause of the execution of the act by the principal by direct participation.

Mere suggestion, or a thoughtless expression or a chance word spoken without any intention or expectation that it would produce the result can not hold the utterer liable as principal by inducement, thus, if A, in response to B who was narrating to him his (B’s) bitter experience with X in a chance conversation, told B, “Kung ako ikaw eh papatayin ko iyang si X,” and later on, B killed X, A can not be considered a principal by inducement. Even if the inducement be directly made, with the inducer insistent and determined to procure the commission of the crime, he still can not be classified as principal by induction if the inducement is not the determining cause for committing the crime. Thus, if the actor has reason of his own to commit the offense, there can be no principal by induction. Those who directly forced another to commit a crime are also categorized as Principals by Inducement. Thus, with a gun in his hand, A gave B a knife and ordered him to kill X who was sleeping nearby otherwise he (A) would shoot him (B). If B would stabbed X to death, A is a principal by inducement by directly forcing another to perpetrate a crime. B, on the other hand, is a principal by direct participation although he would be exempt from criminal liability under Article 12, par. 6. Principals by Indispensable Cooperation are those who cooperate in the commission of the offense by another act without which it would not have been accomplished. Like in the case of Principal by Inducement, it presupposes the existence of the principal by direct participation otherwise with whom shall be cooperate with indispensably. The cooperation here is an assistance knowingly or intentionally rendered which can not exist without previous cognizance of the criminal act

intended to be executed. (Phil. Law Dictionary by Moreno, 3rd Ed., p. 213) In other words, before an accused can be tagged as a principal by indispensable cooperation, he must have conspired with the principal by direct participation or must have a unity of criminal purpose and intention with him immediately before the commission of the offense, but his cooperation is in the performance of another act without which the criminal would have been accomplished. Where both accused conspired and confederated to commit rape, and one had sex with the offended party while the other was holding her hands, and thereafter the latter was the one who raped the victim, both are principals by direct participation and by indispensable cooperation in the two (2) crimes of rape committed. (People vs. Fernandez, 183 SCRA 511) Where A, a municipal treasurer, conspired with B for the latter to present a false receipt and which receipt was the basis of the reimbursement approved by A, and both thereafter shared the proceeds, A is the principal by direct participation and B by indispensable cooperation in the crime of Malversation. 2. Accomplices An accomplice is one who, not having participated as principal, cooperates in the execution of the offense by previous or simultaneous act. (Art. 18) He is sometimes referred to accessory before the fact. The existence of an accomplice presupposes the existence of a principal by direct participation. The accomplice does not conspire with the principal although he cooperated in the execution of the criminal act. If A approached B, borrowing the latter’s gun, telling him that he (A) is going to kill X, and B Knowing A’s criminal design, lent his gun with which A shot and killed X, B is an accomplice cooperating by previous act. In the above example, take note that while B did not conspire with A to kill X, he (B) concurred with A in his purpose. Had he conspired with A, B is a principal by indispensable cooperation. That act of A however must have a relation to the participation of B. Thus, if while B, knowing A’s purpose to kill X, still lent his gun to A, but A used a bolo in killing X, then B can not be considered an accomplice. While X was choking Y, W went behind Y without any knowledge of X and once within striking distance, stabbed Y. even upon seeing the stabbing made by W, X continued choking Y, who died of stab words. choking contributed to the death of Y. in this case, W is an accomplice cooperating by simultaneous act. If the offender, however, even of performing the acts of an accomplice, has participated as a principal, he will be punished as a principal, and no longer as an accomplice. 3.

Accessories (Art. 19) (Also accessory after the fact)

They are those who, having knowledge of the commission of the crime, and without having participated as principals or accomplices, take part subsequent to its commission in any of the following manners:

1.

By profiting themselves or assisting the offender to profit by the effects of the crime. The most common example is a person who, without having participated as principal or accomplice in Robbery or Theft but knowing that the property being offered to him is the proceeds or subject matter of the said crime, bought or purchased or dealt in any manner with such property, obtaining benefit from said transaction or helping the thief or robber to profit therefrom. If the robber or thief request him to sell the property stolen, and he does so and thereafter given a share, he is also an accessory. Under P.D No. 1612, otherwise known as “Anti-fencing Law,” any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should have known to have been derived from the proceeds of the crime of robbery of theft shall be punished depending on the value of the property involved. (Sec. 2) The accessory however should not take the property without the consent of the principal or accomplice in possession of the same, otherwise he is a principal in the crime of theft since a stolen property can also be the subject of theft or robbery. A person who profits or assist the offender to profit by the effects of the crime is also illustrated in a kidnapping case where the kidnappers ask a person who has not participated in the actual kidnapping, to contact the parents of the victim to negotiate the delivery of ransom money, and having successfully done so, receives a share from the same. He is also an accessory. But if a person being co-conspirator in theft or robbery, sold some of the property stolen, he should no longer be punished as an accessory since he will be held already as a principal.

2.

By concealing or destroying the body of the crime or the effects or instruments thereof to prevent its discovery. Where A, knowing that B and C had killed X, buried the corpse to prevent the discovery of the killing, he is an accessory. The body of the crime however does not only mean the body of the person killed. This phrase refers to CORPUS DELICTI – that is, the body or the substance of the offense. (People vs. Bantagan, 54 Phil. 841). Corpus delicti simply means the fact that a crime has actually been committed. (People vs. Madlangbayan, 94 SCRA 685) Placing a weapon in the hand of the deceased who was killed by his friend, to make it appear that his friend had killed the victim in self-defense constitutes an act of an accessory. Where the wife misled the authorities by informing them that the person who killed her husband was a theft who has fled,

when in truth, the killer was her paramour, the wife is liable as an accessory for concealing the body of the crime. If A, after killing a person, went to B and told the latter to hide the gun he used, which B did with the objective of concealing the crime, B is an accessory by concealing the instrument of the crime. So also, if X would deliver the car he had carnapped, to Y, telling the latter of the carnapping he did, and asking him to conceal the car so that the crime would not be discovered, and Y did so, he is an accessory by concealing the effects of the crime. 3.

By harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of public functions, or whenever the author of the crime is guilty of treason, parricide, murder or an attempt to take the life of the Chief Executive, or is known to be guilty of some other crime. If the one who harbors or assist in the escape of the principal is a public officer, whatever be the crime committed by the said principal provided it is not a light felony, will make him an accessory. Thus, if A rapes a woman, and he is assisted in his escape by a public officer, the latter is liable as an accessory. However, if the one who assist the rapist in his escape is a private individual, he is not liable as an accessory under the article because in case of a private individual assisting the escape of the principal, the crime committed must be treason, parricide, murder or an attempt to take the life of the Chief Executive. Thus, if A and B agreed to fight, and after killing B, A was assisted by private individual C in his escape, C is not liable as an accessory because the crime committed by A is only Homicide there being an agreement to fight. While accessories’ liability is subordinate to that of the principal, the acquittal of the latter does not mean acquittal of the accessory. So that if A, charged as principal in a murder case, with B indicted as accessory for helping him escape before he was finally arrested, and A was acquitted because of self-defense or that the court adjudged the crime to be only Homicide, B is not liable as an accessory. But if A was acquitted because of insanity, or the case against him dismissed because he died during the trial, B can still be held liable as accessory as long as it was proven that the crime was murder, and he assisted A in his escape. In connection with this matter, Presidential Decree No. 1829 provides that the penalty of prision correccional in its maximum period, or a fine ranging from one thousand (P1,000.00) to six thousand (P6,000.00) pesos or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of subjects and the investigation and prosecution of criminal cases by harboring or concealing, or facilitating the escape of any person whom he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to

prevent his arrest, prosecution and conviction. This is what is popularly known as Obstruction of Justice.

Title Three PENALTIES In General Penalty is the punishment imposed by lawful authority upon a person who commits an unlawful, deliberate or negligent act. (People vs. Moran, 44 Phil. 431) Article 21 of the Revised Penal Code provides that no felony shall be punishable by any penalty not prescribed by law prior to its commission but the law can not impose cruel and unusual punishment as the Constitution prohibits it. In a judgment of conviction for any crime, the court should specify the appropriate name of the penalty provided for the Revised Penal Code or in special laws. (People vs. Aquino, 186 SCRA 851) Classification of Penalties Article 21 of the Revised Penal Code provides that felony shall be punishable by any penalty not prescribed by law prior to its commission but the law can not impose cruel and unusual punishment as the Constitution prohibits it. In a judgment of conviction for any crime, the court should specify the appropriate name of the penalty provided for in the Revised Penal Code or in special laws. (People vs. Aquino, 186 SCRA 851) Classification of Penalties Art. 25 categories penalties into Principal penalties which death is the capital punishment; reclusion perpetua, reclusion temporal, perpetual or temporary absolute disqualification, perpetual or temporary special disqualification and prison mayor which are considered Afflictive penalties; prision correctional, arresto mayor, suspension and destierro which are Correccional penalties; aresto menor and public censure which are Light penalties; and Accessory penalties which are perpetual or temporary absolute disqualification, perpetual or temporary special disqualification, suspencion from public office, civil interdiction, indemnification, forfeiture or confiscation of instruments and proceeds of the offense, and the payment of costs. Principal penalties are those expressly imposed by the court while Accessory penalties are those that are deemed included in the principal penalties imposed. In the order of severity and for the purpose of successive service sentences, the penalties have the following scale: 1.

Death

2.

Reclusion

3.

Reclusion Temporal

4.

Prison Mayor

5.

Prision Carreccional

6.

Arresto Mayor

7.

Arresto Menor

8.

Destierro

9.

Perpetual Absolute Disqualification

10.

Temporary Absolute Disqualification

11.

Suspension from public office, the right to vote and be voted for, the right to follow profession or calling

12.

Public censure

The maximum duration however of the convict’s sentence shall not be more than threefold the length of time corresponding to the most severe of the penalties imposed. Said maximum period shall in no case exceed forty (40) years. (Art. 70) With respect to Reclusion Perpetua and Life Imprisonment which more often than not become somehow confusing, the following are their differences: 1.

Reclusion Perpetua is imposed by the Revised Penal Code while Life Imprisonment is by Special Law;

2.

Reclusion Perpetua entails imprisonment for only thirty (30) years after which the convict becomes eligible for pardon while Life Imprisonment does not appear to have any definite extent or duration; and

3.

Reclusion Perpetua carries Accessory penalties, while it is not so in Life Imprisonment. (People vs. Abapo, 239 SCRA 373)

For the purpose of graduating the penalties in the light of the mitigating and aggravating circumstances present in the commission of the offense, the courts shall observe the following graduated scales: SCALE NO. 1 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

SCALE NO. 2

Death

1.

Reclusion Perpetua Reclusion Temporal Prision Mayor Prision Correccional Arresto Mayor Destierro Arresto Menor Public censure Fine

2. 3.

4. 5.

Perpetual absolute disqualification Temporary absolute disqualification Suspension from public office, the right to vote and be voted for, and the right to follow a profession or calling Public censure Fine (Art. 71)

A fine, however, whether imposed as a single or as an alternative penalty, shall be considered afflictive if it exceeds six thousand (P6,000.00); correctional penalty, if it does not exceed six thousand (P6,000.00) but not less than two hundred (P200.00), and light if it be less than two hundred (P200.00). Duration or Penalties Article 27 specifies the duration of penalties. This was amended by Section 21 of R.A. No. 7659 which provides: Section 21. Article 27 of the Revised Penal Code, is hereby amended to read as follows: Art. 27. Reclusion Perpetua. – The penalty of reclusion perpetua shall be from twenty (20) years and one (1) day to forty (40) years. Reclusion Temporal. – The penalty of reclusion temporal shall be from twelve (12) years and one day to twenty (20) years. Prison Mayor and temporary disqualification. – The duration of the penalties of prison mayor and temporary disqualification shall be from six (6) years and one (1) day to twelve (12) years, except when the penalty of disqualification is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty. Prison correccional, suspension and destierro. – The duration of the penalties of prision correccional, suspension, and destierro shall be from six (6) months and one (1) day to six (6) years, except when suspension is imposed as an accessory penalty, in which case, its duration shall be that of the principal penalty. Arresto mayor. – The duration of the penalty of arresto mayor shall be from one (1) month and one (1) day to six (6) months. Arresto menor. – The duration of the penalty of arresto menor shall be from one (1) day to thirty (30) days. xxx Reclusion Perpetua, despite its “defined duration” in R.A. No. 7659 – twenty (20) years and one (1) day to forty (40) years – is still to be classified as an indivisible penalty (People vs. Lucas, 232 SCRA 537), and should be imposed in its entire duration in accordance with Art. 63 of the Revised Penal Code. (People vs. Magallano, 266 SCRA 305)

Preventive Imprisonment and Subsidiary Penalty Preventive imprisonment is the incarceration undergone by a person accused of a crime which is not bailable, or even if bailable, can not afford to post the bond. During the trial of his case, he is detained in jail. He is known as detention prisoner. Subsidiary penalty, on the other hand, is the personal penalty prescribed by law in substitution of the payment of fine embodied in the decision when the same can not be satisfied because of the culprit’s insolvency. (People vs. Jarumayan, 52 O.G. 248) Whenever as accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial or the proceedings on appeal. (Art. 29, RPC) So that, if the trial of A for Attempted Homicide is still going on for more than six (6) years, and he has been detained from the beginning of the trial for failure or inability to post bail bond, he shall be ordered immediately released, for the crime is punishable by prision correccional (Art. 249 in relation to Articles 6 and 51), and the range of this penalty is six (6) months and one (1) day to six (6) years only. (Art. 27) But the trial shall proceed so that in case of acquittal, he will have no criminal record. In case of conviction, he will not be imprisoned anymore. The preventive imprisonment undergone by the accuse shall be credited fully, to be subtracted from his sentenced, if he agrees in writing to abide by the disciplinary rules imposed on convicted prisoners; otherwise, only four-fifths of the time during which he has undergone preventive imprisonment shall be deducted. The following are exceptions however: 1.

If the convict is a recidivist or has been previous convicted twice or more of any crime;

2.

When upon being summoned for the execution of his sentenced, he shall have failed to surrender voluntarily. (Art. 29, RPC)

There is no subsidiary penalty of imprisonment if the principal penalty of imprisonment is more that six (6) years. Moreover the subsidiary imprisonment shall not exceed one third (1/3) of the principal penalty or one (1) year which ever is lesser. Application of Mitigating and Aggravating Circumstances The court must first consider whether the penalties imposable are Divisible or Indivisible. Indivisible penalties are those which have no fixed duration like death, reclusion perpetua, perpetual absolute or special disqualification, and public censure;

while Divisible penalties are those having fixed duration and case be divided into three (3) periods.

In case the law prescribes two indivisible penalties, like reclusion perpetua to death (the penalty for Infanticide, Parricide, Murder, etc.), the presence of one mitigating circumstance would result in the application of the lesser penalty, while the presence of an aggravating circumstance would mean the application of the greater penalty. If there is no mitigating and no aggravating circumstance, the lesser penalty shall be applied. If there be present both mitigating and aggravating circumstance, the court shall reasonably allow them to offset one another. (Art. 63) When the penalty is single indivisible, like the penalty for Piracy under Article 122 as amended by Sec. 3, R.A. No. 7659 – which is reclusion perpetua, such penalty shall be applied regardless of any mitigating or aggravating circumstance such as minority, in which case, the penalty may be reduced by a degree. Such is also the rule in case of two (2) indivisible penalties like reclusion perpetua to death. If the mitigating circumstance in attendance is privilege mitigating, the penalty shall be lowered by one degree. Thus, when the crime proven is Murder, (the penalty is reclusion perpetua to death under Art. 248, Revised Penal Code as amended by Sec. 6 of R.A. No. 7659), and the accused is a minor below sixteen (16) years old, the penalty shall be reclusion temporal. When the penalty is divisible and there is neither aggravating nor mitigating circumstance, the penalty shall be applied in medium period. If there is one ordinary mitigating circumstance it shall be applied in it minimum period, and if there is one (1) aggravating circumstance, the penalty shall be imposed in its maximum period. If the mitigating circumstance present is privileged one, the reduction of the penalty shall be by degree, not only by period. If there are both mitigating and aggravating circumstance, the court shall reasonably offset them according to their relative weight. (Art. 64) If the commission of the crime was attended by both mitigating and aggravating circumstances, the rules (Art. 62) are as follows: 1. Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime shall not be taken into account for the purpose of increasing the penalty. Example: “By means of fire” (Art. 14, par. 12) shall not be considered in the crime of Arson. That the crime was committed in the dwelling of the offended party (Art. 14, par. 3) shall not aggravate the liability of the offender convicted of Trespass to Dwelling. So also, “by means of poison” (Art. 14, par. 12) will not be considered to increase the liability in Murder qualified by using poison.

2. Aggravating circumstances which are inherent in the crime to such a degree that they must of necessity accompany the crime shall not increase the penalty. Example: Abuse of confidence (Art. 14, par. 4) shall no longer be considered Qualified Theft with grave abuse of confidence to increase the penalty. 3. Aggravating or mitigating circumstances which arise from the moral attributes of the offender or from his private relations with the offended party or from any personal cause shall serve to aggravate or mitigate the liability of the culprit to whom they are attendant. Example: X, Y, and Z, conspiring with each other, killed W who is X’s brotherin-law. Z committed it with evident premeditation while Y is a recidivist. The aggravating circumstance of evident premeditation applies only to Z, the fact that the victim is X’s brother-in-law would affect the liability only of X while recidivism which is personal to Y shall increase the liability of Y only. However, the mitigating circumstance of abandonment by the husband provided for in adultery under Art. 333 applies to both the wife and her lover because their act is only one, judicially speaking. (People vs. Avelino, et. al., [C.A.] 40 O.G. 194) 4. The circumstance which consist in the material execution of the act or in the means employed to accomplish it shall aggravate or mitigate the liability of those who had knowledge of them at the time of the execution of the act. Example: A, B, and C agreed to kill X and so armed with guns they proceeded to the house of the latter whereupon A told B and C that he would just stay in the yard to prevent any relative of X from helping the victim. When B and C entered the room of X, and saw him sleeping, it was C who shot him. The treachery that attended the commission of the crime shall also affect B and not only C treacherously killed X in his sleep because B had knowledge of the employment of the treacherous act being present actually during the shooting. A’s liability is not aggravated by treachery as he had no knowledge of it, being in the yard. So also, A, B and C agreed to kill X and in a drinking spree, A saw the opportunity and put poison in the glass of X. B saw (X should be substituted by A) pouring the poison while C did not see it and was unaware of it. X died after taking the poisonous drink. The aggravating circumstance of “by means of poison” affects only A and B. Other Effects of Penalty Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated in favor of the

Government unless they be property of a third person not liable for the offense; but those articles which are not subject of lawful commerce shall be destroyed. (Art. 45) This forfeiture or confiscation of instruments and proceeds of the offense is provided for as an accessory penalty under Article 25. If A stole the gun of B who is duly licensed to possess it, and used it in killing C, the gun will no longer be confiscated in favor of the government but would be returned to C. if the proceeds or tools can not be subject of lawful transaction like marijuana or shabu, then they shall be ordered burned or destroyed. Complex Crimes and Their Penalties (Delito Compuesto) When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, to be applied in its maximum period. (Art. 48) Art. 48 is not applicable in case of special complex crimes specifically provided for in Revised Penal Code like Robbery with Homicide or Rape or with Arson (Sec. 9, R.A. No. 7659 amending par. 1 of Article 294), or Rape with Homicide (Sec. 11, R.A. No. 7659 amending Article 335) and applies only when no specific penalty is stated in the law. Art. 48 speaks of two (2) types of complex crimes: (1) when a single act constitutes two or more grave or less grave felonies, otherwise known as compound crime, and (2) when an offense is a necessary means of committing the other, which is the complex crime proper. An example of No. 1 – that is, compound crime, is when A with a revolver shot B, missing him but the bullet hit X who is A’s father. A committed the crime of Attempted Homicide with Parricide. Or, when in recklessly driving his car, Y hit the car of W which in turn hit the car of A, the damages suffered by the two (2) cars resulting in grave or less grave felonies (not merely light). An example of No. 2 – that is, complex crime proper, is when the Municipal Treasurer, who received ten thousand (P10,000.00) from a taxpayer, placed in the duplicate original of the receipt the amount of one thousand (P1000.00) and then misappropriated the difference of nine thousand ((P9,000.00) is guilty of Malversation through Falsification of a Public Document because Falsification is necessary means to commit Malversation. It is however, Estafa through Falsification of Public Document, not Malversation of Public Funds through Falsification of Public Document, when a casual employee of the Bureau of Lands encashed a treasury warrant by affixing his signature thereon, when in fact the treasury warrant is not payable to him. He is not an accountable officer. (Sambiniano vs. Court of Appeals, et. al., 249 SCRA 24)

The accused, who, through intimidation, brought out the victim from her house to a nearby school building where he raped her is guilty of the complex crime of Forcible Abduction with Rape. (People vs. Grefiel, 215 SCRA 596) In complex crimes, one offense should not be punishable under another law. Both must be a violation of the Revised Penal Code. Thus, while Illegal Possession of Firearm could be argued as a necessary means to commit Murder or Homicide, there is no complex crime committed because one crime is punishable under a special law while the other is by Revised Penal Code. While one can be convicted only of rebellion where the murders, robberies and kidnapping were committed as a means to or in furtherance of the rebellion, offenses which were not committed in furtherance of the rebellion but for personal reasons or other motives, are to be punished separately even if committed simultaneously with the rebellious acts. (People vs. Oliva, 344 SCRA 435) Continuing Crime (Delito Continuado) A single crime consisting of a series of acts arising from one criminal resolution or intent not susceptible of division. (Philippine Law Dictionary by Moreno) In People vs. Encila, 76 O.G. 5824, it was defined as a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force however long a time it may occupy. When the actor, there being unity of purpose and of right violated, commits diverse acts, each of which, although of a delictual character, merely constitutes a partial execution of a single particular delict, such concurrence of delictual acts is called “delito continuado.” (Gamboa vs. Court of Appeals, 68 SCRA 314) The taking of several cows belonging to different owners while admittedly committed through several acts was held to be punished only as one crime when done or perpetrated during the same occasion. Where, however, in a train, the accused-twins ran amuck killing eight (8) persons and wounding one during that occasion, it was held that the eight murders and one attempted murder were committed qualified by treachery. (People vs. Toling, 62 SCRA 17)

Indeterminate Sentence Law (Act 4103 as amended by Act No. 4225) Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which, shall be that which, in view of the

attending circumstances, could be properly imposed under the rules of the said Code, and the minimum of which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and minimum shall not be less than the minimum term prescribed by the same. Since the opening sentence of this law says: “xxx in imposing a prison term xxx” this Indeterminate Sentence Law is not applicable to destierro. So that if a concubine is found guilty under Article 334, the court shall impose a straight penalty of not less than six (6) months and one (1) day nor more than six (6) years as this is the range of destierro provided for in Article 27. The Judge thus can sentence a concubine to a straight prison term of six (6) months and one day, or ten (10) months, or one (1) year, or five (5) years, etc. How to Apply the Indeterminate Sentence Law To cite a specific example: If A who is only seventeen (17) years old was found guilty of Homicide with a mitigating circumstance of voluntary surrender, the court shall first determine the applicable penalty by applying the mitigating circumstance present. Since the accused is only seventeen (17) years old, he is entitled to a mitigating circumstance of minority which is a privileged one. Thus, the penalty of reclusion temporal prescribed for Homicide (Art. 249) will be reduced to prison mayor, which is one degree lower. The court will the consider the other mitigating circumstance of voluntary surrender so that the maximum period under the Indeterminate Sentence Law is prison mayor which has a range of six (6) years and one (1) day to eight (8) years. The minimum term shall be any range of prision correccional which is the penalty next lower in degree to prison mayor. The sentence of the court thus is as follows: “Accused is hereby sentenced to an indeterminate prison term of six (6) months and one (1) day [or more but not exceeding six (6) years] of prision correccional as minimum, to six (6) years and one (1) day [or more but not exceeding eight (8) years] of prision mayor as maximum. If in the above example, the seventeen (17)-year-old convict did not voluntarily surrender but is a recidivist, then the maximum term of the indeterminate sentence is prision mayor in its maximum period, that is ten (10) years and one (1) day to twelve (12) but the minimum is the same – any range within prision correccional. This Indterminate Sentence Law is applicable to special laws as it says: “if the offense is punished by any other law.” Thus, People vs. Viente, 225 SCRA 361, the accused was found guilty of carnapping under Republic Act No. 6539 and was sentenced by the trial court to a straight imprisonment of thirty (30) years. The Supreme Court, ruling that the Indeterminate Sentence Law applies to violation of special laws, modified the penalty to

seventeen (17) years and four (4) months as minimum to thirty (30) years as maximum since Section 14 of the said Republic Act provides that, if carnapping is committed by means of violence or intimidation, the penalty is imprisonment for not less than seventeen (17) years and four (4) months and not more than thirty (30) years. There are exceptions to the application of the Indeterminate Sentece Law. Thus, Section 2 provides that the law shall not apply to person convicted of offenses punished with death penalty or life imprisonment; to those convicted of treason, conspiracy or proposal to commit treason, misprision of treason, rebellion, sedition or espionage or piracy; to those who are habitual delinquents; to those who shall have escaped from confinement or evaded sentence; to those who violated the conditional pardon granted by the Chief Executive; to those whose maximum term of imprisonment does not exceed one (1) year; nor to those already sentenced by final judgement at the time of the approval of the Act. Accused Mary Rose Ondo, having bee sentenced to life imprisonment for Large Scale Illegal Recruitment is not entitled to the benefits of the Indeterminate Sentence Law. (People vs. Ondo, 227 SCRA 562) The Court also refused to grant her the benefits of P.D. No. 603, otherwise known as the “Child and Youth Welfare Code.” Although there is a great distinction between reclusion perpetua and Life Imprisonment, and the Indeterminate Sentence Law does not mention reclusion perpetua as an exception, the courts have uniformly refused to apply this law to persons sentenced to reclusion perpetua, and the Supreme Court has consistently affirmed such ruling. Recidivists are entitled to the availment of the Indeterminate Sentence Law since those disqualified are Habitual Delinquents. (People vs. Venus, 63 SCRA 435) When the accused escaped from jail from his case was on appeal, he is not entitled to the benefits of the Indeterminate Sentence Law. (People vs. Martinado, 214 SCRA 712) A youthful offender whose sentenced is suspended under Sec. 192 of P.D. No. 603 and who escaped from his confinement is still entitled to the application of the Indeterminate Sentence Law. The same is true with an accused confined in the National Center for Mental Health (formerly National Mental Hospital) since their confinement can not be considered punishment but more of administrative matters for their rehabilitation. (People vs. Soler, 63 Phil. 868; People vs. Co, C.A. 67 O.G. 7451) A person sentenced to destierro who entered the prohibited area within the prohibited period has evaded the service of his sentence (People vs. Abilog, 82 Phil. 174) and when he committed a crime in that area, he will not be entitled to the benefits of the Indeterminate Sentence Law for the new crime. The application of the Indeterminate Sentence Law is based on the penalty actually imposed, not on the imposable penalty, and its purpose is to uplift and redeem

valuable human material, and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness. Probation Law Probation is a disposition under which a defendant, after conviction and sentenced is released, subject to conditions imposed by the court and to the supervision of a probation officer. (Sec. 3[a], P.D. No. 968 as amended by P.D. No. 1275, P.D. No. 1990 and B.P. Blg. 76) Under Section 4 of the law, the trial court may, after it shall have convinced and sentenced a defendant, and upon application by said defendant within the period of perfecting as appeal, suspend the execution of the sentenced and place the defendant on probation for such period and upon such terms and conditions as it may deem best: provided that no such application shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation is a mere privilege, not a right of the accused. It is rather an act of grace or clemency or immunity conferred by the State which may be granted by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law. The benefits of the law shall not be extended to those: 1.

Sentenced to serve a maximum of imprisonment of more than six (6) years.

2.

Convinced of subversion or any crime against national security or the public order.

3.

Who have previously been convinced by final judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not more than (should be not less than) two hundred (P200.00).

4.

Who have been once on probation.

5.

Who are already serving sentenced at the time the substantive provisions of this Decree became applicable.

If the accused is sentenced to more than six (6) year imprisonment even by a day, he is no longer entitled to the benefits of the Probation Law. However, multiple prison terms imposed against the accused found guilty of several offences in one decision should not be added up, and their sum total should not be determinative of his eligibility for, nay his disqualification from, probation since the law uses the word “maximum” not “total” term of imprisonment. (Francisco vs. Court of

Appeals, et al., 243 SCRA 384) Thus, if A, having been charged for five (5) cases which were jointly heard is sentenced in one decision for one (1) year and eight (8) months for each of the charges so that the totality of the prison term is more than six (6) years, he is not disqualified to avail of the provisions of the Probation Law. Conditions of Probation Every probation order issued by the court shall contain the following conditions: 1.

That probationer shall present himself to his designated supervising probation officer within seventy two (72) hours from receipt of the order.

2.

He shall report to the probation officer at least once a month at such time and place specified in the order.

The trial court may impose other conditions for the probationer to comply. Other Instances When Probation Not Applicable 1.

When the accused is convinced under R.A. No. 9165 – the new AntiDangerous Drugs Law except when he is a first offender minor in which case he is eligible for probation even if the penalty imposed is more than six (6) years. However if he is convinced of drug trafficking or pushing he is disqualified.

2.

If accused appeals his conviction irrespective of the purpose of the appeal even if it is only to question the propriety of the penalty imposed.

3.

Conviction of an election offense under the Revised Election Code.

Title Four EXTINCTION OF CRIMINAL LIABILITY: TOTAL AND PARTIAL

Criminal liability is totally extinguish by: 1.

Death of the convict;

2.

Service of the sentenced;

3.

Amnesty;

4.

Absolute Pardon;

5.

Prescription of the crime;

6.

Prescription of the penalty; and

7.

Marriage of the offended woman as provided for in Art. 344 (Art. 89)

On the other hand, it is partially extinguish by: 1.

Conditional Pardon;

2.

Commutation of the sentenced; and

3.

Good conduct allowances which the culprit may earn while serving sentenced.

The grant of probation may be considered as a form of extinction of criminal liability which was bestowed while accused who was never been incarcerated, was out on bail, may thus be categorized as total extinction thereof. However, if it was granted after the conviction of the accused who was in jail, it can be considered as partial extinction only. It must be noted however, that unlike in service of sentence, in probation, the probationer is still required to report to a Probation Officer at a certain period until the duration of the probation period. 1.

Death of the Accused If the accused dies, at whatever stage of the case, personal penalty is totally and permanently extinguished. You can not imprison a dead person. With respect to pecuniary liabilities like fine or costs of the proceedings, they are extinguished only when the death of the offender occurs before final judgment. With respect to civil liability of the accused, if he dies after the judgment has become final, the same is not extinguished and it can be enforced against the

estate of the deceased. If he dies however, before promulgation of sentence, or even after, but the same is not yet final, on account of an appeal or a motion for reconsideration duly filed, the civil liability is also extinguished. The offended party nevertheless is allowed to file a separate civil action, this time based on either contract, quasi-contract, law or quasi-delicts (the other sources of obligation under Article 1157 of the Civil Code). The statute of limitations on the civil liability in such a case is deemed interrupted during the pendency of the criminal case. (People vs. Bayotas, 236 SCRA 239) 2.

Service of Sentence When the accused has fully served his sentence, his personal or criminal liability is to be considered permanently terminated.

3.

Amnesty and Absolute Pardon Amnesty is a sovereign act of oblivion for past acts, granted by the Government to a certain class of persons, charged or guilty of crime, usually political offences, and often conditioned upon their return to obedience and duty within a prescribed time. (Black’s Law Dictionary, 4th Ed., p. 108) Pardon is an act of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed. (De Leon vs. Dir. Of Prisons, 31 Phil. 60) It is the Chief Executive who can grant both but in the case of Amnesty, it needs concurrence of Congress. While pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, Amnesty looks backward 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 amnesty stands before the law precisely as though he had committed no offense. (Barrioquinto, et al. vs. Fernandez, et al., 82 Phil. 642). Thus, Art. 89 says “xxx by amnesty which completely extinguishes the penalty and all its effects.” Thus, if A was convicted of Homicide and was granted Absolute Pardon, and later on committed Murder or Homicide, he will be considered a recidivist. However, if his first offense is Rebellion and was granted amnesty and later on was found guilty of sedition, recidivism can not be considered against him. Pardon, to be considered as a mode of extinction of criminal liability should be pardon by the President of the Philippines and not pardon by the offended party which only extinguishes civil liability. (Art. 23, RPC) Pardon by the offended party, however, in cases of Adultery, Concubinage, Rape, Acts of Lasciviousness, Seduction or Abduction when granted before the institution of the criminal action also extinguishes criminal liability. (Art. 344, RPC) Under R.A.

No. 8353, in the crime of rape, if it is the husband who is the offender, the subsequent forgiveness by the wife shall extinguish the criminal action or the penalty except when the marriage is void ab initio. (Sec. 2) 4.

Prescription of Crime It is the forfeiture or loss of the right of the State to Prosecute the offender or file criminal action after the lapse of a certain period of time. (See The Revised Penal Code, Book I by Luis B. Reyes) Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribed in twenty (20) years; those punishable by the other afflictive penalties (like prision major), in fifteen (15) years; and those by correctional penalty, in ten (10) years except those by arresto mayor which shall prescribe in five (5) years while grave oral defamation and grave slander by deed prescribed in six (6) months. Light offences shall prescribe in two (2) months. When the penalty imposable is a compound one, the highest penalty shall be made the basis of the application of the rules on prescription. (Art. 90) The period of prescription shall commence to run from the day of discovery of the crime by the offended party, the authorities or their agents. (Art. 91) Thus, if A witnessed the killing of X by B, and since A not being related to X, got scared, and did not report the crime to the authority, the crime (Murder or Homicide) will never prescribe. But if A is the son of X, or even if not related to X, he reported to the police authorities what he witnessed, and no complaint is filed in court within twenty (20) years, then the crime will prescribed, and after twenty (20) years and one (1) day from the discovery of the crime, no charge can be filed against B anymore. The period shall be interrupted by the filling of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiable stopped for any reason not imputable to him. (Ibid.) The filing of the complaint even with the Fiscal’s office only (Francisco vs. Court of Appeals, 122 SCRA 538; Calderon- Bargas vs. RTC-Pasig, Metro Manila, 227 SCRA 56) or with the court shall interrupt the prescriptive period. Thus, in the example above, if B was charged before the court or the prosecutor’s office on the tenth (10th) year from discovery, the prescriptive period is interrupted. If one (1) year after the filing of the complaint or information, the proceedings were stopped without fault on the part of B, or was dismissed, the period shall begin to run again, and after nine (9) years and one (1) day, the crime of B shall be deemed prescribed since the ten (10)-year period that lapsed without filing any criminal complaint shall be considered so that only nine (9) years and one (1) day would be needed to complete the prescriptive period of twenty (20) years.

Criminal cases, however, which are covered by the Rule on Summary Procedure under the Rules of Court must be filed with the Court, otherwise, they shall prescribe even if filed already with the Fiscal’s office, after the lapse of sixty (60) days. (Zaldivia vs. Reyes, et al., 211 SCRA 277) However, in Cabelic vs. Geronimo, May 27, 2002, a case of slight physical injury thus covered by the Rules on Summary Procedure, the Supreme Court ruled that the period by prescription was interrupted by the filing of the complaint with the office of the Provincial Prosecutor. The Zaldivia case involved a violation of a municipal ordinance where the applicable law is not Art. Of the Revised Penal Code but Act No. 3326. Prescription of Falsification of Public Documents shall begin from registration of the falsified document with the Register of Deeds since the registration is the official notice to the whole world; but the crime of Bigamy shall commence to prescribe from discovery by the offended party or the authorities of the crime, and not from the time the bigamous marriage was registered with the Local Civil Registrar since marriage is not property which would be registered in the place where it is located, and a bigamous marriage is generally entered into a place where the offender is not known to be a married person, in order to conceal his legal impediment. (Sermonia vs. Court of Appeals, et al., 233 SCRA 155) Even if libel is punishable by prision correccional, it prescribes not in ten (10) years but in one (1) year as expressly provided for in Article 90. With respect to offenses punished with a fine, to determine their prescriptive period, such fine should not be reduced or converted into a prison term and should be considered as afflictive, correctional or light under Article 26 of the Revised Penal Code. 5.

Prescription of Penalty Prescription of the penalty is that loss or forfeiture of the right of the State to execute the final sentence of conviction after the lapse of a certain period of time. The penalties of death and reclusion perpetua prescribe in twenty (20) years; other afflictive penalties (like reclusion temporal and prision mayor), in fifteen (15) years while correctional penalties except arresto mayor which prescribes in five (5) years, prescribe in ten (10) years. Light penalties shall prescribe in one (1) year. (Art. 92), RPC) The penalty, to be subject of prescription must have been imposed by final judgment. Thus, if A after conviction by the trial court, appealed the decision, and escaped from jail where he has been detained during trial, the penalty will never prescribe. In prescription of penalty, the offender must be serving sentence, and must have escaped, committing the crime of Evasion of Service of Sentence. From the day he escaped, the prescription of penalty commences to run. If the penalty imposed is death or reclusion perpetua, he must be able to hide from the authorities for a period of twenty (20) years, or if it is reclusion temporal, for

fifteen (15) years. If within the prescriptive period he should give himself up, or be captured, or would go to a foreign country with which the Philippines has no extradition treaty, or should commit another crime, then the period is interrupted and the penalty will not prescribed anymore. Problem: A was sentenced to reclusion temporal for Homicide and while serving sentence, escaped on January 1, 1980. He must be able to elude authorities up to January 2, 1995 to consider the penalty prescribed. Suppose he was arrested after five (5) years of escape – that is, on January 1, 1985, and was able to re-escape on January 1, 1986, he must hide for just ten (10) more years. The five (5) – year period during his escape must have to be considered for purposes of completing the fifteen (15) – year period for the prescription of the penalty of Homicide. Reason for Prescription of the Crime and/or Penalty During the period that the accused/convict escaped, he lives a life of a hunted animal, hiding mostly in the mountains and forest in constant mortal fear of being caught. His life, far from being happy, comfortable and peaceful, is reduced to a mere existence filled with fear, discomfort, loneliness and misery. As the distinguished penal commentator Viada said, the convict who evades sentence is sometimes sufficiently punished by his voluntary and self-imposed punishment, and at times, his voluntarily exile is more grievous than the sentence he was trying to avoid. And all the tie he has to utilize every ingenuity and means to outwit the Government agencies bent on recapturing him. For all this, the Government extends to him a sort of condonation or amnesty. (See Inflate vs. Provincial Warden, 92 Phil. 310) Marriage of the Offended Party with the Offender In cases of Seduction, Abduction, Rape and Acts of Lasciviousness (SARA), the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provision of this paragraph shall also be applicable to the co-pricipals, accomplices and accessories after the fact of the abovenamed crimes. (Art. 344, last par.) In other crimes, marriage of the complainant and the accused does not extinguish criminal liability. In the crimes of SARA (Seduction, Abduction, Rape and Acts of Lasciviousness), the marriage must be entered into in good faith, and if undertaken only to avoid criminal prosecution, such marriage does not result in the extinction of penal liability. (People vs. Santiago, 51 Phil. 68) If done in good faith however, the marriage benefits the accessory or accomplice even if he is already serving sentenced. (Laceste vs. Santos, 56 Phil. 472) Under R.A. No. 8353, the subsequent valid marriage between the offender and the offended party in the crime of rape shall extinguish the criminal action

or the penalty imposed. In case of multiple rapes, however, the principle does not apply. Thus, if A, B and C raped W in that when A was having sex with W, B, and C were holding the legs and arms of W, and when it was B’s turn, A and C were the ones holding W’s legs and arms, and when C was the one having sex with W, the ones holding her arms and legs were A and B. even if later on, A contracted marriage with W, there is no extinction of penal responsibility because this is a case of multiple rapes. Even if rape is now a crime against person and no longer a crime against chastity, the principle of marriage as a form of extinguishment of criminal liabilities applies. Partial Extinction of Criminal Liability Conditional Pardon by the Chief Executive partially extinguishes the penal liability of a convict. It is that pardon granted to a prisoner which is subject to some conditions, one of which is that he will not commit any crime anymore. Oftenly, this kind of pardon is delivered to a convict still serving sentence who must accept the condition in order to effective. Thus, part of his sentence is remitted which he will no longer undergo. Commutation is the substitution of a lesser penalty for that of a greater punishment imposed on the convict by the Chief Executive. Thus, instead of pardon, the President may commute the death penalty to reclusion perpetua, or if the penalty is reclusion temporal, he may grant a commutation altering or changing the penalty to prison mayor. There is no doubt a partial extinction of criminal liability occurs. The commutation of the original sentenced for another of a different length and nature shall have the legal effect of substituting the latter in the place of the former. (Art. 96) Unlike in conditional pardon, the commutation of penalty in favor of the convict does not need his acceptance. (22 R.C.L. 530) With respect to Good Conduct Allowances, Art. 97 provides for the guidelines which by its nature may be expanded or supplemented by the prison’s authority. The prisoner however, to be entitled, must be serving his sentence. If the accused is enjoying liberty under a conditional pardon, he can not be entitled to the good conduct allowances. (People vs. Martin, 68 Phil. 122) The allowances for good conduct granted by the Director of Prisons (now Bureau of Corrections) shall not have revoked. (Art. 99)

Title Five CIVIL LIABILITY

Person Civilly Liable for Felonies Every person criminally liable for a felony is also civilly liable. (Art. 100) Thus, if A committed Murder, Theft or Rape, aside from imprisonment, he is obliged to pay the offended party the civil liability which includes restitution, reparation of the damage caused, and indemnification for consequential damages. (Art. 104) Of course, if the crime is one from which no civil liability may arise, like illegal Possession of Firearm (P.D. No. 1866 as amended by R.A. No. 8294) or illegal Sale, Transport or Possession of Prohibited or Regulated Drugs (R.A. No. 6425 as amended by R.A. No. 7659), the convict incures no civil liability. If an accused however was not held criminally liable, it does not mean he is not civilly liable. In fact, under the Rules of Court, in case of acquittal, unless there is a clear showing that the act from which the civil liability might arise did not exist, the judgment shall make a finding on the civil liability of the accused in favor of the offended party. (Rule 120, Sec. 2) Civil Liability of Parents and/or Guardians For the crimes committed by minors and insane persons who are exempt from criminal liability, the civil liability shall devolve upon those having legal authority or control over them unless it appears that there was no fault or negligence on their part or that they are insolvent, in which case, the property of the minor or the insane shall be liable, excepting property exempt from execution. (Art. 101, RPC) This is thus a direct and primary liability of the parents or guardian. Subsidiary Liability of Inn Keepers, Tavern-Keepers, Employers, Teachers or Persons Engaged in Industry In default of the persons criminally liable, innkeepers, tavern-keepers and any persons or corporations shall be civilly liable for the crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulations shall have been committed by them or their employees. (Art. 102) A restaurant or movie house owner who opens his establishment before 9:00 o’clock in the morning despite the existence of an ordinance that they can open only after 9:00 a.m. so as not to coincide with rush-our traffic will be civilly liable if a person is killed inside their establishments, and the accused-killer is insolvent to satisfy the civil liability.

The same rule applies to employers, teachers of persons engaged in any kind of industry, for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. (Art. 103) The civil obligations arising from crimes devolve upon the heirs of the person criminally liable, and the action demand likewise descends to the hiers of that person injured. (Art. 108, RPC) Thus, if A was found guilty of killing B, and was sentenced to reclusion perpetua and to pay the heirs of B, fifty thousand (P 50,000.00) but died while serving sentenced, his (A’s) heirs are bound to pay the heirs of B the said amount of fifty thousand (P 50,000.00) if he left properties sufficient to cover the civil liability. However, if on account of a business transaction between the heirs of A, and the heirs of B, the latter owe the former thirty thousand (P30,000.00), the heirs of the convicted man A, can deduct the said indebtedness from the fifty thousand (P 50,000.00) award provided in the decision, since civil liability arising from the crime shall be extinguished in the same manner as other obligations in accordance with the provisions of the Civil Code. (Art. 112, RPC) This is subject however to the provision of Article 1288 of the Civil Code of the Philippines which provides: Article 1288. Neither shall there be compensation if one of the debts consist in civil liability arising from a penal offense. The convict shall be obliged to satisfy the civil liability contained in the judgment of conviction even if he has served his sentence, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or any other reason. (Art. 113, RPC)