ateneo 2007 criminal law (book 1).pdf

QuickTime and aTIFF (Uncompressed) decompressor

are needed to see this picture.

ATENEO CENTRAL BAR OPERATIONS 2007

Criminal Law SUMMER REVIEWER

Advisers: Atty. Lorenzo Padilla, Justice Diosdado Peralta; Head: Kristine Quimpo; Understudies: Ivy Patdu, Krizna Gomez

BOOK I

CRIMINAL LAW A branch of municipal law which defines crimes, treats of their nature and provides for their punishment. Characteristics of Criminal Law:

1. General binding on all persons who reside or sojourn in the Philippines

Exceptions: a. Treaty Stipulation b. Laws of Preferential Application c. Principles of Public International Law

Ex: i. sovereigns and other chiefs of

state ii. Ambassadors, ministers

plenipotentiary, minister resident and charges daffaires

(BUT consuls, vice-consuls and other foreign commercial representatives CANNOT claim the privileges and immunities accorded to ambassadors and ministers.)

2. Territorial penal laws of the Philippines are

enforceable only within its territory Exceptions: (Art. 2 of RPC binding even on crimes committed outside the Philippines) a. offense committed while on a

Philippine ship or airship b. forging or counterfeiting any coin or

currency note of the Philippines or obligations and the securities issued by the Government

c. introduction into the country of the above-mentioned obligations and securities

d. while being public officers and employees, an offense committed in the exercise of their functions

e. crimes against national security and the law of the nations defined in Title One of Book Two

3. Prospective the law does not have any

retroactive effect. Exception: when the law is favorable to the

accused Exceptions to the Exception:

a. The new law is expressly made inapplicable to pending actions or existing causes of action

b. Offender is a habitual criminal

Theories of Criminal Law: 1. Classical Theory basis is mans free will to

choose between good and evil, that is why more stress is placed upon the result of the felonious act than upon the criminal himself. The purpose of penalty is retribution. The RPC is generally governed by this theory.

2. Positivist Theory basis is the sum of

social and economic phenomena which conditions man to do wrong in spite of or contrary to his volition. This is exemplified in the provisions on impossible crimes and habitual delinquency.

3. Mixed Theory combination of the classical

and positivist theories wherein crimes that are economic and social in nature should be dealt in a positive manner. The law is thus more compassionate.

Construction of Penal Laws:

1. Liberally construed in favor of offender Ex:

a. the offender must clearly fall within the terms of the law

b. an act is criminal only when made so by the statute

2. In cases of conflict with official translation, original Spanish text is controlling,

3. No interpretation by analogy. LIMITATIONS ON POWER OF CONGRESS TO ENACT PENAL LAWS:

1. ex post facto law 2. bill of attainder 3. law that violates the equal protection clause

of the constitution 4. law which imposes cruel and unusual

punishments nor excessive fines



Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007

Page 2 of 174

BOOK ONE

GENERAL PROVISIONS

RPC took effect February 1, 1932.

RULES:

1. Philippine vessel or airship Philippine law shall apply to offenses committed in vessels registered with the Philippine Bureau of Customs. It is the registration, not the citizenship of the owner which matters.

2. Foreign vessel a. French Rule General Rule: Crimes committed aboard a foreign vessel within the territorial waters of a country are NOT triable in the courts of such country.

Exception: commission affects the peace and security of the territory, or the safety of the state is endangered.

b. English Rule General Rule: Crimes committed aboard a foreign vessel within the territorial waters of a country are triable in the courts of such country.

Exception: When the crime merely affects things within the vessel or it refers to the internal management thereof.

*This is applicable in the Philippines.

Title One: FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY

Chapter One: FELONIES

Felonies acts and omissions punishable by the Revised Penal Code Crime acts and omissions punishable by any law Act an overt or external act

Omission failure to perform a duty required by law ELEMENTS:

1. there must be an act or omission 2. this must be punishable by the RPC 3. act or omission was done by means of dolo

or culpa NULLUM CRIMEN, NULLA POENA SINE LEGE There is no crime when there is no law punishing it. Classification Of Felonies According To The Means By Which They Are Committed: 1. Intentional Felonies- by means of deceit

(dolo) Requisites:

a. freedom b. intelligence c. intent.

MISTAKE OF FACT misapprehension of fact on the part of the person who caused injury to another. He is not criminally liable.

Requisites: a. the act done would have been lawful

had the facts been as the accused believed them to be

bintention is lawful b. mistake must be without fault or

carelessness by the accused

2. Culpable Felonies- by means of fault (culpa) Requisites:

a. freedom b. intelligence c. negligence (lack of foresight) and

imprudence (lack of skill) MALA IN SE v. MALA PROHIBITA Mala in se Mala Prohibita moral trait of offender

considered not considered

good faith as a defense

valid defense, unless the crime is the result of culpa

not a defense; intent not necessary- sufficient that the offender has the intent to perpetrate the act prohibited by the special law

ART.1: TIME WHEN ACT TAKES EFFECT

ART. 2: APPLICATION OF ITS PROVISIONS




Page 3 of 174

degree of accomplishment of the crime

taken into account taken into account only when consummated

mitigating and aggravating circumstance

taken into account in imposing penalty

GENERALLY not taken into account

degree of participation

when there is more than one offender, it is taken into consideration

GENERALLY not taken into account

laws violated General Rule: RPC

General Rule: Special Penal Laws

INTENT v. MOTIVE Intent Motive purpose to use a particular means to effect a result

moving power which impels one to act

element of crime except in crimes committed with culpa

not an element

essential in intentional felonies

essential only when the identity of the felon is in doubt

ART. 4: CRIMINAL LIABILITY

Requisites:

1. felony has been committed intentionally 2. injury or damage done to the other party is

the direct, natural and logical consequence of the felony

Hence, since he is still motivated by criminal intent, the offender is criminally liable in:

1. Error in personae mistake in identity 2. Abberatio ictus mistake in blow 3. Praetor intentionem lack of intent to

commit so grave a wrong PROXIMATE CAUSE the cause, which in the natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, without which the result would not have occurred

Requisites: 1. Act would have been an offense against

persons or property. 2. There was criminal intent. 3. Accomplishment is inherently impossible; or

inadequate or ineffectual means are employed.

4. Act is not an actual violation of another provision of the Code or of special law.

Impossible crime occurs when there is:

1. inherent impossibility to commit the crime 2. inadequate means to consummate the crime 3. ineffectual means to consummate the crime

Note: Paragraph 2 does not apply to crimes punishable by special law, including profiteering, and illegal possession of firearms or drugs. There can be no executive clemency for these crimes.

STAGES OF EXECUTION: 1. CONSUMMATED when all the elements

necessary for its execution and accomplishment are present

2. FRUSTRATED Elements:

a. offender performs all acts of execution b. all these acts would produce the felony

as a consequence c. BUT the felony is NOT produced d. by reason of causes independent of the

will of the perpetrator 3. ATTEMPTED Elements:

a. offender commences the felony directly by overt acts

b. does not perform all acts which would produce the felony

c. his acts are not stopped by his own spontaneous desistance

Par.1 Criminal liability for a felony committed different from that intended to be committed

Par. 2 Impossible Crime

Art. 5: Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties

ART. 6: CONSUMMATED, FRUSTRATED, AND ATTEMPTED FELONIES




Page 4 of 174

Crimes, which do not admit of Frustrated and Attempted Stages:

1. Offenses punishable by Special Penal Laws, unless the law provides otherwise

2. Formal crimes consummated in one instance (Ex: slander, adultery, etc.)

3. Impossible Crimes 4. Crimes consummated by mere attempt

(Ex: attempt to flee to an enemy country, treason, corruption of minors)

5. Felonies by omission 6. Crimes committed by mere agreement

(Ex: betting in sports: ending, corruption of public officers)

Crimes which do not admit of Frustrated Stage:

1. Rape 2. Bribery 3. Corruption of Public Officers 4. Adultery 5. Physical Injury

2 stages in the development of a crime:

1. Internal acts - e.g. mere ideas of the mind - not punishable

2. External acts a. Preparatory acts - ordinarily not

punishable except when considered by law as independent crimes

(e.g. Art. 304, Possession of picklocks and similar tools)

b. Acts of Execution - punishable under the RPC

General Rule: Punishable only when they have been consummated

Exception: Even if not consummated, if committed against persons or property

Ex: slight physical injuries, theft, alteration of boundary marks, malicious mischief, and intriguing against honor. Note: Only principals and accomplices are liable; accessories are NOT liable even if committed against persons or property.

CONSPIRACY Requisites:

1. Two or more persons come to an agreement 2. For the commission of a felony 3. And they decide to commit it

Concepts of Conspiracy:

1. As a crime in itself Ex: conspiracy to commit rebellion, insurrection, treason, sedition, coup d etat 2. Merely as a means to commit a crime

Requisites: a. a prior and express agreement b. participants acted in concert or

simultaneously, which is indicative of a meeting of the minds towards a common criminal objective

Note: Conspiracy to commit a felony is different from conspiracy as a manner of incurring criminal liability. General Rule: Conspiracy to commit a felony is not punishable since it is merely a preparatory act.

Exception: when the law specifically provides for a penalty

Ex: rebellion, insurrection, sedition, coup d etat

General Rule: The act of one is the act of all.

Exception: Unless one or some of the conspirators committed some other crime which is not part of the intended crime.

Attempted Frustrated Consummated Overt acts of execution are started

All acts of execution are present

All the acts of execution are present

Not all acts of execution are present

Crime sought to be committed is not achieved

The result sought is achieved

Due to reasons other than the spontaneous desistance of the perpetrator

Due to intervening causes independent of the will of the perpetrator

ART. 7: WHEN LIGHT FELONIES ARE PUNISHABLE

ART. 8: CONSPIRACY AND PROPOSAL TO COMMIT FELONY




Page 5 of 174

Exception to the exception: When the act constitutes an indivisible offense.

PROPOSAL TO COMMIT A FELONY Requisites:

1. A person has decided to commit a felony 2. And proposes its execution to some other

person or persons

Importance of Classification

1. To determine whether the felonies can be complexed or not.

2. To determine the prescription of the crime and of the penalty.

Penalties (imprisonment):

1. Grave felonies afflictive penalties: 6 yrs. and 1 day to reclusion perpetua (life)

2. Less grave felonies correctional penalties:

1 month and 1 day to 6 years 3. Light felonies - arresto menor (1 day to 30

days)

General Rule: RPC provisions are supplementary to special laws.

Exceptions: 1. when special law provides otherwise 2. when provision of RPC are impossible of

application, either by express provision or by necessary implication

Special Laws RPC Terms imprisonment prision

correccional, prision mayor, arresto mayor, etc.

Attempted or Frustrated Stages

General Rule: Not punishable Exception: Unless otherwise stated

Punishable

Plea of guilty as mitigating circumstance

No Yes

Minimum, medium and maximum periods

Not applicable Yes

Penalty for accessory or accomplice

General Rule: None Exception: Unless otherwise stated

Yes

Provisions of RPC applicable to special laws:

Art. 16 Participation of Accomplices Art. 22 Retroactivity of Penal laws if favorable

to the accused Art. 45 Confiscation of instruments used in

the crime Note: When the special law adopts the penalties imposed in the RPC i.e. penalties as reclusion perpetua, prision correccional, etc. the provisions of the RPC on imposition of penalties based on stages of execution, degree of participation and attendance of mitigating and aggravating circumstance may be applied by necessary implication.

Conspiracy Proposal Elements Agreement to

commit AND commission

person decides to commit a crime AND proposes the same to another

Crimes Conspiracy to commit: sedition, treason, rebellion, coup d etat

Proposal to commit: treason, rebellion, coup d etat *no proposal to commit sedition

OVERT ACTS IN CONSPIRACY MUST CONSIST OF:

1. Active participation in the actual commission of the crime itself, or

2. Moral assistance to his co-conspirators by being present at the time of the commission of the crime, or

3. Exerting a moral ascendance over the other co-conspirators by moving them to execute or implement the criminal plan

People v. Abut, et al. (GR No. 137601, April 24, 2003)

ART. 9: GRAVE FELONIES, LESS GRAVE FELONIES AND LIGHT FELONIES

ART. 10: OFFENSES NOT SUBJECT TO THE PROVISIONS OF THIS CODE




Page 6 of 174

Chapter Two JUSTIFYING CIRCUMSTANCES

AND CIRCUMSTANCES, WHICH EXEMPT FROM CRIMINAL LIABILITY

ART. 11. JUSTIFYING CIRCUMSTANCES JUSTIFYING CIRCUMSTANCES where the act of a person is in accordance with law such that said person is deemed not to have violated the law. General Rule: No criminal and civil liability incurred.

Exception: There is civil liability with respect to par. 4 where the liability is borne by persons benefited by the act.

Elements: 1. Unlawful Aggression indispensable requirement There must be actual physical assault or

aggression or an immediate and imminent threat, which must be offensive and positively strong.

The defense must have been made during the existence of aggression, otherwise, it is no longer justifying.

While generally an agreement to fight does not constitute unlawful aggression, violation of the terms of the agreement to fight is considered an exception.

2. Reasonable necessity of the means

employed to prevent or repel it

Test of reasonableness depends on: (1) weapon used by aggressor (2) physical condition, character, size

and other circumstances of aggressor

(3) physical condition, character, size and circumstances of person defending himself

(4) place and occasion of assault

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

NOTE: Perfect equality between the weapons used,

nor material commensurability between the means of attack and defense by the one defending himself and that of the aggressor is not required REASON: the person assaulted does not have sufficient opportunity or time to think and calculate. Rights included in self-defense:

1. defense of person 2. defense of rights protected by law 3. defense of property (only if there is also an

actual and imminent danger on the person of the one defending)

4. defense of chastity Kinds of Self-Defense:

1. self-defense of chastity there must be an attempt to rape the victim

2. defense of property must be coupled with an attack on the person of the owner, or on one entrusted with the care of such property.

3. self-defense in libel justified when the libel is aimed at a persons good name.

Stand ground when in the right - the law does not require a person to retreat when his assailant is rapidly advancing upon him with a deadly weapon. NOTE: Under Republic Act 9262 (Anti-Violence Against Women and Their Children Act of 2004), victim-survivors who are found by the Courts to be suffering from Battered Woman Syndrome (BWS) do not incur any criminal or civil liability despite absence of the necessary elements for the justifying circumstance of self-defense in the RPC. BWS is a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

Elements: 1. unlawful aggression (indispensable

requirement)

Par. 1 Self-defense People v. Narvaez, (GR No. L-33466-67, April 20, 1983) Attack on property alone was deemed sufficient to comply with element of unlawful aggression

Par. 2 Defense of Relative




Page 7 of 174

2. reasonable necessity of the means employed to prevent or repel it

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

Relative entitled to the defense:

1. spouse 2. ascendants 3. descendants 4. legitimate, natural or adopted brothers and

sisters, or relatives by affinity in the same degrees

5. relatives by consanguinity within the 4th civil degree

NOTE: The relative defended may be the original aggressor. All that is required to justify the act of the relative defending is that he takes no part in such provocation.

Elements: 1. unlawful aggression (indispensable

requirement) 2. reasonable necessity of the means employed

to prevent or repel it 3. person defending be not induced by revenge,

resentment or other evil motive

Elements:

1. evil sought to be avoided actually exists 2. injury feared be greater than that done to

avoid it 3. no other practical and less harmful means of

preventing it NOTE: The necessity must not be due to the negligence or violation of any law by the actor.

Elements:

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

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

NOTE: The accused must prove that he was duly appointed to the position claimed he was discharging at the time of the commission of the offense. It must also be shown that the offense committed was the necessary consequence of such fulfillment of duty, or lawful exercise of a right or office.

Elements:

1. an order has been issued 2. order has a lawful purpose (not patently

illegal) 3. means used by subordinate to carry out said

order is lawful NOTE: The superior officer giving the order cannot invoke this justifying circumstance. Good faith is material, as the subordinate is not liable for carrying out an illegal order if he is not aware of its illegality and he is not negligent. General Rule: Subordinate cannot invoke this circumstance when order is patently illegal.

Exception: When there is compulsion of an irresistible force, or under impulse of uncontrollable fear.

EXEMPTING CIRCUMSTANCES grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent. Basis: The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. Burden of proof: Any of the circumstances is a matter of defense and must be proved by the defendant to the satisfaction of the court. Justifying Exempting Who/what is affected?

Act Actor

Nature of act

act is considered legal

act is wrongful but actor not liable

Existence None Yes, but since

Par. 6 Obedience to a Superior Order

Par. 3 Defense of Stranger

Par. 4 State of Necessity (Avoidance of Greater Evil or Injury)

Par. 5 Fulfillment of Duty or Lawful Exercise of a Right or Office

ART. 12: CIRCUMSTANCES, WHICH EXEMPT FROM CRIMINAL LIABILITY




Page 8 of 174

of a crime voluntariness is absent the actor is not liable

Liability No criminal and civil liability BUT there is civil liability as to Art.11(4) (state of necessity)

No criminal liability but there is civil liability EXCEPT as to Art. 12(4) (injury by mere accident) and (7) (lawful cause)

IMBECILE one while advanced in age has a mental development comparable to that of children between 2 and 7 years old. He is exempt in all cases from criminal liability. INSANE one who acts with complete deprivation of intelligence/reason or without the least discernment or with total deprivation of freedom of will. Mere abnormality of the mental faculties will not exclude imputability. General Rule: Exempt from criminal liability

Exception: The act was done during a lucid interval.

NOTE: Defense must prove that the accused was insane at the time of the commission of the crime because the presumption is always in favor of sanity.

Requisite: Offender is under 9 years of age at the time of the commission of the crime. There is absolute criminal irresponsibility in the case of a minor under 9 years of age.

NOTE: Under R.A. 9344 or the Juvenile Justice And Welfare Act a minor 15 years and below is exempt from criminal liability

NOTE: Such minor must have acted without discernment to be exempt. If with discernment, he is criminally liable. Presumption: The minor committed the crime without discernment. DISCERNMENT mental capacity to fully appreciate

the consequences of the unlawful act, which is shown by the:

1. manner the crime was committed 2. conduct of the offender after its commission

NOTE: Under R.A. 9344 a minor over 15 but but below 18 who acted without discernment is exempt from criminal liability

Elements:

1. A person is performing a lawful act 2. with due care 3. He causes injury to another by mere accident 4. Without fault or intention of causing it.

IRRESISTIBLE FORCE offender uses violence or physical force to compel another person to commit a crime. Elements:

1. The compulsion is by means of physical force.

2. The physical force must be irresistible. 3. The physical force must come from a third

person. NOTE: Force must be irresistible so as to reduce the individual to a mere instrument.

UNCONTROLLABLE FEAR offender employs intimidation or threat in compelling another to commit a crime. DURESS use of violence or physical force Elements:

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

2. It promises an evil of such gravity and imminence that an ordinary man would have succumbed to it.

NOTE: Duress to be a valid defense should be based on real, imminent or reasonable fear for ones life or limb. It should not be inspired by speculative, fanciful or remote fear. A threat of future injury is not enough.

Par. 4 Accident without fault or intention of causing it

Par. 5 Irresistible Force

Par. 6 Uncontrollable Fear

Par. 3 Person Over 9 and Under 15 Acting Without Discernment

Par. 1 Imbecility or Insanity

Par. 2 Under Nine Years of Age




Page 9 of 174

ACTUS ME INVITO FACTUS NON EST MEUS ACTUS Any act done by me against my will is not my act. PAR 7. Insuperable Cause INSUPERABLE CAUSE some motive, which has lawfully, morally or physically prevented a person to do what the law commands Elements:

1. An act is required by law to be done. 2. A person fails to perform such act. 3. His failure to perform such act was due to

some lawful or insuperable cause. Ex:

1. A priest cant be compelled to reveal what was confessed to him.

2. No available transportation officer not liable for arbitrary detention

3. Mother who was overcome by severe dizziness and extreme debility, leaving child to die not liable for infanticide (People v. Bandian, 63 Phil 530)

ABSOLUTORY CAUSES where the act committed is a crime but for some reason of public policy and sentiment, there is no penalty imposed. Exempting and justifying circumstances are absolutory causes. Examples of such other circumstances are:

1. spontaneous desistance (Art. 6) 2. accessories exempt from criminal liability

(Art. 20) 3. Death or physical injuries inflicted under

exceptional circumstances (Art. 247) 4. persons exempt from criminal liability from

theft, swindling, malicious mischief (Art 332) 5. instigation

NOTE: Entrapment is NOT an absolutory cause. A buy-bust operation conducted in connection with illegal drug-related offenses is a form of entrapment.

Entrapment Instigation The ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan.

Instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal

NOT a bar to accuseds prosecution and conviction

Accused will be acquitted

NOT an absolutory cause

Absolutory cause

Privileged Mitigating Ordinary Mitigating Offset by any aggravating circumstance

Cannot be offset Can be offset by a generic aggravating circumstance

Effect on penalty

Effect of imposing the penalty by 1 or 2 degrees lower than that provided by law

If not offset, has the effect of imposing the minimum period of the penalty

Kinds (Sources)

Minority, Incomplete Self-defense, two or more mitigating circumstance without any aggravating circumstance (has the effect of lowering the penalty by one degree). Art. 64, 68 and 69

Those circumstances enumerated in paragraph 1 to 10 of Article 13

Age Criminal Responsibility/ Effect 15years Absolute irresponsibility, exempting

circumstance * as amended by RA 9344

15 < and < 18

Conditional responsibility Without discernment not criminally liable With discernment criminally liable * as amended by RA 9344

Minor delinquent

Sentence is suspended

18 and 70 Full responsibility

Chapter Three

CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY




Page 10 of 174

Par. 4 Provocation or Threat

> 70 Mitigated responsibility, no imposition of death penalty, execution of death sentence may be suspended and commuted

MITIGATING CIRCUMSTANCES those which if present in the commission of the crime reduces the penalty of the crime but does not erase criminal liability nor change the nature of the crime NOTE: A mitigating circumstance arising from a single fact absorbs all the other mitigating circumstances arising from that same fact.

NOTE: This applies when not all the requisites are present. If two requisites are present, it is considered a privileged mitigating circumstance. However, in reference to Art.11(4) if any of the last two requisites is absent, there is only an ordinary mitigating circumstance. Remember though, that in self-defense, defense of relative or stranger, unlawful aggression must always be present as it is an indispensable requirement.

NOTE: Age of accused is determined by his age at the date of commission of crime, not date of trial.

NOTE: Can be used only when the proven facts show that there is a notable and evident disproportion between the means employed to execute the criminal act and its consequences. Factors that can be considered are:

1. weapon used 2. injury inflicted 3. part of the body injured 4. mindset of offender at the time of commission

of crime

This provision addresses the intention of the offender at the particular moment when the offender executes or commits the criminal act, not to his intention during the planning stage NOTE: In crimes against persons if victim does not die, the absence of the intent to kill reduces the felony to mere physical injuries. It is not considered as mitigating. It is mitigating only when the victim dies. NOTE: It is not applicable to felonies by negligence because in felonies through negligence, the offender acts without intent. The intent in intentional felonies is replaced by negligence or imprudence. There is no intent on the part of the offender, which may be considered as diminished

Provocation any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.

Requisites:

1. provocation must be sufficient 2. it must originate from the offended party 3. must be immediate to the commission of the

crime by the person who is provoked NOTE: Threat should not be offensive and positively strong. Otherwise, it would be an unlawful aggression, which may give rise to self-defense and thus no longer a mitigating circumstance.

Provocation Vindication Made directly only to the person committing the felony

Grave offense may be also against the offenders relatives mentioned by law

Cause that brought about the provocation need not be a grave offense

Offended party must have done a grave offense to the offender or his relatives

Necessary that provocation or threat immediately preceded the act. No time interval

May be proximate. Time interval allowed

Par. 1 Incomplete Justifying or Exempting Circumstances

Par. 2 Under 18 or Over 70 Years Old

Par. 3 No Intention to Commit so Grave a Wrong

ART. 13: MITIGATING CIRCUMSTANCES




Page 11 of 174

Requisites: 1. a grave offense done to the one committing

the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters or relatives by affinity within the same degrees

2. the felony is committed in immediate vindication of such grave offense

NOTE: Immediate allows for a lapse of time, as long as the offender is still suffering from the mental agony brought about by the offense to him. (proximate time, not just immediately after)

Requisites: 1. offender acted upon an impulse 2. the impulse must be so powerful that it

naturally produced passion or obfuscation in him

NOTE: Act must have been committed not in the spirit of lawlessness or revenge; act must come from lawful sentiments. Act, Which Gave Rise To Passion And Obfuscation:

1. That there be an act, both unlawful and unjust

2. The act be sufficient to produce a condition of mind

3. That the act was proximate to the criminal act, not admitting of time during which the perpetrator might recover his normal equanimity

4. The victim must be the one who caused the passion or obfuscation

NOTE: Passion and obfuscation cannot co-exist with treachery since this means that the offender had time to ponder his course of action.

PASSION & OBFUSCATION IRRESISTIBLE FORCE

Mitigating Exempting No physical force needed Requires physical

force From the offender himself Must come from a

3rd person Must come from lawful sentiments Unlawful PASSION & OBFUSCATION PROVOCATION

Produced by an impulse which may be caused by provocation

Comes from injured party

Offense which engenders perturbation of mind need not be immediate. It is only required that the influence thereof lasts until the crime is committed

Immediately precede the commission of the crime

Effect is loss of reason and self-control on the part of the offender

Same

VOLUNTARY

SURRENDER VOLUNTARY

PLEA OF GUILT Requisites: 1. offender not

actually arrested 2. offender

surrendered to person in authority

3. surrender was voluntary

1. offender spontaneously confessed his guilt

2. confession was made in open court, that is, before the competent court that is to try the case

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

WHEN SURRENDER VOLUNTARY - must be spontaneous, showing 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 necessarily incurred in his search and capture.

NOTE: If both are present, considered as two independent mitigating circumstances. Further mitigates penalty.

Par. 5 Vindication of Grave Offense

Par. 6 Passion or Obfuscation

Par. 7 Surrender and Confession of Guilt




Page 12 of 174

NOTES: plea made after arraignment and after trial

has begun does not entitle accused to the mitigating circumstance

If accused pleaded not guilty, even if during arraignment, he is entitled to mitigating circumstance as long as he withdraws his plea of not guilty to the charge before the fiscal could present his evidence.

Plea to a lesser charge is not a Mitigating Circumstance because to be such, the plea of guilt must be to the offense charged.

Plea to the offense charged in the amended info, lesser than that charged in the original info, is Mitigating Circumstance.

The offender is deaf and dumb, blind or otherwise suffering from some physical defect, restricting his means of action, defense or communication with others. NOTE: The physical defect must relate to the offense committed.

Requisites: 1. The illness of the offender must diminish the

exercise of his will-power. 2. Such illness should not deprive the offender

of consciousness of his acts.

Examples Not examples

defendant who is 60 years old with failing eyesight is similar to a case of one over 70 yrs old

killing the wrong person

outraged feeling of owner of animal taken for ransom is analogous to vindication of grave offense

not resisting arrest is not the same as voluntary surrender

impulse of jealous feeling, similar to passion and obfuscation

running amuck is not mitigating

voluntary restitution of property, similar to voluntary surrender

extreme poverty, similar to incomplete justification based on state of necessity

CHAPTER FOUR CIRCUMSTANCES WHICH AGGRAVATE

CRIMINAL LIABILITY

AGGRAVATING CIRCUMSTANCES Those which, if attendant in the commission of the crime, serve to have the penalty imposed in its maximum period provided by law for the offense or those that change the nature of the crime. BASIS: The greater perversity of the offender manifested in the commission of the felony as shown by:

1. the motivating power itself, 2. the place of the commission, 3. the means and ways employed 4. the time, or 5. the personal circumstances of the offender,

or the offended party. KINDS OF AGGRAVATING CIRCUMSTANCES:

1. Generic - those which apply to all crimes 2. Specific - those which apply only to specific

crimes, 3. Qualifying - those that change the nature of

the crime 4. Inherent - which of necessity accompany

the commission of the crime, therefore not considered in increasing the penalty to be imposed

5. Special - those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances

GENERIC AGGRAVATING CIRCUMSTANCE

QUALIFYING AGGRAVATING CIRCUMSTANCE

EFFECT : When not set off by any mitigating circumstance, Increases the penalty which should be imposed upon the accused to the

EFFECT: Gives the crime its proper and exclusive name and places the author of the crime in such a situation as to deserve no other

Par. 8 Physical Defect of Offender

Par. 9 Illness of the Offender

Par. 10 Similar and Analogous Circumstances




Page 13 of 174

maximum period but without exceeding the limit prescribed by law

penalty than that specially prescribed by law for said crimes (People v. Bayot, 64Phil269, 273)

If not alleged in the information, a qualifying aggravating circumstance will be considered generic

To be considered as such, MUST be alleged in the information

May be offset by a mitigating circumstance.

Cannot be offset by a mitigating circumstance

RULES ON AGGRAVATING CIRCUMSTANCES: 1. Aggravating circumstances shall NOT be

appreciated if: a) They constitute a crime specially

punishable by law, or b) It is included by the law in defining a crime

with a penalty prescribed, and therefore shall not be taken into account for the purpose of increasing the penalty.

Ex: That the crime be committed by means of fire,explosion (Art. 14, par. 12) is in itself a crime of arson (Art. 321) or a crime involving destruction (Art. 324). It is not to be considered to increase the penalty for the crime of arson or for the crime involving destruction.

2. The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof(Art.62, par.2)

3. Aggravating circumstances which arise:

a) From the moral attributes of the offender; b) From his private relations with the offended

party; or c) From any personal cause,

shall only serve to aggravate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. (Art. 62, par. 3)

4. The circumstances which consist : a) In the material execution of the act, or b) In the means employed to accomplish it,

shall serve to aggravate the liability of only those persons who had knowledge of them at the time of the execution of the act or their cooperation therein. Except when there is proof of conspiracy in which case the act of one is deemed to be the

act of all, regardless of lack of knowledge of the facts constituting the circumstance. (Art. 62, par. 4)

5. Aggravating circumstances, regardless of its kind, should be specifically alleged in the information AND proved as fully as the crime itself in order to increase the penalty. (Sec. 9, Rule 110, 2000 Rules of Criminal Procedure)

6. When there is more than one qualifying

aggravating circumstance present, one of them will be appreciated as qualifying aggravating while the others will be considered as generic aggravating.

ART. 14: AGGRAVATING CIRCUMSTANCES Par. 1. That advantage be taken by the offender of

his public position Requisites:

1. Offender is public officer 2. Public officer must use the influence,

prestige, or ascendancy which his office gives him as means to realize criminal purpose

It is not considered as an aggravating

circumstance where taking advantage of official position is made by law an integral element of the crime or inherent in the offense,

Ex: malversation (Art. 217), falsification of a document committed by public officers (Art. 171).

When the public officer did not take advantage of the influence of his position, this aggravating circumstance is not present

NOTE : Taking advantage of a public position is also inherent in the case of accessories under Art. 19, par. 3 (harboring, concealing, or assisting in the escape of the principal of the crime), and in crimes committed by public officers (Arts. 204-245).

Par. 2. That the crime be committed in contempt

of or with insult to public authorities Requisites:

1. That the public authority is engaged in the exercise of his functions.

2. That he who is thus engaged in the exercise of said functions is not the person against whom the crime is committed.




Page 14 of 174

3. The offender knows him to be a public authority.

4. His presence has not prevented the offender from committing the criminal act.

PERSON IN AUTHORITY public authority, or person who is directly vested with jurisdiction and has the power to govern and execute the laws Ex:

1. Governor 2. Mayor 3. Barangay captain/ chairman 4. Councilors 5. Government agents 6. Chief of Police

NOTE: A teacher or professor of a public or recognized private school is not a public authority within the contemplation of this paragraph. While he is a person in authority under Art. 152, that status is only for purposes of Art. 148 (direct assault) and Art. 152 (resistance and disobedience). The crime should not be committed against the

public authority (otherwise it will constitute direct assault under Art.148)

This is NOT applicable when committed in the presence of a mere agent.

AGENT subordinate public officer charged w/ the maintenance of public order and protection and security of life and property

Ex: barrio vice lieutenant, barrio councilman Par. 3. That the act be committed: (1) with insult or in disregard of the respect

due the offended party on account of his (a)rank, (b) age, or (c) sex or

(2) that it be committed in the dwelling of the

offended party, if the latter has not given provocation

Rules regarding par 3(1):

1. These circumstances shall only be considered as one aggravating circumstance.

2. Rank, age, sex may be taken into account only in crimes against persons or honor, they cannot be invoked in crimes against property.

3. It must be shown that in the commission of the crime the offender deliberately intended to offend or insult the sex, age and rank of the offended party.

RANK The designation or title of distinction used to fix the relative position of the offended party in

reference to others (There must be a difference in the social condition of the offender and the offended party). AGE may refer to old age or the tender age of the victim. SEX refers to the female sex, not to the male sex. The AC of disregard of rank, age, or sex is not applicable in the following cases:

1. When the offender acted with passion and obfuscation.

2. When there exists a relationship between the offended party and the offender.

3. When the condition of being a woman is indispensable in the commission of the crime.

(Ex: in parricide, abduction, seduction and rape)

People vs. Lapaz, March 31, 1989

Disregard of sex and age are not absorbed in treachery because treachery refers to the manner of the commission of the crime, while disregard of sex and age pertains to the relationship of the victim. DWELLING must be a building or structure exclusively used for rest and comfort (combination of house and store not included), may be temporary as in the case of guests in a house or bedspacers. It includes dependencies, the foot of the staircase and the enclosure under the house NOTES: The aggravating circumstance of dwelling

requires that the crime be wholly or partly committed therein or in any integral part thereof.

Dwelling does not mean the permanent residence or domicile of the offended party or that he must be the owner thereof. He must, however, be actually living or dwelling therein even for a temporary duration or purpose.

It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault from without.

What aggravates the commission of the crime in ones dwelling:

1. The abuse of confidence which the offended party reposed in the offender by opening the door to him; or




Page 15 of 174

2. The violation of the sanctity of the home by trespassing therein with violence or against the will of the owner.

Meaning of provocation in the aggravating circumstance of dwelling: The provocation must be:

1. Given by the owner of the dwelling, 2. Sufficient, and 3. Immediate to the commission of the crime.

NOTE: If all these conditions are present, the offended party is deemed to have given the provocation, and the fact that the crime is committed in the dwelling of the offended party is NOT an aggravating circumstance.

REASON: When it is the offended party who has provoked the incident, he loses his right to the respect and consideration due him in his own house.

Dwelling is not aggravating in the following cases:

1. When both the offender and the offended party are occupants of the same house, and this is true even if offender is a servant in the house.

exception: In case of adultery in the conjugal dwelling, the same is aggravating. However, if the paramour also dwells in the conjugal dwelling, the applicable aggravating circumstance is abuse of confidence.

2. When robbery is committed by the use of

force upon things, dwelling is not aggravating because it is inherent.

However, dwelling is aggravating in

robbery with violence against or intimidation of persons because this class of robbery can be committed without the necessity of trespassing the sanctity of the offended partys house.

3. In the crime of trespass to dwelling, it is

inherent or included by law in defining the crime.

4. When the owner of the dwelling gave

sufficient and immediate provocation. There must exist a close relation between

the provocation made by the victim and the commission of the crime by the accused.

5. The victim is not a dweller of the house. Par. 4. That the act be committed with: (1) abuse of confidence or (2) obvious ungratefulness

There are two aggravating circumstances present

under par.4 which must be independently appreciated if present in the same case

While one may be related to the other in the factual situation in the case, they cannot be lumped together. Abuse of confidence requires a special confidential relationship between the offender and the victim, while this is not required for there to be obvious ungratefulness

Requisites Of Abuse Of Confidence:

1. That the offended party had trusted the offender.

2. That the offender abused such trust by committing a crime against the offended party.

3. That the abuse of confidence facilitated the commission of the crime.

NOTE: Abuse of confidence is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315), and qualified seduction (Art. 337). Requisites of obvious ungratefulness:

1. That the offended party had trusted the offender;

2. That the offender abused such trust by committing a crime against the offended party.

3. That the act be committed with obvious ungratefulness.

NOTE: The ungratefulness contemplated by par. 4 must be such clear and manifest ingratitude on the part of the accused. Par. 5. That the crime be committed in the palace

of the Chief Executive, or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.

Actual performance of duties is not necessary

when crime is committed in the palace or in the presence of the Chief Executive

Requisites Regarding Public Authorities:

1. crime occurred in the public office




Page 16 of 174

2. public authorities are actually performing their public duties

PAR. 5. Where public

authorities are engaged in the discharge of their

duties

PAR. 2. Contempt or insult to public

authorities

FOR BOTH, Public authorities are in the performance of their duties

Place where public duty is performed In their office. Outside of their office.

The offended party May or may not be the public authority

Public authority should not be the offended party

Requisites (Place Dedicated To Religious Worship):

1. The crime occurred in a place dedicated to the worship of God regardless of religion

2. The offender must have decided to commit the crime when he entered the place of worship

Except for the third which requires that official

functions are being performed at the time of the commission of the crime, the other places mentioned are aggravating per se even if no official duties or acts of religious worship are being conducted there.

Cemeteries, however respectable they may be, are not considered as place dedicated to the worship of God.

Par. 6. That the crime be committed (1) in the nighttime, or (2) in an uninhabited place, or (3) by a band, whenever such circumstance may facilitate

the commission of the offense NOTE: When present in the same case and their element are distinctly palpable and can subsist independently, they shall be considered separately. When nighttime, uninhabited place or band aggravating:

1. When it facilitated the commission of the crime; or

2. When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or

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

NIGHTTIME (obscuridad) that period of darkness beginning at the end of dusk and ending at dawn. Commission of the crime must begin and be

accomplished in the nighttime. When the place of the crime is illuminated by light, nighttime is not aggravating. It is not considered aggravating when the crime began at daytime.

Nighttime is not especially sought for when the notion to commit the crime was conceived of shortly before commission or when crime was committed at night upon a casual encounter

However, nighttime need not be specifically sought for when (1) it facilitated the commission of the offense, or (2) the offender took advantage of the same to commit the crime

A bare statement that crime was committed at night is insufficient. The information must allege that nighttime was sought for or taken advantage of, or that it facilitated the crime

GENERAL RULE: Nighttime is absorbed in treachery.

EXCEPTION: Where both the treacherous mode of attack and nocturnity were deliberately decided upon in the same case, they can be considered separately if such circumstances have different factual bases. Thus: In People vs. Berdida, et. al. (June 30,

1966), nighttime was considered since it was purposely sought, and treachery was further appreciated because the victims hands and arms were tied together before he was beaten up by the accused.

In People vs. Ong, et. al. (Jan. 30, 1975), there was treachery as the victim was stabbed while lying face up and defenseless, and nighttime was considered upon proof that it facilitated the commission of the offense and was taken advantage of by the accused.

UNINHABITED PLACE (despoblado) one where there are no houses at all, a place at a considerable distance from town, where the houses are scattered at a great distance from each other Solitude must be sought to better attain the

criminal purpose What should be considered here is whether in the

place of the commission of the offense, there was a reasonable possibility of the victim receiving some help.




Page 17 of 174

BAND (en cuadrilla) whenever there are more than 3 armed malefactors that shall have acted together in the commission of an offense NOTE: There must be four or more armed men If one of the four-armed malefactors is a principal

by inducement, they do not form a band because it is undoubtedly connoted that he had no direct participation.

By a band is aggravating in crimes against property or against persons or in the crime of illegal detention or treason but does not apply to crimes against chastity

By a band is inherent in brigandage This aggravating circumstance is absorbed in the

circumstance of abuse of superior strength Par. 7. That the crime be committed on the

occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.

Requisites: 1. The crime was committed when there was a

calamity or misfortune 2. The offender took advantage of the state of

confusion or chaotic condition from such misfortune

If the offended was PROVOKED by the offended

party during the calamity/misfortune, this aggravating circumstance may not be taken into consideration.

Par. 8.That the crime be committed with the aid of (1) armed men or (2) persons who insure or afford impunity Requisites:

1. That armed men or persons took part in the commission of the crime, directly or indirectly.

2. That the accused availed himself of their aid or relied upon them when the crime was committed.

NOTE: This aggravating circumstance requires that the armed men are accomplices who take part in a minor capacity directly or indirectly, and not when they were merely present at the crime scene. Neither should they constitute a band, for then the proper aggravating circumstance would be cuadrilla. When This Aggravating Circumstance Shall Not Be Considered:

1. When both the attacking party and the party attacked were equally armed.

2. When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose.

3. When the others were only casually present and the offender did not avail himself of any of their aid or when he did not knowingly count upon their assistance in the commission of the crime

Par. 6 By a band Par. 8. With the aid of

armed men

As to their number Requires more than three armed malefactors (i.e., at least four)

At least two

As to their action Requires that more than three armed malefactors shall have acted together in the commission of an offense.

This circumstance is present even if one of the offenders merely relied on their aid, for actual aid is not necessary.

If there are four armed men, aid of armed men is

absorbed in employment of a band. If there are three armed men or less, aid of armed men may be the aggravating circumstance.

Aid of armed men includes armed women. Par. 9. That the accused is a recidivist RECIDIVIST 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 RPC. Requisites:

1. That the offender is on trial for an offense; 2. That he was previously convicted by final

judgment of another crime; 3. That both the first and the second offenses

are embraced in the same title of the Code; 4. That the offender is convicted of the new

offense. MEANING OF at the time of his trial for one crime. It is employed in its general sense, including the rendering of the judgment. It is meant to include everything that is done in the course of the trial, from




Page 18 of 174

arraignment until after sentence is announced by the judge in open court. What is controlling is the TIME OF THE TRIAL,

not the time of the commission of the offense. GENERAL RULE: To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copy of the sentences rendered against the accused.

Exception: If the accused does not object and when he admits in his confession and on the witness stand.

Recidivism must be taken into account no matter how many years have intervened between the first and second felonies.

Amnesty extinguishes the penalty and its effects.

However, pardon does not obliterate the fact that the accused was a recidivist. Thus, even if the accused was granted a pardon for the first offense but he commits another felony embraced in the same title of the Code, the first conviction is still counted to make him a recidivist

Being an ordinary aggravating circumstance,

recidivism affects only the periods of a penalty, except in prostitution and vagrancy (Art. 202) and gambling (PD 1602) wherein recidivism increases the penalties by degrees. No other generic aggravating circumstance produces this effect

In recidivism it is sufficient that the succeeding

offense be committed after the commission of the preceding offense provided that at the time of his trial for the second offense, the accused had already been convicted of the first offense.

If both offenses were committed on the same date, they shall be considered as only one, hence, they cannot be separately counted in order to constitute recidivism. Also, judgments of convicted handed down on the same day shall be considered as only one conviction. REASON: Because the Code requires that to be considered as separate convictions, at the time of his trial for one crime the accused shall have been previously convicted by final judgment of the other.

Par. 10. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

Requisites Of Reiteracion Or Habituality:

1. That the accused is on trial for an offense; 2. That he previously served sentence for

another offense to which the law attaches an a) Equal or b) Greater penalty, or c) For two or more crimes to which it

attaches a lighter penalty than that for the new offense; and

3. That he is convicted of the new offense

HABITUALITY RECIDIVISM As to the first offense

It is necessary that the offender shall have served out his sentence for the first offense

It is enough that a final judgment has been rendered in the first offense.

As to the kind of offenses involved The previous and subsequent offenses must not be em braced in the same title of the Code.

Requires that the offenses be included in the same title of the Code.

THE FOUR FORMS OF REPETITION ARE: 1. Recidivism (par. 9, Art. 14) Where a person, on separate occasions, is convicted of two offenses embraced in the same title in the RPC. This is a generic aggravating circumstance. 2. Reiteracion or Habituality (par. 10, Art. 14) Where the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two crimes to which it attaches a lighter penalty. This is a generic aggravating circumstance. 3. Multi-recidivism or Habitual delinquency (Art. 62, par, 5) Where a person within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification, is found guilty of the said crimes a third time or oftener. This is an extraordinary aggravating circumstance. 4. Quasi-recidivism (Art. 160) Where a person commits felony before beginning to serve or while serving sentence on a previous conviction for a felony. This is a special aggravating circumstance. Since reiteracion provides that the accused has

duly served the sentence for his previous conviction/s, or is legally considered to have




Page 19 of 174

done so, quasi-recidivism cannot at the same time constitute reiteracion, hence this aggravating circumstance cannot apply to a quasi-recidivist.

If the same set of facts constitutes recidivism and reiteracion, the liability of the accused should be aggravated by recidivism which can easily be proven.

Par. 11. That the crime be committed in consideration of price, reward or promise.

Requisites:

1. There are at least 2 principals: The principal by inducement (one who

offers) The principal by direct participation

(accepts) 2. The price, reward, or promise should be

previous to and in consideration of the commission of the criminal act

NOTE: The circumstance is applicable to both principals .It affects the person who received the price / reward as well as the person who gave it. If without previous promise it was given

voluntarily after the crime had been committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty.

The price, reward or promise need not consist of or refer to material things or that the same were actually delivered, it being sufficient that the offer made by the principal by inducement be accepted by the principal by direct participation before the commission of the offense.

The inducement must be the primary

consideration for the commission of the crime.

Par. 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 use of any artifice involving great waste and ruin

The circumstances under this paragraph will only be considered as aggravating if and when they are used by the offender as a means to accomplish a criminal purpose

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

When used as a means to kill another person, the crime is qualified to murder.

PAR. 12 by means of inundation, fire, etc.

PAR. 7 on the occasion of a conflagration,

shipwreck, etc. The crime is committed by means of any such acts involving great waste or ruin.

The crime is committed on the occasion of a calamity or misfortune.

Par. 13. That the act be committed with evident premeditation

Requisites: The prosecution must prove

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his determination; and

3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will.

Essence of premeditation: The execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. To establish evident premeditation, it must be

shown that there was a period sufficient to afford full opportunity for meditation and reflection, a time adequate to allow the conscience to overcome the resolution of the will, as well as outward acts showing the intent to kill. It must be shown that the offender had sufficient time to reflect upon the consequences of his act but still persisted in his determination to commit the crime. (PEOPLE vs. SILVA, et. al., GR No. 140871, August 8, 2002)

Premeditation is absorbed by reward or promise.

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




Page 20 of 174

offender premeditated on the killing of any person, it is proper to consider against the offender the aggravating circumstance of premeditation, because whoever is killed by him is contemplated in his premeditation.

Par. 14. That (1) craft, (2) fraud, or (3) disguise be employed.

Requisite The offender must have actually used craft, fraud, or disguise to facilitate the commission of the crime. CRAFT (astucia) involved the use of intellectual trickery or cunning on the part of the accused. A chicanery resorted to by the accused to aid in the execution of his criminal design. It is employed as a scheme in the execution of the crime. FRAUD (fraude) insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design.

FRAUD CRAFT Where there is a direct inducement by insidious words or machinations, fraud is present.

The act of the accused done in order not to arouse the suspicion of the victim constitutes craft.

Craft and fraud may be absorbed in treachery if

they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or they may co-exist independently where they are adopted for a different purpose in the commission of the crime. Ex: In People vs. San Pedro (Jan. 22, 1980),

where the accused pretended to hire the driver in order to get his vehicle, it was held that there was craft directed to the theft of the vehicle, separate from the means subsequently used to treacherously kill the defenseless driver.

In People vs. Masilang (July 11, 1986) there

was also craft where after hitching a ride, the accused requested the driver to take them to a place to visit somebody, when in fact they had already planned to kill the driver.

DISGUISE (disfraz) resorting to any device to conceal identity.

The test of disguise is whether the device or contrivance resorted to by the offender was intended to or did make identification more difficult, such as the use of a mask or false hair or beard.

The use of an assumed name in the publication of a libel constitutes disguise.

Par. 15. That (1) advantage be taken of superior strength, or (2) means be employed to weaken the defense.

Par. 15 contemplates two aggravating circumstances, either of which qualifies a killing to murder.

MEANING OF advantage be taken: To deliberately use excessive force that is out of proportion to the means for self-defense available to the person attacked. (PEOPLE vs. LOBRIGAS, et. al., GR No. 147649, December 17, 2002) No Advantage Of Superior Strength In The Following:

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

2. When a quarrel arose unexpectedly and the fatal blow was struck at a time when the aggressor and his victim were engaged against each other as man to man.

TEST for abuse of superior strength: the

relative strength of the offender and his victim and whether or not he took advantage of his greater strength.

When there are several offenders participating in the crime, they must ALL be principals by direct participation and their attack against the victim must be concerted and intended to be so.

Abuse of superior strength is inherent in the crime of parricide where the husband kills the wife. It is generally accepted that the husband is physically stronger than the wife.

Abuse of superior strength is also present when the offender uses a weapon which is out of proportion to the defense available to the offended party.




Page 21 of 174

BY A BAND ABUSE OF SUPERIOR STRENGTH

The element of band is appreciated when the offense is committed by more than three armed malefactors regardless of the comparative strength of the victim or victims.

The gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims.

Hence, what is taken into account here is not the number of aggressors nor the fact that they are armed, but their relative physical strength vis-a vis the offended party.

NOTE: Abuse of superior strength absorbs cuadrilla (band). MEANING OF Means employed to weaken defense - the offender employs means that materially weaken the resisting power of the offended party. Ex:

1. Where one, struggling with another, suddenly throws a cloak over the head of his opponent and while in this situation he wounds or kills him.

2. One who, while fighting with another, suddenly casts sand or dirt upon the latter eyes and then wounds or kills him.

3. When the offender, who had the intention to kill the victim, made the deceased intoxicated, thereby materially weakening the latters resisting power.

NOTE: This circumstance is applicable only to crimes against persons, and sometimes against person and property, such as robbery with physical injuries or homicide.

Par. 16. That the act be committed with treachery (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. Requisites:

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

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

TEST: It is not only the relative position of the parties but, more specifically, whether or not the victim was forewarned or afforded the opportunity to make a defense or to ward off the attack.

Rules Regarding Treachery:

1. Applicable only to crimes against persons. 2. Means, methods or forms need not insure

accomplishment of crime. 3. The mode of attack must be consciously

adopted. Treachery is taken into account even if the crime

against the person is complexed with another felony involving a different classification in the Code. Accordingly, in the special complex crime of robbery with homicide, treachery but can be appreciated insofar as the killing is concerned.

The suddenness of attack in itself does not

constitute treachery, even if the purpose was to kill, so long as the decision was made all of a sudden and the victims helpless position was accidental.

Treachery applies in the killing of a child even if

the manner of attack is not shown. Treachery must be proved by clear and

convincing evidence Treachery is considered against all the offenders

when there is conspiracy. WHEN MUST TREACHERY BE PRESENT:

1. When the aggression is continuous, treachery must be present in the beginning of the assault. (PEOPLE vs. MANALAD, GR No. 128593, August 14, 2002)

Thus, even if the deceased was shot

while he was lying wounded on the ground, it appearing that the firing of the shot was a mere continuation of the assault in which the deceased was




Page 22 of 174

wounded, with no appreciable time intervening between the delivery of the blows and the firing of the shot, it cannot be said that the crime was attended by treachery.

2. When the assault was not continuous, in

that there was interruption, it is sufficient that treachery was present at the moment the fatal blow was given.

Hence, even though in the inception of

the aggression which ended in the death of the deceased, treachery was not present, if there was a break in the continuity of the aggression and at the time of the fatal wound was inflicted on the deceased he was defenseless, the circumstance of treachery must be taken into account.

Treachery Should Be Considered Even If:

1. The victim was not predetermined but there was a generic intent to treacherously kill any first two persons belonging to a class. (The same rule obtains for evident premeditation).

2. There was aberratio ictus and the bullet hit a

person different from that intended. (The rule is different in evident premeditation).

3. There was error in personae, hence the

victim was not the one intended by the accused. (A different rule is applied in evident premeditation).

REASON FOR THE RULE: When there is treachery, it is impossible for either the intended victim or the actual victim to defend himself against the aggression.

TREACHERY ABSORBS:

1. Craft 2. Abuse of superior strength 3. Employing means to weaken the defense 4. Cuadrilla (band) 5. Aid of armed men 6. Nighttime

TREACHERY ABUSE OF SUPERIOR STRENGTH

MEANS EMPLOYED TO

WEAKEN DEFENSE

Means, methods or forms are employed by the offender to make it impossible or hard for the offended party to put any sort of resistance

Offender does not employ means, methods or forms of attack, he only takes advantage of his superior strength

Means are employed but it only materially weakens the resisting power of the offended party

Par. 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. MEANING OF which add ignominy to the natural effects thereof The means employed or the circumstances brought about must tend to make the effects of the crime more humiliating to victim or to put the offended party to shame, or add to his moral suffering. Thus it is incorrect to appreciate ignominy where the victim was already dead when his body was dismembered, for such act may not be considered to have added to the victims moral suffering or humiliation. (People vs. Carmina, G.R. No. 81404, January 28, 1991) Applicable to crimes against chastity, less

serious physical injuries, light or grave coercion, and murder.

Par. 18. That the crime be committed after an

unlawful entry.

UNLAWFUL ENTRY - when an entrance is effected by a way not intended for the purpose. NOTE: Unlawful entry must be a means to effect entrance and not for escape. REASON FOR AGGRAVATION: One who acts, not respecting the walls erected by men to guard their property and provide for their personal safety, shows a greater perversity, a greater audacity; hence, the law punishes him with more severity.




Page 23 of 174

Par. 19. That as a means to the commission of a crime, a wall, roof, floor, door, or window be broken.

Applicable only if such acts were done by

the offender to effect ENTRANCE. If the wall, etc., is broken in order to get out of the place, it is not an aggravating circumstance.

It is NOT necessary that the offender should

have entered the building Therefore, If the offender broke a window to enable himself to reach a purse with money on the table near that window, which he took while his body was outside of the building, the crime of theft was attended by this aggravating circumstance.

PAR. 19 PAR. 18

It involves the breaking (rompimiento) of the enumerated parts of the house.

Presupposes that there is no such breaking as by entry through the window.

NOTE: Breaking in is lawful in the following instances:

1. An officer, in order to make an arrest, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be;

2. An officer, if refused admittance, may break open any door or window to execute the search warrant or liberate himself,

3. Replevin, Section 4, Rule 60 of the Rules of Court

Par. 20. That the crime be committed (1) with the aid of persons under fifteen (15)

years of age, or (2) by means of motor vehicles, airships, or

other similar means. TWO DIFFERENT CIRCUMSTANCES GROUPED IN THIS PARAGRAPH: 1. With the aid of persons under fifteen years of

age: Intends to repress, so far as possible, the

frequent practice resorted to by professional criminals to avail themselves of minors taking advantage of their irresponsibility.

2. By means of motor vehicles, airships, or other similar means:

Intended to counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed.

Use of motor vehicle is aggravating where

the accused purposely and deliberately used the motor vehicle in going to the place of the crime, in carrying away the effects thereof, and in facilitating their escape.

MEANING OF or other similar means Should be understood as referring to motorized vehicles or other efficient means of transportation similar to automobile or airplane.

Par. 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission

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

1. That the injury caused be deliberately increased by causing other wrong;

2. That the other wrong be unnecessary for the execution of the purpose of the offender.

Cruelty is not inherent in crimes against persons. In order for it to be appreciated, there must be

positive proof that the wounds found on the body of the victim were inflicted while he was still alive in order unnecessarily to prolong physical suffering.

Cruelty cannot be presumed If the victim was already dead when the acts of

mutilation were being performed, this would also qualify the killing to murder due to outraging of his corpse.

IGNOMINY (PAR.17) CRUELTY (PAR. 21)

Involves MORAL suffering

Refers to PHYSICAL suffering

Unlike mitigating circumstances (par. 10, Art.

13), there is NO provision for aggravating circumstances of a similar or analogous character.




Page 24 of 174

CHAPTER FIVE ALTERNATIVE CIRCUMSTANCES

ART.15 Concept of Alternative Circumstances BASIS: The nature and effects of the crime and the other conditions attending its commission. THE ALTERNATIVE CIRCUMSTANCES ARE:

1. Relationship; 2. Intoxication; and 3. Degree of instruction and education of the

offender.

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

1. Spouse, 2. Ascendant, 3. Descendant, 4. Legitimate, natural, or adopted brother or

sister, or 5. Relative by affinity in the same degree of the

offender. Other Relatives Included (By Analogy):

1. The relationship of stepfather or stepmother and stepson or stepdaughter.

REASON: It is the duty of the stepparents to bestow upon their stepchildren a mothers/fathers affection, care and protection.

2. The relationship of adopted parent and adopted child.

NOTE: But the relationship of uncle and niece is not covered by any of the relationship mentioned.

When Relationship Mitigating And When Aggravating: 1. As a rule, relationship is mitigating in crimes

against property, by analogy to the provisions of Art. 332. Thus, relationship is mitigating in the crimes

of robbery (Arts. 294-302), usurpation (Art. 312), fraudulent insolvency (Art. 314) and arson (Arts. 321-322, 325-326).

2. In crimes against persons

a) It is aggravating where the offended party is a relative of I. a higher degree than the offender, or II. when the offender and the offended party

are relatives of the same level (e.g. brothers)

b) But when it comes to physical injuries:

i. It is aggravating when the crime involves serious physical injuries (Art. 263), even if the offended party is a descendant of the offender. But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement.

ii. It is mitigating when the offense committed is less serious physical injuries or slight physical injuries, if the offended party is a relative of a lower degree.

iii. It is aggravating if the offended party is a relative of a higher degree of the offender.

c) When the crime is homicide or murder,

relationship is aggravating even if the victim of the crime is a relative of a lower degree.

d) In rape, relationship is aggravating where a

stepfather raped his stepdaughter or in a case where a father raped his own daughter.

3. In crimes against chastity, like acts of

lasciviousness (Art. 336), relationship is always aggravating, regardless of whether the offender is a relative of a higher or lower degree of the offended party.

When the qualification given to the crime is

derived from the relationship between the offender and the offended party, it is neither mitigating nor aggravating, because it is inseparable from and inherent in the offense. (e.g. parricide, adultery and concubinage).

ALTERNATIVE CIRCUMSTANCES Those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission.




Page 25 of 174

INTOXICATION When Intoxication Mitigating And When Aggravating: 1. Mitigating

i. If intoxication is not habitual, or ii. If intoxication is not subsequent to the plan to

commit a felony.

2. Aggravating i. If intoxication is habitual, or ii. If it is intentional (subsequent to the plan to

commit a felony). To Be Entitled To The Mitigating Circumstance Of Intoxication, It Must Be Shown:

1. That at the time of the commission of the criminal act, the accused has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of control, and

2. That such intoxication is not habitual, or subsequent to the plan to commit the felony.

To be mitigating, the accuseds state of intoxication must be proved. Once intoxication is established by satisfactory evidence, in the absence of proof to the contrary, it is presumed to be non-habitual or unintentional.

INSTRUCTION OR EDUCATION As an alternative circumstance it does not

refer only to literacy but more to the level of intelligence of the accused.

Refers to the lack or presence of sufficient intelligence and knowledge of the full significance of ones acts.

Low degree of instruction and education or lack of it is generally mitigating. High degree of instruction and education is aggravating, when the offender took advantage of his learning in committing the crime.

GENERAL RULE: Lack of sufficient education is mitigating.

EXCEPTIONS: 1. Crimes against property (e.g. arson,

estafa, theft, robbery) 2. Crimes against chastity, and 3. Treason because love of country

should be a natural feeling of every citizen, however unlettered or uncultured he may be.

TITLE TWO

PERSONS CRIMINALLY LIABLE FOR FELONIES

ART.16.WHO ARE CRIMINALLY LIABLE Note that accessories are not liable for light

felonies. REASON: In the commission of light felonies, the social wrong as well as the individual prejudice is so small that penal sanction is unnecessary.

The classification of the offenders as principal, accomplice or an accessory is essential under the RPC. The classification maybe applied to special laws only if the latter provides for the same graduated penalties as those provided under the RPC.

There Are Two Parties In All Crimes: 1. Active subject (the criminal)

ateneo 2007 criminal law (book 1).pdf

Documents

new law

branch of municipal

philippines exceptions

impossible crimes

classical theory basis

positivist theory basis

territorial penal laws

construction of penal