60201807 criminal law book i

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San Beda College of Law 1

MEMORY AID IN CRIMINAL LAW

BOOK ONE

CRIMINAL LAW - that branch or divisionof law which defines crimes, treats of their nature and provides for theirpunishment.

CHARACTERISTICS OF CRIMINAL LAW

1. GENERAL - it is binding on allpersons who live or sojourn in thePhilippine territory (Art. 14, NCC)EXCEPTIONS:a) Treaty stipulationsb) Laws of preferential applicationc) Principles of Public International

Law.The following persons areexempted:

a. Sovereigns and otherchief of state

b. Ambassadors,ministers,plenipotentiary, ministerresident and chargesd’affaires.

Consuls, vice-consuls and othercommercial representatives of foreign nation cannot claim theprivileges and immunities accordedto ambassadors and ministers.

2. TERRITORIAL – penal laws of thePhilippines are enforceable onlywithin its territory.EXCEPTIONS: (Art. 2, RPC) i.e.,

enforceable even outsidePhilippine territory.

1) Offense committed while on aPhilippine ship or airship

2) Forging or counterfeiting any

coin or currency note of thePhilippines or obligations andsecurities issued by theGovernment.

3) Introduction into the country of the above-mentioned obligationsand securities.

4) While being public officers oremployees should commit anoffense in the exercise of theirfunctions.

5) Should commit any of the crimesagainst national security and the

law of nations defined in TitleOne of Book Two.EXCEPTION TO THE EXCEPTION:

Penal laws not applicable withinor without Philippine territory if soprovided in treaties and laws of preferential application. (Art.2, RPC)

3. PROSPECTIVEGENERAL RULE: Penal laws cannotmake an act punishable in a mannerin which it was not punishable whencommitted.

EXCEPTION: (it may be appliedretroactively) When the new law isfavorable to the accused.EXCEPTION TO THE EXCEPTION

a) The new law is expresslymade inapplicable to pendingactions or existing causes of actions.b) Offender is a habitualcriminal.

LIMITATIONS ON THE POWER OFCONGRESS TO ENACT PENAL LAWS:

1. No ex post facto law shall beenacted

2. No bill of attainder shall be enacted3. No law that violates equal protection

clause of the constitution shall beenacted

4. No law which imposes cruel andunusual punishments nor excessivefines shall be enacted.

THEORIES IN CRIMINAL LAW1. Classical Theory - basis of criminal liability is human free will.

Under this theory, the purpose of penalty is retribution. The RPC isgenerally governed by this theory.

2. Positivist Theory – basis of criminal liability is the sum of thesocial and economic phenomena towhich the actor is exposed whereinprevention and correction is thepurpose of penalty. This theory isexemplified in the provisionsregarding impossible crimes andhabitual delinquency.

CRIMINAL LAW COMMITTEE CHAIRPERSON: Mark David Martinez EDP: Elaine Masukat ASSISTANTS: Catherine Danao, Albert Rodriguez, ClaroRegino Sampaga, Gizelle Lou Cabahug, Mary Karen Quizon, Leo San Juan, Ma. Victoria Yambao, Ryan Lita, BayaniBrillante, Jr.



2 2005 CENTRALIZED B AR OPERATIONS

3. Eclectic or Mixed Theory –combination of positivist andclassical thinking wherein crimesthat are economic and social in

nature should be dealt in a positivemanner; thus, the law is morecompassionate.

PRELIMINARY TITLE

ART. 2 – APPLICATION OF ITSPROVISIONS

RULES ON VESSELS:1.) Philippine vessel or aircraft.

Must be understood as that which is

registered in the Philippine Bureauof Customs.

2.) On Foreign Merchant Vessels

ENGLISH RULE: Crimes committedaboard a vessel within the territorialwaters of a country are triable inthe courts of such country.EXCEPTION: When the crimes merelyaffect things within the vessel orwhen they only refer to the internalmanagement thereof.

FRENCH RULE:GENERAL RULE: Crimes committedaboard vessel within the territorialwaters of a country are not triablein the courts of said country.EXCEPTION: When their commissionaffects the peace and security of theterritory or when the safety of thestate is endangered.

In the Philippines, we follow theEnglish Rule.

In the case of a foreign warship, thesame is not subject to territoriallaws.

TITLE ONE: FELONIES ANDCIRCUMSTANCES WHICH AFFECTCRIMINAL LIABILITY

Chapter One: Felonies (Arts. 3-10)

ART. 3 – FELONIES

Felonies – are acts or omissionspunishable by the RPC.

ELEMENTS OF FELONIES (GENERAL)1. there must be an act or omission ie,

there must be external acts.2. the act or omission must be

punishable by the RPC.3. the act is performed or the omission

incurred by means of dolo or culpa.

“NULLUM CRIMEN, NULLA POENA SINELEGE” - there is no crime where there isno law punishing it.

CLASSIFICATION OF FELONIESACCORDING TO THE MEANS BY WHICHTHEY ARE COMMITTED:

1. Intentional Felonies – the act isperformed with deliberate intent ormalice.Requisites of DOLO or MALICE:

a. Freedomb. Intelligencec. Criminal Intent

Mistake of Fact – is a misapprehension of fact on the part of the person causinginjury to another. Such person is notcriminally liable as he acted withoutcriminal intent.

Requisites of mistake of fact asa defense:

a. That the act done wouldhave been lawful had the facts beenas the accused believed them to be.b. That the intention of theaccused in performing the act should

be lawful.c. That the mistake mustbe without fault or carelessness onthe part of the accused.

2. Culpable Felonies - performedwithout malice.Requisites of CULPA:

a. Freedom

b. Intelligence

c. Negligence and Imprudence

2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT CHAIRPERSONS

Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), YolandaTolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan

Mangundayao (Political Law), Francis Benedict Reotutar (Labor Law), Romuald Padilla (Civil Law),Charmaine Torres (Taxation Law), Mark David Martinez (Criminal Law), Garny Luisa Alegre (CommercialLaw), Jinky Ann Uy (Remedial Law), Jackie Lou Bautista (Legal Ethics)





REASON FOR PUNSHINGACTS OF NEGLIGENCE: A man mustuse common sense and exercise duereflection in all his acts; it is his duty

to be cautious, careful and prudent.

Mala Prohibita - the class of crimespunishable by SPECIAL LAWS and wherecriminal intent is not, as a rule,necessary, it being sufficient that theoffender has the intent to perpetrate theact prohibited by the special law.

MALA IN SE vs. MALA PROHIBITA

MALA IN SEMALA

PROHIBITA

1. As tomoraltrait of theoffender

The moral traitis considered.Liability willarise only whenthere is dolo orculpa.

The moraltrait of theoffender is notconsidered. Itis enough thatthe prohibitedact wasvoluntarilydone.

2. As touse of goodfaith asadefense

Good faith orlack of criminalintent is a validdefense; unlessthe crime is theresult of culpa.

Good faith isnot a defense.

3. As todegreeof accom-plish-ment of thecrime

The degree of accomplishmentof the crime istaken intoaccount inpunishing theoffender.

The act givesrise to a crimeonly when it isconsummated.

4. As tomitigating and

aggravatingcircum-stances

Mitigating andaggravatingcircumstances

are taken intoaccount inimposing thepenalty.

Mitigating andaggravatingcircumstances

are generallynot taken intoaccount.

5. As todegreeof partici-pation

When there ismore than oneoffender, thedegree of participation of each in thecommission of the crime istaken intoaccount.

Degree of participation isgenerally nottaken intoaccount. Allwhoparticipated inthe act arepunished tothe same

extent.

6. As towhatlaws areviolated

Violation of theRPC (Generalrule)

Violation of Special Laws

(General rule)

Intent distinguished from MotiveINTENT MOTIVE

1. Is the purpose touse a particularmeans to effectsuch result

1. Is the movingpower which impelsone to act

2. Is an element of the crime, except inunintentionalfelonies (culpable)

2. Is NOT anelement of thecrime

3. Is essential inintentional felonies

3. Is essential onlywhen the identity of the perpetrator is indoubt

ART. 4 – CRIMINAL LIABILITY

PAR. 1 - Criminal Liability for a felonydifferent from that intended to becommitted

REQUISITES:a) That an intentional felony has been

committed.b) That the wrong done to the

aggrieved party be the direct,natural and logical consequence of the felony committed.

PROXIMATE CAUSE – that cause, which,in the natural and continuous sequence,unbroken by any efficient interveningcause, produces the injury without whichthe result would not have occurred.

Thus, the person is still criminallyliable in:1. Error in personae- mistake in the

identity of the victim.2. Abberatio ictus – mistake in the

blow.





3. Praeter intentionem – lack of intentto commit so grave a wrong.

PAR. 2 (IMPOSSIBLE CRIME)

REQUISITES:a) That the act performed would be anoffense against persons or property.

b) That the act was done with evilintent.

c) That its accomplishment isinherently impossible, or that themeans employed is eitherinadequate or ineffectual.

d) That the act performed should notconstitute a violation of anotherprovision of the RPC.

ART. 6 – CONSUMMATED,FRUSTRATED & ATTEMPTED

FELONIES

STAGES OF EXECUTION:CONSUMMATED FELONY

When all the elements necessary forits execution and accomplishmentare present.

1. FRUSTRATED FELONYELEMENTS:

a) The offender performs all the acts of execution.

b) All the acts performed wouldproduce the felony as aconsequence.

c) But the felony is not produced.d) By the reason of causes independent

of the will of the perpetrator.

WHAT CRIMES DO NOT ADMIT OFFRUSTRATED STAGE?1) Rape2) Bribery3) Corruption of Public Officers4) Adultery5) Physical Injury

2. ATTEMPTED FELONYELEMENTS:a) The offender commences the

commission of the felony directly byovert acts.

b) He does not perform all the acts of execution which should produce thefelony.

c) The offender’s acts are not stoppedby his own spontaneous desistance.

DESISTANCE - is an absolutory causewhich negates criminal liability becausethe law encourages a person to desistfrom committing a crime.

- this is applicable only inthe attempted stage.

OVERT ACTS – Some physical activity ordeed, indicating intention to commit aparticular crime, more than a mereplanning or preparation, which if carried

to its complete termination following itsnatural course, without being frustratedby external obstacles, nor by voluntarydesistance of the perpetrator willlogically ripen into a concrete offense.

INDETERMINATE OFFENSE: One wherethe purpose of the offender inperforming an act is not certain. Theaccused maybe convicted for a felonydefined by the acts performed by him upto the time of desistance.

2 STAGES IN THE DEVELOPMENT OF ACRIME:1) Internal acts

Such as mere ideas in the mindof person.

Not punishable.2) External acts cover:

a) Preparatory acts - ordinarily notpunished except whenconsidered by law asindependent crimes (e.g. Art.304, Possession of picklocks and

similar tools)b) Acts of Execution - punishable

under the RPC

ART. 7 – LIGHT FELONIES

Light Felonies are punishable onlywhen they have been consummatedEXCEPT: If committed againstpersons or property, punishable evenif not consummated.








Only principals and accomplices areliable, accessories are not liableeven if committed against persons orproperty.

ART. 8 – CONSPIRACY ANDPROPOSAL TO COMMIT FELONY

REQUISITES OF CONSPIRACY1. That 2 or more persons came to an

agreement.2. That the agreement pertains to the

commission of a felony.3. That the execution of the felony was

decided upon.

2 CONCEPTS OF CONSPIRACY1. Conspiracy as a crime by itself.

EXAMPLE: conspiracy to commitrebellion or insurrection, treason,sedition.

2. Conspiracy as a means of committinga crime

a) There is a previous and expressagreement;

b) The participants acted in concertor simultaneously which isindicative of a meeting of the

minds towards a commoncriminal objective. There is animplied agreement.

GENERAL RULE: Mere conspiracy orproposal to commit a felony is notpunishable since they are onlypreparatory actsEXCEPTION: in cases in which the lawspecially provides a penalty therefor,such as in treason, coup d’etat, andrebellion or insurrection

“The act of one is the act of all”GENERAL RULE: When conspiracy isestablished, all who participatedtherein, irrespective of the quantity orquality of his participation is liableequally, whether conspiracy is pre-planned or instantaneous. EXCEPTION:Unless one or some of the conspiratorscommitted some other crime which isnot part of the intended crime.EXCEPTION TO THE EXCEPTION: Whenthe act constitutes a “single indivisibleoffense”.

Conspiracy may beinferred when two or more personsproceed to perform overt acts

towards the accomplishment of thesame felonious objective, with eachdoing his act, so that their actsthough seemingly independent werein fact connected, showing acommon design.

These overt acts mustconsist of:- active participation in the actualcommission of the crime itself, or- moral assistance to his co-conspirators by being present at thetime of the commission of the crime,or- exerting a moral ascendance overthe other co-conspirators by movingthem to execute or implement thecriminal plan (PEOPLE vs. ABUT, etal., GR No. 137601, April 24, 2003)

REQUISITES OF PROPOSAL:

1. That a person has decided to commita felony; and

2. That he proposes its execution to

some other person or persons.

ART. 9 – CLASSIFICATION OFFELONIES ACCORDING TO GRAVITY

Importance of Classification

1. To determine whether these feloniescan be complexed or not.

2. To determine the prescription of thecrime and the prescription of thepenalty.

Grave felonies – are those to which thelaw attaches the capital punishment orpenalties which in any of their periodsare afflictive, in accordance with Art. 25of the Code.

Less grave felonies – are those whichthe law punishes with penalties which intheir maximum period are correctional,in accordance with Art. 25 of the Code.

Light felonies – are those infractions of

law for the commission of which the





penalty of arresto menor or a fine notexceeding 200 pesos, or both, isprovided.

ART. 10 – OFFENSES NOT SUBJECTTO THE PROVISIONS OF THE RPC

GENERAL RULE: RPC provisions aresupplementary to special laws.EXCEPTION:1. Where the special law provides

otherwise; and2. When the provisions of the RPC are

impossible of application, either by

express provision or by necessaryimplication.

Thus, when the special law adopts thepenalties imposed in the RPC, such asreclusión perpetua or reclusióntemporal, the provisions of the RPC onimposition of penalties based on stage of execution, degree of participation, andattendance of mitigating and aggravatingcircumstances may be applied bynecessary implication.

Chapter Two: Justifying Circumstancesand Circumstances Which Exempt fromCriminal Liability (Arts. 11-12)

ART. 11. JUSTIFYINGCIRCUMSTANCES

JUSTIFYING CIRCUMSTANCES – are thosewhere the act of a person is said to be inaccordance with law, so that such personis deemed not to have transgressed thelaw and is free from both criminal andcivil liability. There is no civil liability,except in par. 4 of Art. 11, where thecivil liability is borne by the personsbenefited by the act.

1. SELF- DEFENSE

REQUISITES:

a) Unlawful aggression (condition sinequa non);

b) Reasonable necessity of the meansemployed to prevent or repel it; and

c) Lack of sufficient provocation on thepart of the person defendinghimself.

UNLAWFUL AGGRESSION - is equivalent to an actual

physical assault or, at least- threatened assault of an

immediate and imminent kind which isoffensive and positively strong, showingthe wrongful intent to cause injury.

TEST OF REASONABLENESS – the means

employed depends upon the nature andquality of the (1) weapon used by theaggressor, and (2) his physical condition,character, size and other circumstances,(3) and those of the person defendinghimself, (4) and also the place andoccasion of the assault.

Perfect equality between theweapons used by the one defendinghimself and that of the aggressor is

not required, nor materialcommensurability between themeans of attack and defense.REASON: Because the personassaulted does not have sufficienttranquility of mind to think and tocalculate.

Rights included in self-defense:Self-defense includes not only thedefense of the person or body of the oneassaulted but also that of his rights, the

enjoyment of which is protected by law.Thus, it includes:

1. The right to honor. Hence, a slap onthe face is considered as unlawfulaggression directed against thehonor of the actor (People vs. Sabio,19 SCRA 901).

2. The defense of property rights, onlyif there is also an actual andimminent danger on the person of the one defending ( People vsNarvaez, 121 SCRA 389).








“Stand ground when in the right” - thelaw does not require a person to retreatwhen his assailant is rapidly advancingupon him with a deadly weapon.

Under Republic Act 9262, known as theAnti- Violence against Women and theirChildren Act of 2004:

Victim-survivors who are foundby the courts to be suffering fromBattered Woman Syndrome do not incur any criminal or civil liability notwithstanding the absence of any of the elements for justifyingcircumstances of self-defense under theRPC. (Sec. 26, R.A. No. 9262) The lawprovides for an additional justifying

circumstance.Battered Woman Syndrome –

refers to a scientifically defined patternof psychological and behavioralsymptoms found in women living inbattering relationships as a result of cumulative abuse.

Battery – refers to any act of inflicting physical harm upon the womanor her child resulting to physical andpsychological or emotional distress.

2. DEFENSE OF RELATIVES

REQUISITES:1. Unlawful Aggression;2. Reasonable necessity of the

means employed to prevent orrepel it; and

3. In case the provocation wasgiven by the person attacked,the one making the defense hadno part therein.

RELATIVES THAT CAN BE DEFENDED:1. Spouse2. Ascendants3. Descendants4. Legitimate, natural or adopted

brothers and sisters, or relatives byaffinity in the same degrees.

5. Relatives by consanguinity within thefourth civil degree.

3. DEFENSE OF STRANGER

REQUISITES:1. Unlawful Aggression;

2. Reasonable necessity of the meansemployed to prevent or repel it; and

3. The person defending be not inducedby revenge, resentment or other evil

motive.4. AVOIDANCE OF GREATER EVIL OR INJURY

REQUISITES:1. That the evil sought to be avoided

actually exists:2. That the injury feared be greater

than that done to avoid it; and3. There be no other practical and

less harmful means of preventingit.

No civil liability except when there isanother person benefited in whichcase the latter is the one liable.

Greater evil must not be broughtabout by the negligence orimprudence or violation of law bythe actor.

5. FULFILLMENT OF DUTY; OR LAWFULEXERCISE OF RIGHT OR OFFICE.

REQUISITES:

1. That the accused acted in theperformance of a duty or in thelawful exercise of a right oroffice;

2. That the i njury caused or theoffense committed be thenecessary consequence of thedue performance of duty or thelawful exercise of such right oroffice.

6. OBEDIENCE TO AN ORDER ISSUEDFOR SOME LAWFUL PURPOSE.

REQUISITES:1. That an order has been issued by a

superior.2. That such order must be for some

lawful purpose3. That the means used by the

subordinate to carry out said orderis lawful.

Subordinate is not liable for carryingout an illegal order if he is not aware





of its illegality and he is notnegligent.

ART. 12. EXEMPTINGCIRCUMSTANCES

Exempting Circumstances (or thecircumstances for non-imputability) –are those grounds for exemption frompunishment, because there is wanting inthe agent of the crime any of theconditions which makes the actvoluntary, or negligent.

BASIS:The exemption from punishment is based

on the complete absence of intelligence,freedom of action, or intent, or on theabsence of negligence on the part of theaccused.

JUSTIFYINGCIRCUMSTANCE

EXEMPTINGCIRCUMSTANCE

1. It affects the actnot the actor.

1. It affects the actornot the act.

2. The act isconsidered to havebeen done within thebounds of law;

hence, legitimateand lawful in theeyes of the law.

2. The actcomplained of isactually wrongful,but the actor is not

liable.

3. Since the act isconsidered lawful,there is no crime.

3. Since the actcomplained of isactually wrong thereis a crime but sincethe actor actedwithoutvoluntariness, thereis no dolo nor culpa

4. Since there is nocrime, nor a

criminal, there isalso no criminal orcivil liability. (exceptArt. 11, par. 4)

4. Since there is acrime committed

though there is nocriminal, there iscivil liability.

1. IMBECILITY OR INSANITYInsanity or imbecility exists when thereis a complete deprivation of intelligenceor freedom of the will.

An insane person is not so exempt if it can be shown that he acted duringa lucid interval. But an imbecile is

exempt in all cases from criminalliability.

TWO TESTS OF INSANITY:1. Test of COGNITION – completedeprivation of intelligence incommitting the crime.

2. Test of VOLITION – totaldeprivation of freedom of will.

The defense must provethat the accused was insane at thetime of the commission of the crimebecause the presumption is always infavor of sanity.

Insanity exists when

there is a complete deprivation of intelligence in committing the act.Mere abnormality of the mentalfaculties will not excludeimputability. The accused must be"so insane as to be incapable of entertaining criminal intent." Hemust be deprived of reason andacting without the least discernmentbecause there is a complete absenceof the power to discern or a totaldeprivation of freedom of the will.(PEOPLE vs. ANTONIO, GR No.144266, November 27, 2002)

2. PERSON UNDER NINE YEARS OF AGE

An infant under the age of nine yearsis absolutely and conclusivelypresumed to be incapable of committing a crime.

The phrase “under nine years”should be construed “nine years orless”

3. PERSON OVER NINE YEARS OF AGEAND UNDER 15 ACTING WITHOUTDISCERNMENT.

Must have acted withoutdiscernment.

DISCERNMENT – mental capacity to fullyappreciate the consequences of anunlawful act.Discernment maybe shown by:








a) The manner the crime wascommitted: or

b) The conduct of the offender after itscommission.

4. ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT

Basis: Lack of negligence or intent.

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.

5. A PERSON WHO ACTS UNDER THECOMPULSION OF AN IRRESISTABLEFORCE

ELEMENTS:1. That the compulsion is by meansof physical force.2. That the physical force must beirresistable.3. That the physical force mustcome from a third person.

Basis: complete absence of freedomor voluntariness.

The force must be so irresistable asto reduce the actor to a mereinstrument who act not only withoutwill but against his will.

6. UNCONTROLLABLE FEAR

ELEMENTS:1. That the threat which causes the

fear is of an evil greater than, or atleast equal to, that which he isrequired to commit;2. That it promises an evil of suchgravity and imminence that theordinary man would have succumbedto it.

Duress as a valid defense should bebased on real, imminent, orreasonable fear for one’s life or limband should not be speculative,fanciful, or remote fear.

“ACTUS ME INVITO FACTUS NONEST MEUS ACTUS” – An act done byme against my will is not my act.

7. INSUPERABLE CAUSE.

INSUPERABLE CAUSE – some motivewhich has lawfully, morally or physicallyprevented a person to do what the lawcommands.

ELEMENTS:1. That an act is required by law to be

done.2. That a person fails to perform such

act.

3. That his failure to perform such actwas due to some lawful orinsuperable cause.

Examples:

a. The municipal president detainedthe offended party for three daysbecause to take him to the nearestjustice of the peace required ajourney for three days by boat asthere was no other means of transportation. (US vs. Vicentillo, 19

Phil. 118)The distance which required ajourney for three days wasconsidered an insuperable cause.Note: Under the law, the personarrested must be delivered to thenearest judicial authority at mostwithin 18 hours (now 36 hours, Art.125 RPC); otherwise, the publicofficer will be liable for arbitrarydetention.

b. A mother who at the time of

childbirth was overcome by severedizziness and extreme debility, andleft the child in a thicket were saidchild died, is not liable forinfanticide because it was physicallyimpossible for her to take home thechild. (People vs. Bandian, 63 Phil.530).

The severe dizziness andextreme debility of the womanconstitute an insuperable cause.





ABSOLUTORY CAUSES - are those wherethe act committed is a crime but forreasons of public policy and sentiment,there is no penalty imposed.

Other absolutory causes:1. Spontaneous desistance (Art. 6)2. Accessories who are exempt from

criminal liability (Art. 20)3. Death or physical injuries inflicted

under exceptional circumstances(Art. 247)

4. Persons exempt from criminalliability for theft, swindling andmalicious mischief (Art. 332)

5. Instigation

Entrapment is NOT an absolutorycause. A buy-bust operationconducted in connection with illegaldrug-related offenses is a form of entrapment.

ENTRAPMENT INSTIGATION1. Ways andmeans areresorted to for thecapture of lawbreaker in the

execution of hiscriminal plan.

1. Instigatorinduces the would-be accused tocommit the crime,hence he becomes a

co-principal.

2. not a bar tothe prosecutionand conviction of the lawbreaker

2. it will result inthe acquittal of theaccused.

Chapter Three: Circumstances WhichMitigate Criminal Liability

ART.13 MITIGATING CIRCUMSTANCES

MITIGATING CIRCUMSTANCES – thosewhich if present in the commission of the crime, do not entirely free the actorfrom criminal liability but serve only toreduce the penalty.

One single fact cannot be madethe basis of more than onemitigating circumstance. Hence, amitigating circumstance arising froma single fact, absorbs all the other

mitigating circumstances arisingfrom the same fact.

BASIS : Diminution of either freedom of

action intelligence or intent or on thelesser perversity of the offender.

CLASSES ORDINARY PRIVILEGEDSource Subsections

1-10 of Art.13 (RPC)

Arts. 68, 69and 64 of RPC

As to theeffect

If not offset(by anaggravatingcircumstance) it willoperate tohave the

penaltyimposed atits minimumperiod,provided thepenalty is adivisible one

It operatesto reducethe penaltyby one totwo degreesdependingupon what

the lawprovides

As to offset May beoffset byaggravatingcircums-tance

Cannot beoffset

1. INCOMPLETE JUSTIFYING OR

EXEMPTING CIRCUMSTANCES

Applies, when all the requisitesnecessary to justify the act are notattendant.

But in the case of “incomplete self-defense, defense of relatives, anddefense of a stranger”, unlawfulaggression must be present, it beingan indispensable requisite.

2. UNDER 18, OR OVER 70 YEARS OLD

It is the age of the accused at thetime of the commission of the crimewhich should be determined. Hisage at the time of the trial isimmaterial.

Legal effects of various ages of offender

1. Nine (9) years of age and below –exempting circumstance. (Art. 12,par. 2)








2. Over 9 but not more than 15 –exempting unless, he acted withdiscernment in which case penaltyis reduced to at least two (2)

degrees lower than that imposed.(Art. 12, par. 3; Art. 68, par. 1)

3. Above 15 but under 18 - regardlessof discernment, penalty is reducedby one (1) degree lower than thatimposed. (Art. 68 par. 2)

4. Minor delinquent under 18 years of age, sentence suspended (Art. 192,PD 603 as amended by PD 1179)

5. 18 years or over – full criminalresponsibility.

6. 70 years or over – mitigating, noimposition of death penalty; if already imposed, execution of death penalty is suspended andcommuted.

BASIS: diminution of intelligence

3. NO INTENTION TO COMMIT SOGRAVE A WRONG

Rule for the application:Can be taken into account only when thefacts proven show that there is a notable

and evident disproportion between themeans employed to execute the criminalact and its consequences.

Intention may be ascertained byconsidering:

a) the weapon usedb) the part of the body injuredc) the injury inflicted

BASIS : intent is diminished

4. PROVOCATION OR THREAT

PROVOCATION – any unjust or improperconduct or act of the offended party,capable of exciting, inciting or irritatingany one.

REQUISITES:1. The provocation must be sufficient.2. It must originate from the offended

party.3. The provocation must be immediate

to the commission of the crime bythe person who is provoked.

The threat should not be offensiveand positively strong. Otherwise,the threat to inflict real injury is anunlawful aggression, which may give

rise to self-defense.

5. VINDICATION OF GRAVE OFFENSE

REQUISITES:1. That there be a grave offense done

to the one committing the felony,his spouse, ascendants;descendants, legitimate, natural oradopted brothers or sisters orrelatives by affinity within the samedegrees;

2. That the felony is committed in

immediate vindication of such graveoffense.

“Immediate” allows for a lapse of time unlike in sufficient provocation,as long as the offender is stillsuffering from the mental agonybrought about by the offense to him.

PROVOCATION VINDICATION1. It is madedirectly only to theperson committing

the felony.

1. The graveoffense may becommitted also

against theoffender’s relativesmentioned by law.

2. The cause thatbrought about theprovocation neednot be a graveoffense.

2. The offendedparty must havedone a graveoffense to theoffender or hisrelatives mentionedby law.

3. It is necessarythat the provocationor threatimmediately

preceded the act.

3. The vindicationof the grave offensemay be proximate,which admits of an

INTERVAL of time.

5. PASSION OR OBFUSCATION

It requires that:1. The accused acted upon an impulse.2. The impulse must be so powerful

that it naturally produced passion orobfuscation in him.

REQUISITES:





1. That there be an act, both unlawfuland sufficient to produce such acondition of mind;

2. That said act which produced the

obfuscation was not far removedfrom the commission of the crime bya considerable length of time, duringwhich the perpetrator might recoverhis normal equanimity.

A mitigating circumstance only whenthe same arose from lawfulsentiments.

BASIS: Loss of reasoning and self-control, thereby diminishing theexercise of his will power.

WHEN PASSION OR OBFUSCATION NOTMITIGATING: When committed:

1. In the spirit of lawlessness, or

2. In a spirit of revenge

PASSION/OBFUSCATION

PROVOCATION

- produced by animpulse which maybe caused byprovocation

- the provocationcomes from theinjured party.

- the offense neednot be immediate. Itis only required thatthe influence thereof lasts until themoment the crime iscommitted

-must immediatelyprecede thecommission of thecrime.

7. SURRENDER AND CONFESSION OFGUILT

REQUISITES OF VOLUNTARYSURRENDER:1. That the offender had not been

actually arrested;2. That the offender surrendered

himself to a person in authority or tothe latter’s agent;

3. That the surrender was voluntary.

WHEN SURRENDER VOLUNTARYA surrender to be voluntary must bespontaneous, showing the intent of theaccused to submit himself unconditionally to the authorities, eitherbecause:1. he acknowledges his guilt; or

2. he wishes to save them the troubleand expense necessarily incurred inhis search and capture.

REQUISITES OF VOLUNTARY PLEA OFGUILTY:1. That the offender spontaneously

confessed his guilt.2. That the confession of guilt was

made in open court, that is, beforethe competent court that is to trythe case; and

3. That the confession of guilt wasmade prior to the presentation of

evidence for the prosecution. BASIS: lesser perversity of the

offender.

8. PHYSICAL DEFECT OF OFFENDER

When the offender is deaf anddumb, blind or otherwise sufferingfrom some physical defect,restricting his means of action,defense or communication withothers.

The physical defect must relate tothe offense committed.

BASIS: diminution of element of voluntariness.

9. ILLNESS OF THE OFFENDER

REQUISITES:1. That the illness of the offender

must diminish the exercise of hiswill-power.

2. That such illness should not deprivethe offender of consciousness of hisacts.

Includes illness of the mind notamounting to insanity.

BASIS: diminution of intelligence andintent.

10. SIMILAR AND ANALOGOUSCIRCUMSTANCES








EXAMPLES:1) Impulse of jealousy, similarto passion and obfuscation.2) Testifying for the

prosecution, analogous to plea of guilty

Chapter Four: Circumstances whichAggravate Criminal Liability (Art. 14)

Aggravating circumstances – are thosewhich, if attendant in the commission of the crime, serve to have the penaltyimposed in its maximum period providedby law for the offense or change thenature of the crime.

BASIS:They are based on the greater perversityof the offender manifested in thecommission of the felony as shown by:1. the motivating power itself,2. the place of the commission,3. the means and ways employed4. the time, or5. the personal circumstances of the

offender, or the offended party.

KINDS OF AGGRAVATING

CIRCUMSTANCES:

1. Generic – those which apply to allcrimes, such as:a) Advantage taken of public

position;b) Contempt or insult of public

authorities;c) Crime committed in the dwelling

of the offended party;d) Abuse of confidence or obvious

ungratefulness;

e) Place where crime is committed;f) Nighttime, uninhabited place, orband;

g) Recidivism (reincidencia);h) Habituality (reiteracion);i) Craft, fraud or disguise;j) Unlawful entry;k) Breaking of parts of the house;l) Use of persons under 15 years of

age.

2. Specific – those which apply only tospecific crimes, such as ignominy incrimes against chastity and crueltyand treachery which are applicable

only to crimes against persons.a) Disregard of rank, age or sex duethe offended party;

b) Abuse of superior strength ormeans be employed to weakenthe defense;

c) Treachery (alevosia);d) Ignominy;e) Cruelty;f) Use of unlicensed firearm in the

murder or homicide committedtherewith (RA 8294).

3. Qualifying – those that change thenature of the crime.

Alevosia (treachery) or evidentpremeditation qualifies thekilling of a person to murder.

Art. 248 enumerates thequalifying aggravatingcircumstances which quality thekilling of person to murder.

4. Inherent – those which of necessityaccompany the commission of thecrime, therefore not considered inincreasing the penalty to beimposed, such as:a) Evident premeditation in

robbery, theft, estafa, adulteryand concubinage;

b) Abuse of public office in bribery;c) Breaking of a wall or unlawful

entry into a house in robberywith the use of force upon

things;d) Fraud in estafa;e) Deceit in simple seduction;f) Ignominy in rape.

5. Special – those which arise underspecial conditions to increase thepenalty of the offense and cannot beoffset by mitigating circumstances,such as:a) Quasi-recidivism (Art. 160);b) Complex crimes (Art. 48);





c) Error in personae (Art. 49);d) Taking advantage of public

position and membership in anorganized/syndicated crime

group (Par.1[a], Art. 62).

GENERICAGGRAVATINGCIRCUMSTANCE

QUALIFYINGAGGRAVATINGCIRCUMSTANCE

As to its effectIncreases the penaltywhich should beimposed upon theaccused to themaximum period butwithout exceedingthe limit prescribedby law.

To give the crime itsproper and exclusivename and to placethe author thereof insuch a situation as todeserve no otherpenalty than thatspecially prescribedby law for saidcrime.

As to whether it can be offset by amitigating circumstance

May be offset by amitigatingcircumstance.

Cannot be offset by amitigatingcircumstance

RULES ON AGGRAVATINGCIRCUMSTANCES

1. Aggravating circumstances shall not

be appreciated if:a) They constitute a crime specially

punishable by law, or

b) They are included by the law indefining a crime and prescribinga penalty therefor, shall not betaken into account for thepurpose of increasing thepenalty.

EXAMPLE: “That the crime becommitted by means of …fire,…explosion” (Art. 14, par. 12) is in

itself a crime of arson (Art. 321) or acrime involving destruction (Art.324). It is not to be considered toincrease the penalty for the crime of arson or for the crime involvingdestruction.

2. The same rule shall apply withrespect to any aggravatingcircumstance inherent in the crimeto such a degree that it must of necessity accompany the commissionthereof. (Art. 62, par. 2)

3. Aggravating circumstances whicharise:a) From the moral attributes of the

offender, or

b) From his private relations withthe offended party, orc) From any personal cause,shall only serve to aggravate theliability of the principals,accomplices and accessories as towhom such circumstances areattendant. (Art. 62, par. 3)

4. The circumstances which consista) In the material execution of

the act, orb) In the means employed to

accomplish it,

shall serve to aggravate the liabilityof those persons only who hadknowledge of them at the time of the execution of the act or theircooperation therein. Except whenthere is proof of conspiracy in whichcase the act of one is deemed to bethe act of all, regardless of lack of knowledge of the facts constitutingthe circumstance. (Art. 62, par. 4)

5. Aggravating circumstances,regardless of its kind, should bespecifically alleged in theinformation AND proved as fully asthe crime itself in order to increasethe penalty. (Sec. 9, Rule 110, 2000 Rules of Criminal Procedure)

6. When there is more than onequalifying aggravating circumstancepresent, one of them will beappreciated as qualifying aggravatingwhile the others will be consideredas generic aggravating.

ART. 14 – AGGRAVATINGCIRCUMSTANCES

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

Applicable only when the offender isa public officer.

The offender must have abused hispublic position or at least use of thesame facilitated the commission of the offense.








This circumstance cannot be takeninto consideration in offenses wheretaking advantage of official positionis made by law an integral element

of the crime, such as in malversationunder Art. 217, or in falsification of a document committed by publicofficers under Art. 171.

Taking advantage of a public positionis also inherent in the case of accessories under Art. 19, par. 3(harboring, concealing, or assistingin the escape of the principal of thecrime), and in crimes committed bypublic officers (Arts. 204-245).

Par. 2 – That the crime be committed in contempt of or with insult to the

public authorities.

REQUISITES OF THIS CIRCUMSTANCE: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 theperson against whom the crime iscommitted.

3. The offender knows him to be apublic authority.

4. His presence has not prevented theoffender from committing thecriminal act.

Public authority – sometimes also calleda person in authority, is a public officerwho is directly vested with jurisdiction,that is, a public officer who has thepower to govern and execute the laws;like a mayor, councilor, governor,barangay captain and barangaychairman.

A teacher or professor of a public orrecognized private school is not a“public authority within thecontemplation of this paragraph.While he is a person in authorityunder Art. 152, that status is only forpurposes of Art. 148 (direct assault)and Art. 152 (resistance anddisobedience).

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 thedwelling of the offended party, if the

latter has not given provocation.

The four circumstances enumeratedshould be considered as oneaggravating circumstance only.

Disregard of rank, age or sex isessentially applicable only to crimesagainst person or honor. They arenot taken into account in crimesagainst property.

To be appreciated as an aggravatingcircumstance, there must beevidence that in the commission of the crime, the offender deliberatelyintended to offend or insult the sex,age and rank of the offended party.

Rank of the offended party – is thedesignation or title of distinction used tofix the relative position of the offendedparty in reference to others.

- there must be a difference inthe social condition of the offender andthe offended party.

Age of the offended party – may refer

to old age or the tender age of thevictim.

Sex of the offended party – refers tothe female sex, not to the male sex.

THE AGGRAVATING CIRCUMSTANCE OFDISREGARD OF RANK, AGE, OR SEX ISNOT APPLICABLE IN THE FOLLOWINGCASES:1. When the offender acted with

passion and obfuscation.2. When there exists a relationship

between the offended party and theoffender.3. When the condition of being a

woman is indispensable in thecommission of the crime. (e.g. inparricide, abduction, seduction andrape)

Disregard of sex and age are notabsorbed in treachery becausetreachery refers to the manner of the commission of the crime, whiledisregard of sex and age pertains to





the relationship of the victim(People vs. Lapaz, March 31, 1989).

Dwelling – must be a building or

structure, exclusively used for rest andcomfort. A “combination of a house anda store” or a market stall where thevictim slept is not a dwelling.

- dwelling includesdependencies, the foot of the staircaseand enclosure under the house.

The aggravating circumstance of dwelling requires that the crime bewholly or partly committed thereinor in any integral part thereof.

Dwelling does not mean the

permanent residence or domicile of the offended party or that he mustbe the owner thereof. He must,however, be actually living ordwelling therein even for atemporary duration or purpose.

It is not necessary that the accusedshould have actually entered thedwelling of the victim to commit theoffense; it is enough that the victimwas attacked inside his own house,although the assailant may havedevised means to perpetrate theassault from without.

WHAT AGGRAVATES THE COMMISSIONOF THE CRIME IN ONE’S DWELLING:1. The abuse of confidence which the

offended party reposed in theoffender by opening the door to him;or

2. The violation of the sanctity of thehome by trespassing therein withviolence or against the will of the

owner.

MEANING OF PROVOCATION IN THEAGGRAVATING CIRCUMSTANCE OFDWELLING:The provocation must be:1. Given by the owner of the dwelling,2. Sufficient, and3. Immediate to the commission of the

crime.

If all these conditions are present,the offended party is deemed to

have given the provocation, and thefact that the crime is committed inthe dwelling of the offended party isnot an aggravating circumstance.

REASON: When it is the offendedparty who has provoked the incident,he loses his right to the respect andconsideration due him in his ownhouse.

DWELLING IS NOT AGGRAVATING IN THEFOLLOWING CASES:

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

EXCEPTION: In case of adultery

in the conjugal dwelling, thesame is aggravating. However, if the paramour also dwells in theconjugal dwelling, the applicableaggravating circumstance isabuse of confidence.

2. When robbery is committed by theuse of force upon things, dwelling isnot aggravating because it isinherent.

But dwelling is aggravating in

robbery with violence against or intimidation of persons becausethis class of robbery can becommitted without the necessityof trespassing the sanctity of theoffended party’s house.

3. In the crime of trespass to dwelling,

it is inherent or included by law indefining the crime.

4. When the owner of the dwelling gavesufficient and immediate

provocation. There must exist a close relation

between the provocation madeby the victim and thecommission of the crime by theaccused.

5. The victim is not a dweller of thehouse.

Par. 4. – That the act be committed with

(1) abuse of confidence or








(2) obvious ungratefulness.

Par. 4 provides two aggravatingcircumstances which, if present in

the same case and must beindependently appreciated.

While one may be related to theother in the factual situation in thecase, they cannot be lumpedtogether as abuse of confidencerequires a special confidentialrelationship between the offenderand the victim, but this is not so inungratefulness.

REQUISITES OF ABUSE OF CONFIDENCE:

1. That the offended party had trusted the offender .

2. That the offender abused such trustby committing a crime against theoffended party.

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

Abuse of confidence is inherent inmalversation (Art. 217), qualifiedtheft (Art. 310), estafa by conversionor misappropriation (Art. 315), andqualified seduction (Art. 337).

REQUISITES OF OBVIOUSUNGRATEFULNESS1. That the offended party had trusted

the offender;2. That the offender abused such trust

by committing a crime against theoffended party.

3. That the act be committed withobvious ungratefulness.

The ungratefulness contemplated bypar. 4 must be such clear andmanifest ingratitude on the part of the accused.

Par. 5 – That the crime be committed (1) in the palace of the Chief Executive, or in his presence,or (2) where public authoritiesare engaged in the dischargeof their duties, or (3) in a place dedicated to

religious worship.

Except for the third which requiresthat official functions are beingperformed at the time of the

commission of the crime, the otherplaces mentioned are aggravating

per se even if no official duties oracts of religious worship are beingconducted there.

Cemeteries, however respectablethey may be, are not considered asplace dedicated to the worship of God.

PAR. 5. Wherepublic authorities

are engaged inthe discharge of

their duties

PAR. 2. Contemptor insult to public

authorities

In bothPublic authorities are in the performance of their duties

Place where public duty is performedIn their office. Outside of their

office.

The offended partyMay or may not bethe public authority

Public authorityshould not be the

offended party

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 thecommission of the offense.

When present in the same case andtheir element are distinctly palpableand can subsist independently, they

shall be considered separately.

WHEN NIGHTTIME, UNINHABITED PLACEOR BAND AGGRAVATING:

1. When it facilitated the commissionof the crime; or

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

3. When the offender took advantagethereof for the purpose of impunity.





Nighttime (obscuridad ) – that period of darkness beginning at end of dusk andending at dawn. Nights are from sunsetto sunrise.

It is necessary that the commissionof the crime was begun andcompleted at nighttime.

When the place of the crime isilluminated by light, nighttime is notaggravating.

GENERAL RULE: Nighttime is absorbed intreachery.EXCEPTION: Where both the treacherousmode of attack and nocturnity were

deliberately decided upon in the samecase, they can be considered separatelyif such circumstances have differentfactual bases. Thus:

In People vs. Berdida, et. al.(June 30, 1966), nighttime wasconsidered since it was purposelysought, and treachery wasfurther appreciated because thevictim’s hands and arms weretied together before he wasbeaten up by the accused.

In People vs. Ong, et. al. (Jan.30, 1975), there was treacheryas the victim was stabbed whilelying face up and defenseless,and nighttime was consideredupon proof that it facilitated thecommission of the offense andwas taken advantage of by theaccused.

Uninhabited place (despoblado) – onewhere there are no houses at all; a placeat a considerable distance from town, or

where the houses are scattered at agreat distance from each other.

What actually determines whetherthis aggravating circumstance shouldbe considered against the accused,aside from the distance and isolationof the place, is the reasonablepossibility of the victim receiving orsecuring aid from third persons.

Band (en cuadrilla) – whenever morethan three (i.e., at least four) armed

malefactors shall have acted together inthe commission of an offense, it shall bedeemed committed by a band.

The requisite four armed persons

contemplated in this circumstancemust all be principals by directparticipation who acted together inthe execution of the actsconstituting the crime.

If one of them was a principal byinducement, there would be nocuadrilla but the aggravatingcircumstance of having acted withthe aid of armed men may beconsidered against the inducer if theother two acted as his accomplice.

This aggravating circumstance isabsorbed in the circumstance of abuse of superior strength.

This aggravating circumstance is notapplicable in crimes against chastity.

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

REASON FOR THE AGGRAVATION:The debased form of criminality met inone who, in the midst of a greatcalamity, instead of lending aid to theafflicted, adds to their suffering bytaking advantage of their misfortune todespoil them. Therefore it is necessarythat the offender took advantage of thecalamity or misfortune.

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 partin the commission of the crime,directly or indirectly .

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








This aggravating circumstancerequires that the armed men areaccomplices who take part in thatminor capacity directly or indirectly,

and not when they were merelypresent at the crime scene. Neithershould they constitute a band, forthen the proper aggravatingcircumstance would be cuadrilla.

WHEN THIS AGGRAVATINGCIRCUMSTANCE SHALL NOT BECONSIDERED:1. When both the attacking party and

the party attacked were equallyarmed.

2. When the accused as well as thosewho cooperated with him in thecommission of the crime acted underthe same plan and for the same

purpose.

Par. 6 “By aband”

Par. 8. “With theaid of armed

men”

As to their numberRequires more thanthree armedmalefactors (i.e., atleast four)

At least two

As to their actionRequires that morethan three armedmalefactors shallhave acted togetherin the commission of an offense.

This circumstance ispresent even if oneof the offendersmerely relied ontheir aid, for actualaid is not necessary.

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

employment of a band. If there arethree armed men or less, aid of armed men may be the aggravatingcircumstance.

“Aid of armed men” includes “armedwomen.”

Par. 9 – That the accused is arecidivist.

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 secondoffenses 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 trialfor one crime.”It is employed in its general sense,including the rendering of the judgment.It is meant to include everything that isdone in the course of the trial, fromarraignment until after sentence isannounced by the judge in open court.

Being an ordinary aggravatingcircumstance, recidivism affects onlythe periods of a penalty, except inprostitution and vagrancy (Art. 202)and gambling (PD 1602) whereinrecidivism increases the penalties bydegrees. No other genericaggravating circumstance producesthis effect.

In recidivism it is sufficient that thesucceeding offense be committed

after the commission of thepreceding offense provided that atthe time of his trial for the secondoffense, the accused had alreadybeen convicted of the first offense.

If both offenses were committed onthe same date, they shall beconsidered as only one, hence, theycannot be separately counted inorder to constitute recidivism. Also,judgments of convicted handed downon the same day shall be considered

as only one conviction.REASON: Because the Code requiresthat to be considered as separateconvictions, at the time of his trialfor one crime the accused shall havebeen previously convicted by finaljudgment of the other.

To prove recidivism, it is necessaryto allege the same in the informationand to attach thereto certified copyof the sentences rendered againstthe accused.





Recidivism must be taken intoaccount no matter how many yearshave intervened between the firstand second felonies.

Even if the accused was granted apardon for the first offense, but hecommits another felony embraced inthe same title of the Code, the firstconviction is still counted to makehim a recidivist since pardon doesnot obliterate the fact of his priorconviction.

The rule is different in the caseof amnesty which theoreticallyconsiders the previous transgressionsas not punishable.

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

penalty.

REQUISITES of REITERACION orHABITUALITY:1. That the accused is on trial for an

offense;

2. That he previously served sentencefor another offense to which the lawattaches ana) Equal orb) Greater penalty, orc) For two or more crimes to which

it attaches a lighter penalty thanthat for the new offense; and

3. That he is convicted of the newoffense

REITERACION RECIDIVISM

As to the first offense

It is necessary thatthe offender shallhave served out hissentence for thefirst offense

It is enough that a final judgment hasbeen rendered inthe first offense.

As to the kind of offenses involvedThe previous andsubsequent offensesmust not be embraced in the sametitle of the Code.

Requires that theoffenses beincluded in thesame title of theCode.

THE FOUR FORMS OF REPETITION ARE:

1. Recidivism (par. 9, Art. 14) – where aperson, on separate occasions, isconvicted of two offenses embraced in

the same title in the RPC. This is ageneric aggravating circumstance.

2. Reiteracion or habituality (par. 10,Art. 14) – where the offender has beenpreviously punished for an offense towhich the law attaches an equal orgreater penalty or for two crimes towhich it attaches a lighter penalty. Thisis a generic aggravating circumstance.

3. Multi-recidivism or habitualdelinquency (Art. 62, par, 5) – where a

person within a period of ten years fromthe date of his release or last convictionof the crimes of serious or less seriousphysical injuries, robbery, theft, estafaor falsification, is found guilty of thesaid crimes a third time or oftener. Thisis an extraordinary aggravatingcircumstance.

4. Quasi-recidivism (Art. 160) – Where aperson commits felony before beginningto serve or while serving sentence on aprevious conviction for a felony. This is

a special aggravating circumstance.

Since reiteracion provides that theaccused has duly served thesentence for his previousconviction/s, or is legally consideredto have done so, quasi-recidivismcannot at the same time constitutereiteracion, hence this aggravatingcircumstance cannot apply to aquasi-recidivist.

If the same set of facts constitutesrecidivism and reiteracion, theliability of the accused should beaggravated by recidivism which caneasily be proven.

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

promise.

When this aggravating circumstanceis present, there must be two ormore principals, the one who gave or








offered the price or promise and theone who accepted it, both of whomare principals.

If without previous promise it wasgiven voluntarily after the crime hadbeen committed as an expression of his appreciation for the sympathyand aid shown by the other accused,it should not be taken intoconsideration for the purpose of increasing the penalty.

The price, reward or promise neednot consist of or refer to materialthings or that the same wereactually delivered, it being sufficientthat the offer made by the principalby inducement be accepted by theprincipal by direct participationbefore the commission of theoffense.

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 theuse of any other artifice involvinggreat waste and ruin.

When another aggravatingcircumstance already qualifies thecrime, any of these aggravatingcircumstances shall be considered asgeneric aggravating circumstanceonly.

A killing committed through any of these qualifies the crime to murder,except if arson was resorted to butwithout intent to kill, in view of P.D.

1613 which provides a specificpenalty for that situation.

PAR. 12 “bymeans of

inundation, fire,etc.”

PAR. 10 “on theoccasion of aconflagration,

shipwreck, etc.The crime iscommitted bymeans of any suchacts involving greatwaste or ruin.

The crime iscommitted on theoccasion of acalamity ormisfortune.

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 theculprit has clung to hisdetermination; and

3. A sufficient lapse of time betweenthe determination and execution, toallow him to reflect upon theconsequences of his act and to allowhis conscience to overcome theresolution of his will.

To establish evidentpremeditation, it must be shownthat there was a period sufficient toafford full opportunity formeditation and reflection, a timeadequate to allow the conscience toovercome the resolution of the will,as well as outward acts showing theintent to kill. It must be shown thatthe offender had sufficient time toreflect upon the consequences of hisact but still persisted in his

determination to commit the crime.(PEOPLE vs. SILVA, et. al., GR No.140871, August 8, 2002)

The essence of evidentpremeditation is that the executionof the criminal act is preceded bycool thought and reflection upon theresolution to carry out the criminalintent within a space of timesufficient to arrive at a calmjudgment. (PEOPLE vs. ABADIES, GRNo. 135975, August 14, 2002)

Evident premeditation is presumedto exist when conspiracy is directlyestablished. When conspiracy ismerely implied, evidentpremeditation cannot be presumed,the latter must be proved like anyother fact. (PEOPLE vs. SAPIGAO, et.al., GR No. 144975, June 18, 2003)

Premeditation is absorbed by rewardor promise.





When the offender decides to kill aparticular person and premeditatedon the killing of the latter, but when

he carried out his plan he actuallykilled another person, it cannotproperly be said that hepremeditated on the killing of theactual victim.

But if the offender premeditated onthe killing of any person, it is properto consider against the offender theaggravating circumstance of premeditation, because whoever iskilled by him is contemplated in hispremeditation.

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

Craft (astucia) – involved the use of intellectual trickery or cunning on thepart of the accused.

- it is a chicaneryresorted to by the accused to aid in theexecution of his criminal design. It isemployed as a scheme in the executionof the crime.

Fraud ( fraude) – insidious words ormachinations used to induce the victimto act in a manner which would enablethe offender to carry out his design.

FRAUD CRAFTWhere there is adirect inducementby insidious wordsor machinations,fraud is present.

The act of theaccused done inorder not to arousethe suspicion of thevictim constitutescraft.

According to Justice Regalado, thefine distinctions between “craft”and “fraud” would not really becalled for as these terms in Art. 14are variants of means employed todeceive the victim and if all arepresent in the same case, they shallbe applied as a single aggravatingcircumstance.

Craft and fraud may be absorbed intreachery if they have been

deliberately adopted as the means,methods or forms for thetreacherous strategy, or they mayco-exist independently where they

are adopted for a different purposein the commission of the crime.

For instance:

In People vs. San Pedro (Jan. 22,1980), where the accusedpretended to hire the driver inorder to get his vehicle, it washeld that there was craftdirected to the theft of thevehicle, separate from themeans subsequently used totreacherously kill thedefenseless driver.

In People vs. Masilang (July 11,1986) there was also craft whereafter hitching a ride, theaccused requested the driver totake them to a place to visitsomebody, when in fact they hadalready planned to kill thedriver.

Disguise (disfraz) – resorting to anydevice to conceal identity.

The test of disguise is whether thedevice or contrivance resorted to bythe offender was intended to or didmake identification more difficult,such as the use of a mask or falsehair or beard.

The use of an assumed name in thepublication of a libel constitutesdisguise.

Par. 15 – That (1) advantage be takenof superior strength, or (2) means beemployed to weaken the defense.

Par. 15 enunciates two aggravatingcircumstances, namely, thatadvantage was taken of superiorstrength, or that means wereemployed by the offender to weakenthe defense of the victim, either of which qualifies a killing to murder.








MEANING OF “advantage be taken”:To deliberately use excessive force thatis out of proportion to the means forself-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 nottake advantage of his superiorstrength.

2. When a quarrel arose unexpectedly and the fatal blow was struck at atime when the aggressor and hisvictim were engaged against eachother as man to man.

For abuse of superior strength, thetest is the relative strength of theoffender and his victim, whether ornot he took advantage of his greaterstrength.

When there are several offendersparticipating in the crime, they must

all be principals by directparticipation and their attack againstthe victim must be concerted andintended to be so.

Abuse of superior strength isinherent in the crime of parricidewhere the husband kills the wife. Itis generally accepted that thehusband is physically stronger thanthe wife.

Abuse of superior strength is also

present when the offender uses aweapon which is out of proportion tothe defense available to theoffended party.

“by a band” “abuse of superiorstrength”

The element of band is appreciatedwhen the offense iscommitted by morethan three armedmalefactorsregardless of thecomparativestrength of thevictim or victims.

The gravamen of abuse of superiorityis the takingadvantage by theculprits of theircollective strengthto overpower theirrelatively weakervictim or victims.

Hence, what istaken into accounthere is not thenumber of aggressors nor thefact that they arearmed, but theirrelative physicalstrength vis-a vis

the offended party.

Abuse of superior strength absorbscuadrilla (“band”).

“Means employed to weaken defense”- the offender employs means thatmaterially weakens the resisting powerof the offended party.

EXAMPLES OF “means employed toweaken defense”

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

2. One who, while fighting withanother, suddenly casts sand or dirtupon the latter eyes and thenwounds or kills him.

3. When the offender, who had theintention to kill the victim, made thedeceased intoxicated, therebymaterially weakening the latter’sresisting power.

This circumstance is applicable onlyto crimes against persons, andsometimes against person andproperty, such as robbery withphysical injuries or homicide.

Par. 16 – That the act be committed with treachery (alevosia).

Treachery (alevosia) – is present whenthe offender commits any of the crimesagainst person, employing means,





methods or forms in the executionthereof which tend directly and speciallyto insure its execution, without risk tohimself arising from the defense which

the offended party might make.

REQUISITES OF TREACHERY:

1. That at the time of the attack, thevictim was not in a position todefend himself ; and

2. That the offender consciouslyadopted the particular means,method or form of attack employedby him.

The test of treachery is not only therelative position of the parties but,more specifically, whether or notthe victim was forewarned orafforded the opportunity to make adefense 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 beconsciously adopted.

Treachery is taken into account evenif the crime against the person iscomplexed with another felonyinvolving a different classification inthe Code. Accordingly, in the specialcomplex crime of robbery withhomicide, treachery but can beappreciated insofar as the killing isconcerned.

The suddenness of attack does not,of itself, suffice to support a findingof alevosia, even if the purpose wasto kill, so long as the decision wasmade all of a sudden and thevictim’s helpless position wasaccidental.

Treachery must be appreciated inthe killing of a child even if themanner of attack is not shown. Itexists in the commission of the crimewhen the adult person illegally

attacks a child of tender years andcauses his death.

WHEN MUST TREACHERY BE PRESENT:

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

Thus, even if the deceased wasshot while he was lying woundedon the ground, it appearing thatthe firing of the shot was a merecontinuation of the assault inwhich the deceased waswounded, with no appreciabletime intervening between the

delivery of the blows and thefiring of the shot, it cannot besaid that the crime was attendedby treachery.

When the assault was not continuous, inthat there was interruption, it issufficient that treachery was present atthe moment the fatal blow was given.

Hence, even though in theinception of the aggression

which ended in the death of thedeceased, treachery was notpresent, if there was a break inthe continuity of the aggressionand at the time of the fatalwound was inflicted on thedeceased he was defenseless,the circumstance of treachery must be taken into account.

ALEVOSIA SHOULD BE CONSIDEREDEVEN IF:1. The victim was not predetermined

but there was a generic intent totreacherously kill any first twopersons belonging to a class. (Thesame rule obtains for evidentpremeditation).

2. There was aberratio ictus and thebullet hit a person different fromthat intended. (The rule is differentin evident premeditation).

3. There was error in personae, hencethe victim was not the one intendedby the accused. (A different rule isapplied in evident premeditation).








REASON FOR THE RULE: When thereis treachery, it is impossible foreither the intended victim or theactual victim to defend himself

against the aggression.

TREACHERY ABSORBS:1. Craft2. Abuse of superior strength3. Employing means to weaken the

defense4. Cuadrilla (“band”)5. Aid of armed men6. Nighttime

Par. 17 – That means be employed or circumstances brought about whichadd ignominy to the natural effects of the act.

Ignominy – is a circumstance pertainingto the moral order , which adds disgraceand obloquy to the material injurycaused by the crime.

MEANING OF “which add ignominy tothe natural effects thereof”

The means employed or thecircumstances brought about must tendto make the effects of the crime morehumiliating to victim or to put theoffended party to shame, or add to hismoral suffering. Thus it is incorrect toappreciate ignominy where the victimwas already dead when his body wasdismembered, for such act may not beconsidered to have added to the victim’smoral suffering or humiliation. (Peoplevs. Carmina, G.R. No. 81404, January 28, 1991)

Applicable to crimes againstchastity, less serious physicalinjuries, light or grave coercion, andmurder.

Par. 18 – That the crime be committed after an unlawful entry.

Unlawful entry – when an entrance iseffected by a way not intended for thepurpose.

Unlawful entry must be a means toeffect entrance and not for escape.

REASON FOR AGGRAVATION:

One who acts, not respecting the wallserected by men to guard their propertyand provide for their personal safety,shows a greater perversity, a greateraudacity; hence, the law punishes himwith more severity.

Par. 19 – That as a means to thecommission of a crime, a wall, roof,

floor, door, or window be broken.

This circumstance is aggravating onlyin those cases where the offenderresorted to any of said means toenter the house. If the wall, etc., isbroken in order to get out of theplace, it is not an aggravatingcircumstance.PAR. 19 PAR. 18

It involves thebreaking(rompimiento) of the enumeratedparts of the house.

Presupposes thatthere is no suchbreaking as by entrythrough thewindow.

If the offender broke a window toenable himself to reach a purse withmoney on the table near thatwindow, which he took while hisbody was outside of the building, thecrime of theft was attended by thisaggravating circumstance. It is notnecessary that the offender shouldhave entered the building.

Par. 20 – That the crime be committed (1) with the aid of persons

under fifteen years of age, or

(2) by means of motor vehicles, airships, or other similar means.

TWO DIFFERENT CIRCUMSTANCESGROUPED IN THIS PARAGRAPH:

1. With the aid of persons under fifteenyears of age:

Tends to repress, so far aspossible, the frequent practiceresorted to by professionalcriminals to avail themselves of





minors taking advantage of theirirresponsibility .

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

Intended to counteract the great facilities found by moderncriminals in said means tocommit crime and flee and abscond once the same iscommitted .

Use of motor vehicle isaggravating where the accused

purposely and deliberately usedthe motor vehicle in going to theplace of the crime, in carryingaway the effects thereof, and in

facilitating their escape.

MEANING OF “or other similar means”Should be understood as referring tomotorized vehicles or other efficientmeans of transportation similar toautomobile or airplane.

Par. 21 – That the wrong done in thecommission of the crime bedeliberately augmented by causingother wrong not necessary for itscommission.

Cruelty – there is cruelty when theculprit enjoys and delights in making hisvictim suffer slowly and gradually,causing unnecessary physical pain in theconsummation of the criminal act.

REQUISITES OF CRUELTY:

1. That the injury caused bedeliberately increased by causingother wrong;

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

Cruelty is not inherent in crimesagainst persons. In order for it to beappreciated, there must be positiveproof that the wounds found on thebody of the victim were inflictedwhile he was still alive in orderunnecessarily to prolong physicalsuffering.

If the victim was already dead whenthe acts of mutilation were beingperformed, this would also qualifythe killing to murder due to

outraging of his corpse.

IGNOMINY(PAR.17)

CRUELTY (PAR.21)

Involves moralsuffering

Refers to physicalsuffering

Unlike mitigating circumstances(par. 10, Art. 13), there is noprovision for aggravatingcircumstances of a similar oranalogous character.

ART. 15 – ALTERNATIVECIRCUMSTANCES

Alternative circumstances – are thosewhich must be taken into considerationas aggravating or mitigating according tothe nature and effects of the crime andthe other conditions attending itscommission.

BASIS:The nature and effects of the crime and

the other conditions attending itscommission.

THE ALTERNATIVE CIRCUMSTANCESARE:1. Relationship;2. Intoxication; and3. Degree of instruction and education

of the offender.

RELATIONSHIPThe alternative circumstance of relationship shall be taken into

consideration when the offended party isthe –

a) Spouse,b) Ascendant,c) Descendant,d) Legitimate, natural, or adopted

brother or sister, ore) Relative by affinity in the same

degree of the offender.

OTHER RELATIVES INCLUDED:








1. The relationship of stepfather orstepmother and stepson orstepdaughter.REASON: It is the duty of the

stepparents to bestow upon theirstepchildren a mother’s/father’saffection, care and protection.

2. The relationship of adopted parentand adopted child.

But the relationship of uncle andniece is not covered by any of therelationship mentioned.

WHEN RELATIONSHIP MITIGATING ANDWHEN AGGRAVATING:

1. As a rule, relationship is mitigatingin 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, orII. when the offender and the

offended party are relativesof the same level (e.g.brothers)

b) But when it comes to physicalinjuries:

i. It is aggravating when thecrime involves serious

physical injuries (Art. 263),even if the offended party isa descendant of theoffender. But the seriousphysical injuries must not beinflicted by a parent uponhis child by excessivechastisement.

ii. It is mitigating when theoffense committed is lessserious physical injuries or slight physical injuries, if the offended party is arelative of a lower degree.

iii. It is aggravating if theoffended party is a relative

of a higher degree of theoffender.

c) When the crime is homicide ormurder, relationship is

aggravating even if the victim of the crime is a relative of a lowerdegree.

d) In rape, relationship isaggravating where a stepfatherraped his stepdaughter or in acase where a father raped hisown daughter.

3. In crimes against chastity, like actsof lasciviousness (Art. 336),relationship is always aggravating,regardless of whether the offender isa relative of a higher or lower

degree of the offended party.

When the qualification given to thecrime is derived from therelationship between the offenderand the offended party, it is neithermitigating nor aggravating, becauseit is inseparable from and inherentin the offense. (e.g. parricide,adultery and concubinage).

WHEN INTOXICATION MITIGATING AND

WHEN AGGRAVATING:1. Mitigating –

i. If intoxication is not habitual, or

ii. If intoxication is not subsequentto the plan to commit a felony.

2. Aggravating –

i. If intoxication is habitual, or

ii. If it is intentional (subsequent tothe plan to commit a felony).

TO BE ENTITLED TO THE MITIGATINGCIRCUMSTANCE OF INTOXICATION, IT

MUST BE SHOWN:1. That at the time of the commissionof the criminal act, the accused hastaken such quantity of alcoholicdrinks as to blur his reason anddeprive him of a certain degree of control, and

2. That such intoxication is nothabitual, or subsequent to the planto commit the felony.

To be mitigating, the accused’s stateof intoxication must be proved. Onceintoxication is established by

satisfactory evidence, in the absence





of proof to the contrary, it ispresumed to be non-habitual orunintentional.

Instruction or education – as an alternative circumstance,does not refer only to literary but moreto the level of intelligence of theaccused.

- refers to the lack of sufficientintelligence and knowledge of the fullsignificance of one’s acts.

- Low degree of instruction andeducation or lack of it is generallymitigating. High degree of instructionand education is aggravating, when theoffender took advantage of his learning

in committing the crime.

GENERAL RULE: Lack of sufficienteducation is mitigating.EXCEPTIONS:1. Crimes against property (e.g. arson,

estafa, theft, robbery)2. Crimes against chastity, and3. Treason – because love of country

should be a natural feeling of everycitizen, however unlettered oruncultured he may be.

TITLE TWO: PERSONS CRIMINALLYLIABLE FOR FELONIES

ART. 16 – WHO ARE CRIMINALLYLIABLE

FOR GRAVE AND LESS GRAVE FELONIES1. Principals2. Accomplices3. Accessories

FOR LIGHT FELONIES1. Principals2. Accomplices

Accessories are not liable for lightfelonies.REASON: In the commission of lightfelonies, the social wrong as well asthe individual prejudice is so smallthat penal sanction is deemed notnecessary for accessories.

The classification of the offenders asprincipal, accomplice, or anaccessory is essential under the RPC.The classification maybe applied to

special laws only if the latterprovides for the same graduatedpenalties as those provided underthe RPC.

TWO PARTIES IN ALL CRIMES

1. Active subject (the criminal)

Art. 16 enumerates the activesubjects of the crime.

2. Passive subject (the injured party)

Is the holder of the injured right:the man, the juristic person, thegroup, and the State.

Only natural persons can be theactive subject of crime because of the highly personal nature of thecriminal responsibility.

However, corporation andpartnership can be a passive subjectof a crime.

Corpses and animals cannot be

passive subjects because they haveno rights that may be injured.EXCEPTION: Under Art. 253, thecrime of defamation may becommitted if the imputation tends toblacken the memory of one who isdead .

This article applies only when theoffenders are to be judged by theirindividual, and not collective,liability.

ART. 17 PRINCIPALS

THE FOLLOWING ARE PRINCIPALS:

1. Those who take a direct part in theexecution of the act (PRINCIPAL BYDIRECT PARTICIPATION)

2. Those who directly force or induceothers to commit it (PRINCIPAL BYINDUCTION)








3. Those who cooperate in thecommission of the offense byanother act without which it wouldnot have been accomplished

(PRINCIPAL BY INDISPENSABLECOOPERATION).

Par. 1 – Principals by direct participation

REQUISITES:

1. That they participated in thecriminal resolution; and

2. That they carried out their plan and personally took part in its executionby acts which directly tended to the

same end.

MEANING OF “personally took part inits execution”That the principal by direct participationmust be at the scene of the commissionof the crime, personally taking part in itsexecution.

Par. 2 – Principals by induction

REQUISITES1. That the inducement be made

directly with the intention of procuring the commission of thecrime; and

2. That such inducement be thedetermining cause of the commissionof the crime by the materialexecutor.

One cannot be held guilty of havinginstigated the commission of thecrime without first being shown thatthe crime was actually committed(or attempted) by another.

Thus, there can be no principalby inducement (or by indispensablecooperation) unless there is aprincipal by direct participation. Butthere can be a principal by directparticipation without a principal byinducement (or by indispensablecooperation).

TWO WAYS OF BECOMING PRINCIPAL BYINDUCTION:1. By directly forcing another to

commit a crime by –

a) Using irresistible force.b) Causing uncontrollable fear.

In these cases, there is noconspiracy, not even a unity of

criminal purpose and intention.Only the one using the force orcausing the fear is criminallyliable. The material executor isnot criminally liable because of Art. 12, pars. 5 and 6 (exemptingcircumstances)

2. By directly inducing another tocommit a crime by –a) Giving of price, or offering of

reward or promise.

The one giving the price oroffering the reward or

promise is a principal byinducement while the onecommitting the crime inconsideration thereof is aprincipal by directparticipation. There iscollective criminalresponsibility.

b) Using words of command

The person who used thewords of command is aprincipal by inducementwhile the person whocommitted the crimebecause of the words of command is a principal bydirect participation. Thereis also collective criminalresponsibility.

The inducement must precede theact induced and must be soinfluential in producing the criminalact that without it, the act wouldnot have been performed.

If the person who actuallycommitted the crime had reason of his own to commit the crime, itcannot be said that the inducementwas influential in producing thecriminal act.

PRINCIPAL BYINDUCEMENT

OFFENDER WHOMADE PROPOSAL

TO COMMIT AFELONY





In both

There is an inducement to commit a crime

When liable

Becomes liable onlywhen the crime iscommitted by theprincipal by directparticipation.

The mere proposal tocommit a felony ispunishable in treasonor rebellion.However, the personto whom theproposal is madeshould not committhe crime,otherwise, theproponent becomesa principal byinducement.

What kind of crime involved

Involves any crime The proposal to bepunishable mustinvolve only treasonor rebellion.

EFFECTS OF ACQUITTAL OF PRINCIPALBY DIRECT PARTICIPATION UPONLIABILITY OF PRINCIPAL BYINDUCEMENT:1. Conspiracy is negatived by the

acquittal of co-defendant.2. One cannot be held guilty of having

instigated the commission of a crimewithout first being shown that thecrime has been actually committedby another. But if the one charged as

principal by direct participationis acquitted because he actedwithout criminal intent ormalice, his acquittal is not aground for the acquittal of theprincipal by inducement.

REASON FOR THE RULE: Inexempting circumstances, suchas when the act is not voluntarybecause of lack of intent on thepart of the accused, there is acrime committed, only that theaccused is not a criminal.

Par. 3 – Principal by indispensablecooperation

REQUISITES:

1. Participation in the criminalresolution, that is, there is eitheranterior conspiracy or unity of criminal purpose and intention

immediately before the commissionof the crime charged; and2. Cooperation in the commission of

the offense by performing anotheract, without which it would not havebeen accomplished.

MEANING OF “cooperation in thecommission of the offense”Means to desire or wish in common athing. But that common will or purpose

does not necessarily mean previousunderstanding, for it can be explained orinferred from the circumstances of eachcase.

If the cooperation is notindispensable, the offender is onlyan accomplice.

COLLECTIVE CRIMINAL RESPONSIBILITY

This is present when the offendersare criminally liable in the samemanner and to the same extent. Thepenalty to be imposed must be thesame for all.

Principals by direct participationhave collective criminalresponsibility. Principals byinduction, except those who directlyforced another to commit a crime,and principals by direct participationhave collective criminalresponsibility. Principals byindispensable cooperation have

collective criminal responsibilitieswith the principals by directparticipation.

INDIVIDUAL CRIMINAL RESPONSIBILITY

In the absence of any previousconspiracy, unity of criminal purposeand intention immediately beforethe commission of the crime, orcommunity of criminal design, thecriminal responsibility arising fromdifferent acts directed against oneand the same person is individual








and not collective, and each of theparticipants is liable only for the actcommitted by him.

ART. 18 ACCOMPLICESAccomplices are persons who, not

acting as principals, cooperate in theexecution of the offense by previous andsimultaneous acts, which are notindispensable to the commission of thecrime.

They act as mere instruments whoperform acts not essential to theperpetration of the offense.

REQUISITES:1. That there be community of design;

that is, knowing the criminal designof the principal by directparticipation, he concurs with thelatter his purpose;

2. That he cooperates in the executionof the offense by previous orsimultaneous acts, with the intentionof supplying material or moral aid inthe execution of the crime in anefficacious way; and

3. That there be a relation between the

acts done by the principal and thoseattributed to the person charged asan accomplice.

Before there could be anaccomplice, there must be aprincipal by direct participation.

The person charged as an accompliceshould not have inflicted a mortalwound. If he inflicted a mortalwound, he becomes a principal bydirect participation.

In case of doubt, the participation of the offender will be considered thatof an accomplice rather than that of a principal.

ART. 19 ACCESSORIESAccessories are those who –

- having knowledge of the commission of the crime, and

- without havingparticipated therein

either as principals

or accomplices, takepart subsequent toits commission in anyof the following acts:

1. By profiting themselves or assistingthe offender to profit by the effectsof the crime.

2. Assisting the offender to profit bythe effects of the crime.

3. By concealing or destroying the bodyof the crime to prevent its discovery.

In profiting by the effects of thecrime, the accessory must receivethe property from the principal. Heshould not take it without the

consent of the principal. If he took itwithout the consent of the principal,he is not an accessory but a principalin the crime of theft.

TWO CLASSES OF ACCESSORIESCONTEMPLATED IN PAR. 3 OF ART. 19a) Public officers who harbor, conceal

or assist in the escape of theprincipal of any crime (not lightfelony) with abuse of his publicfunctions.

Requisites:1. The accessory is a public officer.2. He harbors, conceals, or assists

in the escape of the principal.3. The public officer acts with

abuse of his public functions.4. The crime committed by the

principal is any crime, providedit is not a light felony.

b) Private persons who harbor, concealor assist in the escape of the authorof the crime who is guilty of treason,parricide, murder, or attemptsagainst the life of the President, orwho is known to be habitually guiltyof some other crime.

Requisites:1. The accessory is a private

person.2. He harbors, conceals or assists in

the escape of the author of thecrime.

3. The crime committed by the

principal is either:





i. Treason,ii. Parricide,iii. Murder,iv. An attempt against the life of

the President, orv. That the principal is known tobe habitually guilty of someother crime.

Where the alleged principal isacquitted, it is neither proper norpossible to convict the defendant asan accessory. The responsibility of the accessory is subordinate to thatof the principal in a crime

HOWEVER, conviction of anaccessory is possible notwithstanding

the acquittal of the principal, if thecrime was in fact committed, butthe principal was not held liable,because of an exemptingcircumstance (Art. 12), such asinsanity or minority.

Neither the letter nor the spirit of the law requires that the principalbe convicted before one may bepunished as an accessory. As long asthe corpus delicti is proved and theaccessory’s participation as such isshown, he can be held criminallyresponsible and meted out thecorresponding penalty (Inovero vs.Coronel, CA, 65 O.G. 3160).

The prescribed acts of the accessoryunder par. 2 must have beenintended to prevent the discovery of the crime, hence, mere silence doesnot make one an accessory. If,however, the crime involved is aconspiracy to commit treason, his

silence may hold him liable formisprision of treason (Art. 116) butas a principal thereof.

Where the accused misleads theauthorities by giving them falseinformation, such act is equivalentto concealment and he should beheld as an accessory.

Anti-Fencing Law of 1979Pres. Decree 1612

Fencing – is an act, with intent to gain,of buying, selling, receiving, possessing,keeping, or in any other manner dealingin anything of value which a person

knows or should have known to bederived from the proceeds of the crimeof robbery or theft.

Fence – is a person who commits the actof fencing. A fence who receives stolenproperty as above-provided is not anaccessory but a principal in the crimedefined in and punished by the Anti-Fencing Law.Mere possession of anything of valuewhich has been the subject of robbery ortheft shall be prima facie evidence of

fencing.

ART. 20 – ACCESSORIES WHO AREEXEMPT FROM CRIMINAL LIABLITY

The exemption provided for in thisarticle is based on the ties of bloodand the preservation of thecleanliness of one’s name, whichcompels one to conceal crimescommitted by relatives so near asthose mentioned in this article.

AN ACCESSORY IS EXEMPT FROMCRIMINAL LIABLITY WHEN THEPRINCIPAL IS HIS –1. spouse, or2. ascendant, or3. descendant, or4. legitimate, natural or adopted

brother, sister or relative by affinitywithin the same degree.

ACCESSORY IS NOT EXEMPT FROMCRIMINAL LIABILITY EVEN IF THEPRINCIPAL IS RELATED TO HIM, IF SUCHACCESSORY –1. profited by the effects of the crime,

or2. assisted the offender to profit by the

effects of the crime.REASON: Because such acts areprompted not by affection but by adetestable greed.

Public officer contemplated in par. 3of Art. 19 is exempt by reason of








relationship to the principal, even if such public officer acted with abuseof his official functions.REASON: Ties of blood or relationship

constitutes a more powerfulincentive than the call of duty.

P.D. 1829 penalizes the act of anyperson who knowingly or willfullyobstructs, impedes, frustrates or delaysthe apprehension of suspects and theinvestigation and prosecution of criminalcases.

The benefits of the exception in Art.20 do not apply to PD 1829.

TITILE THREE: PENALTIES

Chapter One: Penalties in General(Arts. 21-24)

Penalty – is the suffering that is inflictedby the State for the transgression of thelaw.

DIFFERENT JURIDICAL CONDITIONS OFPENALTY1. Must be productive of suffering,

without however affecting the

integrity of the human personality.2. Must be commensurate with the

offense – different crimes must bepunished with different penalties.

3. Must be personal – no one should bepunished for the crime of another.

4. Must be legal – it is the consequenceof a judgment according to law.

5. Must be certain – no one may escapeits effects.

6. Must be equal for all.7. Must be correctional.

PURPOSE OF THE STATE IN PUNISHINGCRIMES

The State has an existence of its ownto maintain, a conscience to assert, andmoral principles to be vindicated. Penaljustice must therefore be exercised bythe State in the service and satisfactionof a duty, and rests primarily on themoral rightfulness of the punishmentinflicted.

The basis of the right to punishviolations of penal law is the policepower of the State.

THEORIES JUSTIFYING PENALTY:1. Prevention – to prevent or suppress

the danger to the State arising fromthe criminal act of the offender.

2. Self-defense – so as to protectsociety from the threat and wronginflicted by the criminal.

3. Reformation – the object of punishment in criminal cases is tocorrect and reform the offender.

4. Exemplarity – the criminal ispunished to serve as an example todeter others from committingcrimes.

5. Justice – that crime must bepunished by the State as an act of retributive justice, a vindication of absolute right and moral lawviolated by the criminal.

THREE-FOLD PURPOSE OF PENALTYUNDER THE CODE:

1. Retribution or expiation – thepenalty is commensurate with thegravity of the offense.

2. Correction or reformation – shown bythe rules which regulate theexecution of the penalties consistingin deprivation of liberty.

3. Social defense – shown by itsinflexible severity to recidivists andhabitual delinquents.

ART. 21 – PENALTIES THAT MAY BEIMPOSED

A felony shall be punishable onlyby the penalty prescribed by law at thetime of its commission.

It is a guaranty to the citizen of this country that no acts of his,will be considered criminal untilthe Government has made it soby law and has provided apenalty.

REASON: Because a law cannot

be rationally obeyed unless it is





first shown, and a man cannot beexpected to obey an order thathas not been given.

ART. 22 – RETROACTIVE EFFECT OFPENAL LAWS

GENERAL RULE: Penal laws areapplied prospectively.EXCEPTION: When retrospectiveapplication will be favorable to theperson guilty of a felony; Providedthat:

1. The offender is NOT a habitualcriminal (delinquent) under Art.

62(5);2. The new or amendatory law does

NOT provide against its retrospectiveapplication.

Habitual delinquent – a person who,within a period of ten years from thedate of his release or last conviction of the crimes of serious or less seriousphysical injuries, robbery, theft, estafa,or falsification, is found guilty of anysaid crimes a third time or oftener.

EX POST FACTO LAWAn act which when committed was not acrime, cannot be made so by statutewithout violating the constitutionalinhibition as to ex post facto laws. An expost facto law is one which:1. Makes criminal an act done before

the passage of the law and whichwas innocent when done;

2. Aggravates a crime, or makes itgreater than it was, whencommitted;

3. Changes the punishment and inflictsa greater punishment than the lawannexed to the crime whencommitted;

4. Alters the legal rules of evidence,and authorizes conviction upon a lessor different testimony than the lawrequired at the time of thecommission of the offense;

5. Assumes to regulate civil rights andremedies only, in effect imposing apenalty or deprivation of a right for

something which when done waslawful; and

6. Deprives a person accused of a crimeof some lawful protection to which

he has become entitled, such as theprotection of a former conviction oracquittal, or a proclamation of amnesty.

If retroactive effect of a newlaw is justified, it shall applyto the defendant even if heis:

1. presently on trialfor the offense;2. has already beensentenced but service of which

has not begun; or3. already servingsentence

The retroactive effect of criminalstatutes does not apply to theculprit’s civil liability.REASON: The rights of offendedpersons or innocent third parties arenot within the gift of arbitrarydisposal of the State.

The provisions of Art. 22 areapplicable even to special lawswhich provide more favorableconditions to the accused.

Criminal liability under the repealedlaw subsists:1. When the provisions of the former

law are reenacted; or

The right to punish offensescommitted under an old penallaw is not extinguished if theoffenses are still punishable in

the repealing penal law.2. When the repeal is by implication; or

When a penal law, whichimpliedly repealed an old law, isitself repealed, the repeal of therepealing law revives the priorpenal law, unless the languageof the repealing statute providesotherwise.

If the repeal is absolute, criminalliability is obliterated.

3. When there is a saving clause.








ART. 23- EFFECT OF PARDON BY THEOFFENDED PARTY

GENERAL RULE – Pardon by the offendedparty does not extinguish the criminalliability of the offender. REASON: Acrime committed is an offense againstthe State. Only the Chief Executive canpardon the offenders.

EXCEPTION - Pardon by the offendedparty will bar criminal prosecution in thefollowing crimes:

Adultery and Concubinage (Art.344, RPC)

– EXPRESS or IMPLIED pardonmust be given by offended party to BOTHoffenders.

- Pardon must be given PRIOR toinstitution of criminal action.

Seduction, Abduction, Acts of Lasciviousness (Art. 344, RPC)

– EXPRESS pardon given byoffended party or her parents orgrandparents or guardian

- Pardon must be given PRIOR tothe institution of the criminal action.However, marriage between theoffender and the offended party EVENAFTER the institution of the criminalaction or conviction of the offender willextinguish the criminal action or remitthe penalty already imposed against theoffender, his co-principals, accomplicesand accessories after the fact.

Rape (as amended by R.A. 8353)- The subsequent valid marriage

between the offender and the offendedparty shall extinguish criminal liability orthe penalty imposed. In case the legalhusband is the offender, subsequentforgiveness by the wife as offendedparty shall also produce the same effect.

Pardon by the offended party underArt. 344 is ONLY A BAR to criminalprosecution; it is NOT a ground forextinguishment of criminal liability.

Nevertheless, civil liability may beextinguished by the EXRESS WAIVERof the offended party.

AN OFFENSE CAUSESTWO CLASSES OF INJURIES:

SOCIAL INJURY PERSONAL INJURYProduced by thedisturbance andalarm which are the

outcome of theoffense.

Caused to the victimof the crime whosuffered damage

either to his person, tohis property, to hishonor or to herchastity.

Is sought to berepaired throughthe imposition of the correspondingpenalty.

Is repaired throughindemnity.

The offended partycannot pardon theoffender so as torelieve him of the

penalty.

The offended partymay waive theindemnity and theState has no reason to

insist in its payment.

ART. 24 – MEASURES OF PREVENTIONOR SAFETY WHICH ARE NOT

CONSIDERED PENALTIES

THE FOLLOWING ARE NOT CONSIDEREDAS PENALTIES:1. The arrest and temporary detention

of accused persons, as well as theirdetention by reason of insanity or

imbecility, or illness requiring theirconfinement in a hospital.

2. The commitment of a minor to anyof the institutions mentioned in Art.80 (now Art. 192, PD No. 603) andfor the purposes specified therein.

3. Suspension from the employment orpublic office during the trial or inorder to institute proceedings.

4. Fines and other corrective measureswhich, in the exercise of theiradministrative or disciplinary





powers, superior officials mayimpose upon their subordinates.

5. Deprivation of rights and thereparations which the civil law may

establish in penal form.

Reasons why they are not penalties:1. Because they are not imposed as a

result of judicial proceedings. Thosementioned in paragraphs 1, 3 and 4are merely preventive measuresbefore conviction of offenders.

2. The offender is not subjected to ormade to suffer these measures inexpiation of or as punishment for acrime.

Par. 1 does not refer to theconfinement of an insane or imbecilewho has not been arrested for acrime. It refers to “accused persons”who are detained “by reason of insanity or imbecility.”

Paragraphs 3 and 4 refer toadministrative suspension andadministrative fines and not tosuspension or fine as penalties forviolations of the RPC.

The deprivations of rightsestablished in penal form by the civillaws is illustrated in the case of parents who are deprived of theirparental authority if found guilty of the crime of corruption of theirminor children, in accordance with

Art. 332 of the Civil Code.

Where a minor offender wascommitted to a reformatorypursuant to Art. 80 (now, PD 603),and while thus detained he commitsa crime therein, he cannot beconsidered a quasi-recidivist sincehis detention was only a preventivemeasure, whereas a quasi-recidivismpresupposes the commission of acrime during the service of thepenalty for a previous crime.

Chapter Two: Classification of Penalties(Arts. 25-26)

ART. 25 – PENALTIES WHICH MAY BEIMPOSED

The scale in Art. 25 is only a generalclassification of penalties based ontheir severity, nature and subjectmatter.

The scale of penalties in Art. 70 isprovided for successive service of sentences imposed on the sameaccused, in consideration of their

severity and natures. The scales in Art. 71 are for the

purpose of graduating the penaltiesby degrees in accordance with therules in Art. 61.

CLASSIFICATION OF PENALTIES UNDER ARTICLE 25:a) Based on their severity or gravity

1. Capital,2. Afflictive,3. Correctional,4. Light

This classification corresponds tothe classification of felonies inArt. 9, into grave, less grave andlight.

b) Based on their nature1. Principal penalties – those

expressly imposed by the courtin the judgment of conviction.May be further classified basedon divisibility

i. Divisible – are those thathave fixed duration and

are divisible into threeperiods.ii. Indivisible – are those

which have no fixedduration. These are:1) Death2) Reclusión perpetua3) Perpetual absolute

or specialdisqualification

4) Public censure








2. Accessory penalties – are thosethat are deemed included in theprincipal penalties.

c) Based on subject matter1. Corporal (death).2. Deprivation of freedom

(reclusion, prision, arresto).3. Restriction of freedom

(destierro).4. Deprivation of rights

(disqualification and suspension).5. Pecuniary (fine).

Perpetual or temporary absolutedisqualification, perpetual ortemporary special disqualification,

and suspension may be principal oraccessory penalties.EXAMPLES:

I. Perpetual absolutedisqualification is a principalpenalty in prevaricacion (Art.204) and perpetual specialdisqualification, inmalversation (Art. 217).

II. Temporary absolutedisqualification is a principalpenalty when the accessoryacts with abuse of public

functions (Art, 19[3] and Art.58) and temporary specialdisqualification, in directbribery (Art. 206).

III. Suspension is a principalpenalty in rendition of unjustinterlocutory orders (Art. 206).

Bond to keep the peace is imposedonly in the crime of threats (Art.284), either grave (Art. 282) or light(Art. 283).

ART. 26 FINE – WHEN AFFLICTIVE,CORRECTIONAL OR LIGHT

FINE IS:1. Afflictive – over P6,000.002. Correctional – P200.00 to P6,000.003. Light penalty – less than P200.00

Same basis may be applied toBond to keep the peace by

analogy.

This article determines theclassification of a fine whetherimposed as a single or as an

alternative penalty for a crime.

The rule herein does not applywhere the fine involved is in acompound penalty, that is, it isimposed in conjunction withanother penalty.

Where the fine in question is exactlyP200, under Art. 9 it is a lightfelony, hence the felony involved isa light felony; whereas under Art.26, it is a correctional penalty,

hence the offense involved is a lessgrave felony. It has been held thatthis discrepancy should be resolvedliberally in favor of the accused,hence Art. 9 prevails over Art. 26(People vs. Yu Hai, 99 Phil. 725).

HOWEVER, according to JusticeRegalado there is no suchdiscrepancy. What is really in issue isthe prescription of the offense vis-a-vis the prescription of the penalty,the former being the forfeiture of the right of the State to prosecutethe offender and the latter being theloss of its power to enforce thejudgment against the convict.

Chapter Three: Duration and Effects of Penalties (Arts. 27-45)

Section One – Duration of Penalties

ART. 27 – DURATION OF EACHDIFFERENT PENALTIES

1. Reclusión perpetua – 20 yrs. and 1day to 40 yrs.2. Reclusión temporal – 12 yrs. and 1

day to 20 yrs.3. Prisión mayor and temporary

disqualification – 6 yrs. and 1 day to12 yrs., except when disqualificationis an accessory penalty, in whichcase its duration is that of theprincipal penalty.

4. Prisión correccional, suspensión, anddestierro – 6 mos. and 1 day to 6yrs., except when suspensión is an

accessory penalty, in which case its





duration is that of the principalpenalty.

5. Arresto mayor – 1 mo. And 1 day to 6mos.

6. Arresto menor – 1 day to 30 days7. Bond to keep the peace – the periodduring which the bond shall beeffective is discretionary on thecourt.

Destierro is a principal, correctionaland divisible penalty.

In what cases is destierro imposed?1. Serious physical injuries or death

under exceptional circumstances.(Art. 247)

2. In case of failure to give bond forgood behavior. (Art. 284)

3. As a penalty for the concubine inconcubinage. (Art. 334)

4. In cases where after reducing thepenalty by one or more degrees,destierro is the proper penalty.

ART. 28 – COMPUTATION OFPENALTIES

1. When the offender is in prison – theduration of temporary penalties isfrom the day on which the judgmentof conviction becomes final.

2. When the offender is not in prison –the duration of penalties consistingin deprivation of liberty, is from theday that the offender is placed atthe disposal of judicial authoritiesfor the enforcement of the penalty.

3. The duration of other penalties – theduration is from the day on whichthe offender commences to serve hissentence.

ART. 29 – PERIOD OF PREVENTIVEIMPRISONMENT DEDUCTED FROM TERM

OF IMPRISONMENT

Preventive imprisonment – is the periodof detention undergone by an accusedwhere the crime with which he ischarged is non-bailable or, even if bailable, he is unable to post therequisite bail.

These rules on preventiveimprisonment apply to all sentencesregardless of the duration thereof,

including the so-called perpetualpenalties as long as they involvedeprivation of liberty. It applies todestierro.

When is the detention prisoner entitledto the full credit of his preventiveimprisonment?If the detention prisoner agreesvoluntarily in writing to abide by thesame disciplinary rules imposed uponconvicted prisoners.When will he be credited only with

four-fifths the time during which hehas undergone preventiveimprisonment?If the detention prisoner does not agreeto abide by the same disciplinary rulesimposed upon convicted prisoners.

In the case of a youthful offenderwho has been proceeded againstunder the Child and Youth WelfareCode, he shall be credited in theservice of his sentence with the fulltime of his actual detention,whether or not he agreed to abideby the same disciplinary rules of theinstitution.

The following offenders are notentitled to be credited with the fulltime or four-fifths of the time of preventive imprisonment:1. Recidivists or those convicted

previously twice or more times of any crime.

2. Those who, upon being summonedfor the execution of their sentence,failed to surrender voluntarily.

Habitual delinquents are included inNo. 1.

No. 2 refers to convicts who failed tovoluntarily surrender to serve theirpenalties under a final judgment,since this is indicative of a greaterdefiance of authority. It does notrefer to failure or refusal to








voluntarily surrender after thecommission of the crime.

Section Two – Effects of the penalties

according to their respective nature.

A plebiscite is not mentioned orcontemplated in Art.30, par. 2(deprivation of the right tovote), hence, the offender mayvote in that exercise, subject tothe provisions of pertinentelection laws at the time.

Perpetual absolute disqualification iseffective during the lifetime of theconvict and even after the service of

the sentence.

Temporary absolute disqualificationlasts during the term of thesentence, and is removed after theservice of the same, EXCEPT:1) Deprivation of the public office

or employment, and2) Loss of all rights to retirement

pay or other pension for anyoffice formerly held.

Bond to keep the peace is differentfrom bail bond which is posted forthe provisional release of a personarrested for or accused of a crime.

CIVIL INTERDICTION IN ART. 34 ISIMPOSED WHEN THE PENALTY IS:1. Death which is not carried out,2. Reclusión perpetua,or3. Reclusión temporal

ART. 36 – PARDON; ITS EFFECTS

EFFECTS OF PARDON BY THEPRESIDENT1. A pardon shall not restore the right

to hold public office or the right of suffrage.EXCEPTION: When any or both suchrights is/are expressly restored bythe terms of the pardon.

2. It shall not exempt the culprit fromthe payment of the civil liability.

LIMITATIONS UPON THE EXERCISE OFTHE PARDONING POWER:1. That the power can be exercised

only after conviction “by final

judgment”;

2. That such power does not extend tocases of impeachment.

GENERAL RULE: When the principalpenalty is remitted by pardon, only theeffect of that principal penalty isextinguished, but not the accessorypenalties attached to it.EXCEPTION: When an absolute pardon isgranted after the term of imprisonmenthas expired, it removes what is left of the consequences of conviction.

PARDON BY THECHIEF EXECUTIVE

(ART. 36)

PARDON BYOFFENDED PARTY

(ART. 23)As to the crime covered

Can extend to anycrime, unlessotherwise providedby or subject toconditions in theConstitution or thelaws.

Applies only tocrimes againstchastity under theRPC.

As to extinguishment of criminalliability

Extinguishescriminal liability.

Does not extinguishcriminal liabilityalthough it mayconstitute a bar tothe prosecution of the offender.

At to the effect on civil liabilityCannot affect thecivil liability exdelicto of theoffender.

The offended partycan waive the civilliability.

When grantedCan be extendedonly afterconviction by finaljudgment of theaccused.

Can be validlygranted only beforethe institution of the criminal action.

To whom grantedTo any or all of theaccused

In adultery andconcubinage, mustinclude bothoffenders.

As to whether it can be conditional





May be absolute orconditional

Cannot validly bemade subject to acondition.

ART. 37 – COSTS

Costs or costs of suit – are the expensesof litigation allowed and regulated bythe Rules of Court to be assessed againstor to be recovered by a party inlitigation.

THE FOLLOWING ARE INCLUDED INCOSTS:1. Fees, and2. Indemnities, in the course of judicial

proceedings.

Are chargeable to the accused onlyin cases of conviction. In case of acquittal, the costs are de oficio,meaning each party bearing his ownexpenses.

The payment of costs is a matter

that rests entirely upon thediscretion of courts.

ART. 38 - PECUNIARY LIABILITIES

What are the pecuniary liabilities of persons criminally liable?They are, in the following order:1. The reparation of the damage

caused2. Indemnification of the consequential

damages3. Fine4. Costs of proceedings.

When is Art.38 applicable?In case the property of the offendershould not be sufficient for the paymentof all his pecuniary liabilities.

ART. 39 – SUBSIDIARY PENALTY

Subsidiary penalty – it is a subsidiarypersonal liability to be suffered by theconvict who has no property with whichto meet the fine, at the rate of one day

for each eight pesos (P8.00), subject tothe rules provided for in Art. 39.

Subsidiary penalty shall be properonly if the accused has no propertywith which to pay the fine, and notas a matter of choice on his part byopting to go to jail instead of paying.

Subsidiary penalty is not anaccessory penalty, hence it must bespecifically imposed by the court inits judgment, otherwise the accused

cannot be made to serve thecorresponding subsidiaryimprisonment.

RULES AS TO SUBSIDIARY PENALTY1. If the penalty imposed is prisión

correccional or arresto and fine –subsidiary imprisonment is not toexceed 1/3 of the term of thesentence, and in no case to continuefor more than one year. Fraction orpart of a day, not counted.

2. When the penalty imposed is fineonly – subsidiary imprisonmenta) not to exceed 6 months – if the

culprit is prosecuted for grave orless grave felony, and

b) not to exceed 15 days – if prosecuted for light felony.

3. When the penalty imposed is higherthan prisión correccional – nosubsidiary imprisonment.

4. If the penalty imposed is not to beexecuted by confinement, but of fixed duration – subsidiary penaltyshall consist in the same deprivationsas those of the principal penalty,under the same rules as nos. 1, 2 and3 above.

5. In case the financial circumstancesof the convict should improve, heshall pay the fine, notwithstandingthe fact that the convict sufferedsubsidiary personal liability therefor.

When the penalty prescribed for theoffense is imprisonment, it is thepenalty actually imposed by the








Court, not the penalty provided forby the Code, which should beconsidered in determining whetheror not subsidiary penalty should be

imposed. NO SUBSIDIARY PENALTY SHALL BEIMPOSED WHERE:1. The penalty imposed is higher than

prisión correccional or 6 years, Additional penalty for habitual

delinquency should be includedin determining whether or notsubsidiary penalty should beimposed.

2. For non-payment of reparation or

indemnification,

3. For non-payment of costs, and

4. Where the penalty imposed is a fineand another penalty without fixedduration, like censure.

The rules on subsidiary penalty inArt. 39 are applicable to crimespunishable by special laws by forceof Art. 10 of the Code.

Section Three – Penalties in whichother accessory penalties are inherent

OUTLINE OF ACCESSORY PENALTIESINHERENT IN PRINCIPAL PENALTIES1. Death, when not executed by reason

of commutation or pardoni. Perpetual absolute

disqualification, andii. Civil interdiction during 30 years,

if not expressly remitted in thepardon.

2. Reclusión perpetua and reclusióntemporali. Civil interdiction for life or

during the sentence, andii. Perpetual absolute

disqualification, unless expresslyremitted in the pardon of theprincipal penalty.

3. Prisión mayor i. Temporary absolute

disqualification, and

ii. Perpetual special disqualificationfrom suffrage, unless expresslyremitted in the pardon of theprincipal penalty.

4. Prisión correccionali. Suspension from public office,

profession or calling, andii. Perpetual special disqualification

from suffrage, if the duration of imprisonment exceeds 18months, unless expresslyremitted in the pardon of theprincipal penalty.

There is perpetual specialdisqualification from suffrage,only when the duration of the

imprisonment exceeds 18months.

5. Arresto – suspension of the right tohold office and the right of suffrageduring the term of the sentence.

The Code does not provide for anyaccessory penalty for destierro.

RECLUSIONPERPETUA

LIFEIMPRISONMENT

Has a specificduration of 20 yearsand 1 day to 40 yearsand accessorypenalties.

Has no definite termor accessorypenalties.

Imposable onfelonies punished bythe RPC.

Imposable on crimespunishable by speciallaws.

ART. 45 – CONFISCATION AND

FORFEITURE OF THE PROCEEDS OF THECRIME

OUTLINE OF THE PROVISION OF THISARTICLE1. Every penalty imposed carries with it

the forfeiture of the proceeds of thecrime and the instruments or toolsused in the commission of the crime.

2. The proceeds and instruments ortools of the crime are confiscatedand forfeited in favor of theGovernment.





3. Property of a third person not liablefor the offense, is not subject toconfiscation and forfeiture.

4. Property not subject of lawful

commerce (whether it belongs to theaccused or to third person) shall bedestroyed.

The confiscation and forfeiture of the proceeds and instruments of acrime is an accessory penalty.

The provisions of Art. 45 cannot applywhen1. The instruments belong to innocent

third parties,2. Such properties have not been

placed under the jurisdiction of thecourt, and

3. When it is legally or physicallyimpossible.

This accessory penalty presupposes ajudgment of conviction. However,even if the accused is acquitted onreasonable doubt, but theinstruments or proceeds arecontraband, the judgment of acquittal shall order their forfeiturefor appropriate disposition.

Chapter Four: Application of Penalties(Arts. 46-72)

Section One – Rules for application of penalties to the persons criminally liable and for the graduation of thesame.

ART. 46. PENALTY TO BE IMPOSEDUPON PRINCIPALS IN GENERAL

GENERAL RULE: The penalty prescribedby law in general terms shall be imposedupon the principals for a consummated felony.EXCEPT: When the penalty to beimposed upon the principal in frustratedor attempted felony is fixed by law.

GRADUATION OF PENALTIES1. BY DEGREES – refers to

a) the stages of execution(consummated, frustrated, orattempted); and

b) the degree of the criminal

participation of the offender(whether as principal, accomplice oraccessory).

2. BY PERIODS – refers to the properperiod of the penalty which should beimposed when aggravating or mitigatingcircumstances attend the commission of the crime.

ART. 47 CASES WHEREIN THE DEATHPENALTY SHALL NOT BE IMPOSED

1. UNDER AGE. When the offender isbelow 18 years of age at the time of the commission of the crime.

2. OVER AGE. When the guilty person ismore than seventy (70) years of age.

3. NO COURT MAJORITY. When uponappeal or automatic review of thecase by the Supreme Court, the voteof eight members is not obtained forthe imposition of the death penalty.

Automatic review is available only incases where death penalty isimposed (R.A. 7659).

CRIMES PUNISHABLE BY DEATH UNDER THE DEATH PENALTY LAW (RA 7659)

1. Treason2. Qualified Piracy3. Qualified Bribery4. Parricide5. Murder6. Infanticide7. Kidnapping and Serious Illegal

Detention

8. Robbery – with Homicide, Rape,Intentional Mutilation, or Arson9. Rape – with the use of a deadly

weapon, or by two or more persons- where the victim became

insane- with Homicide

10. Qualified Rape11. Destructive Arson12. Plunder13. Violation of certain provisions of the

Dangerous Drugs Act14. Carnapping








ART. 48 COMPLEX CRIMES

CONCEPT:1. In complex crime, although 2 or

more crimes are actually committed,they constitute only one crime in theeyes of the law as well as in theconscience of the offender.

2. The offender has only one criminalintent, hence there is only one

penalty imposed for the commissionof a complex crime.

TWO KINDS OF COMPLEX CRIMES:

1. COMPOUND CRIME (delitocompuesto) – a single actconstitutes 2 or more grave or lessgrave felonies.

REQUISITES:

1. That only a single act isperformed by the offender;

2. That the single act produces: (1) two or moregrave felonies, or (2) one ormore grave and one or moreless grave felonies.

2. COMPLEX CRIME PROPER(delito complejo) – an offense is anecessary means for committingthe other.

REQUISITES:

1. That at least twooffenses are committed;

2. That one or some of theoffenses must be necessary to commit the other;

3. That both or all of theoffenses must be punished

under the same statute.

NO COMPLEX CRIME IN THE FOLLOWINGCASES

1. In case of continuing crimes

2. When one offense is committed toconceal the other.

3. When the other crime is anindispensable part or an element of the other offenses.

4. Where one of the offenses ispenalized by a special law.

Art. 48 does not apply when the lawprovides one single penalty forspecial complex crime. Theseinclude –

Robbery with HomicideRobbery with RapeRape with HomicideKidnapping with SeriousPhysical InjuriesKidnapping with Homicide orMurder

The penalty for complex crime is thepenalty for the most serious crime,the same to be applied in itsmaximum period.

If different crimes resulting from onesingle act are punished with thesame penalty, the penalty for anyone of them shall be imposed, thesame to be applied in the maximumperiod.

Art. 48 applies to crimes throughnegligence. E.g.: offender foundguilty of a complex crime of homicide with less serious physicalinjuries through reckless

imprudence.

When 2 felonies constituting acomplex crime are punishable byimprisonment and fine, respectively,only the penalty of imprisonmentshould be imposed. REASON: fine isnot included in the list of penaltiesin the order of severity, and it is thelast in the graduated scales in Art.71 of the RPC.

Plurality of Crimes- consists in the

successive execution, by the sameindividual, of different criminal acts,upon any of which no conviction has yetbeen declared.

KINDS:

1. FORMAL OR IDEAL PLURALITY- onlyONE CRIMINAL LIABILITY.

THREE GROUPS UNDER THEFORMAL TYPE:

a) When the offendercommits any of the complex

crimes in ART 48.





b) When the law specifically fixes a singlepenalty for two or moreoffenses committed.

c) When the offendercommits continuing crimes.

2. REAL OR MATERIAL PLURALITY -DIFFERENT CRIMES in law, as well asin the conscience of the offender;the offender shall be PUNISHED FOREACH and every offense that hecommitted.

CONTINUING CRIME – is a single crime,consisting of a series of acts, but allarising from ONE CRIMINAL RESOLUTION;length of time in the commission isimmaterial.

REAL OR MATERIALPLURALITY

CONTINUEDCRIME

1. There is a seriesof acts performedby the offender

1. There is a seriesof acts performedby the offender

2. Each actperformed by theoffender constitutesa separate crime,each act isgenerated by a

criminal impulse

2. The different actsconstitute only onecrime, all of theacts performed arisefrom one criminalresolution

ART. 49 PENALTY TO BE IMPOSEDUPON THE PRINCIPALS WHEN THE

CRIME COMMITTED IS DIFFERENT FROMTHAT INTENDED

RULES:

1. If the penalty for the felonycommitted be higher than thepenalty for the offense which theaccused intended to commit, thelower penalty shall be imposed in itsmaximum period.

2. If the penalty for the felonycommitted be lower than thepenalty for the offense which theaccused intended to commit, thelower penalty shall be imposed in itsmaximum period.

3. If the act committed also constitutesan attempt or frustration of anothercrime, and the law prescribes ahigher penalty for either of thelatter, the penalty for the attempted

or frustrated crime shall be imposedin its maximum period.

ART. 59. PENALTY TO BE IMPOSED IN

CASE OF FAILURE TO COMMIT THECRIME BECAUSE THE MEANS EMPLOYEDOR THE AIMS SOUGHT ARE IMPOSSIBLE

The penalty for impossible crime is Arresto Mayor (imprisonment of 1 moand 1 day to 6 mos) or fine ranging from200-500pesos.BASIS FOR THE IMPOSITION OF PROPERPENALTY1. Social danger; and2. Degree of criminality shown by the

offender

ART. 61. RULES OF GRADUATINGPENALTIES

According to Arts. 50-57, the penaltyprescribed by law for the felony shall belowered by one or two degrees, asfollows:1. For the principal in frustrated felony

– one degree lower;2. For the principal in attempted felony

– two degrees lower;3. For the accomplice in consummated

felony – one degree lower;4. For the accessory in consummated

felony – two degrees lower;

DIAGRAM OF THE APPLICATION OFARTS. 50- 57:

CONSUM-MATED

FRUS-TRATED

ATTEMP-TED

Prin 0 1 2

Accom 1 2 3

Acces 2 3 4

In this diagram, “0” represents thepenalty prescribed by law in defining acrime, which is to be imposed on the

principal in a consummated offense, inaccordance with the provisions of Art.64. The other figures represent thedegrees to which the penalty must belowered, to meet the different situationsanticipated by law.








Section Two – Rules for the applicationof penalties with regard to themitigating and aggravatingcircumstances, and habitual

delinquency

ART. 62. EFFECTS OF THEATTENDANCE OF MITIGATING OR

AGGRAVATING CIRCUMSTANCES AND OFHABITUAL DELIQUENCY

EFFECTS:

1. Aggravating circumstances (genericand specific) have the effect of increasing the penalty, withouthowever exceeding the maximumperiod provided by law.

2. Mitigating circumstances have theeffect of diminishing the penalty.

3. Habitual delinquency has the effect,not only of increasing the penaltybecause of recidivism which isgenerally implied in habitualdelinquency, but also of imposing an

additional penalty.

REQUISITES OF HABITUAL DELIQUENCY:

1. that the offender had beenconvicted of any of the crimes of serious or less serious physicalinjuries, robbery, theft, estafa orfalsification.

2. that after conviction or after servinghis sentence, he again committed,and, within 10 years from his lastrelease of first conviction, he wasagain convicted of any of the saidcrimes for the second time.

3. that after his conviction of, or afterserving sentence for the secondoffense, he again committed, and,within 10 years from his last releaseor last conviction, he was againconvicted of any of said offenses,the third time or oftener.

Habituality distinguished from recidivismHABITUAL

DELIQUENCYRECIDIVISM

As to the CRIMES committedThe crimes arespecified

It is sufficient thatthe accused on thedate of his trial,shall have beenpreviouslyconvicted by finaljudgment of another crimeembraced in thesame title.

As to the PERIOD of time the crimesare committed

The offender is foundguilty within tenyears from his lastrelease or lastconviction.

No period of timebetween theformer convictionand the lastconviction.

As to the NUMBER of crimescommittedThe accused must befound guilty the thirdtime or oftener of the crimes specified.

The second offenseis for an offensefound in the sametitle.

As to their EFFECTSAn additional penaltyis also imposed

If not offset by amitigatingcircumstance,serves to increasethe penalty only tothe maximum

ART. 63 RULES FOR THE APPLICATIONOF INDIVISIBLE PENALTIES

OUTLINE OF THE RULES:

1. When the penalty is singleindivisible, it shall be applied regardless of any mitigating (exceptif privilege mitigating) or aggravatingcircumstances.

2. When the penalty is composed of two indivisible penalties, thefollowing rules shall be observed:

a) When there is only oneaggravating circumstance, the

greater penalty shall beimposed.

b) When there is neithermitigating nor aggravatingcircumstances, the lesser penalty shall be imposed.

c) When there is amitigating circumstance and noaggravating circumstance, thelesser penalty shall be imposed.





d) When both mitigatingand aggravating circumstancesare present, the court shallallow them to offset one

another.

ART. 64 RULES FOR THEAPPLICATION OF PENALTIES, WHICH

CONTAIN THREE PERIODS

CASES IN WHICH MITIGATING AND

AGGRAVATING CIRCUMSTANCES ARENOT CONSIDERED IN THE IMPOSITIONOF PENALTY:1. When the penalty is single and

indivisible (except if privilegedmitigating)

2. In felonies through negligence3. When the penalty is only a fine

imposed by an ordinance4. When the penalties are prescribed by

special laws

ART. 66. IMPOSITION OF FINES

OUTLINE OF THE PROVISION:1. The court can fix any amount of the

fine within the limits established bylaw.

2. The court must consider: (1) themitigating and aggravatingcircumstances; and (2) moreparticularly, the wealth or means of the culprit.

3. The court may also consider: (1) thegravity of the crime committed; (2)

the heinousness of it s perpetration;and (3) the magnitude of its effectson the offender’s victims.

ART. 68. PENALTY TO BE IMPOSEDUPON A PERSON UNDER EIGHTEEN

YEARS OF AGE

APPLICATION OF ART. 68:

This article is not immediatelyapplicable to a minor under 18 yearsof age, because such minor, if found

guilty of the offense charged, is notsentenced to any penalty. Thesentence is suspended and he isordered committed to the

reformatory institution, IF, hisapplication therefore is approved bythe court.

This article is applicable when theminor’s application for suspension of sentence is DISAPPROVED or if whilein the reformatory institution hebecomes INCORRIGIBLE, in whichcase he shall be returned to thecourt for the imposition of theproper penalty.

ART. 70. SUCCESSIVE SERVICE OFSENTENCE

THE THREE-FOLD RULE

1. THE MAXIMUM DURATION OF THECONVICT’S SENTENCE shall not bemore than three times the length of time corresponding to the mostsevere of the penalties imposedupon him.

2. But in no case to exceed 40 years.

3. This rule shall apply only when theconvict is to serve 4 or moresentences successively.

4. Subsidiary penalty forms part of thepenalty.

DIFFERENT SYSTEMS OF PENALTY,RELATIVE TO THE EXECUTION OF TWOOR MORE PENALTIES IMPOSED ON ONEAND THE SAME ACCUSED1. Material accumulation system

No limitation whatever, and

accordingly, all the penalties for allthe violations were imposed even if they reached beyond the naturalspan of human life.

2. Juridical accumulation systemLimited to not more than three-

fold the length of timecorresponding to the most severeand in no case to exceed 40 years.This is followed in our jurisdiction.

3. Absorption systemThe lesser penalties are

absorbed by the graver penalties.2005 CENTRALIZED BAR OPERATIONS EXECUTIVE COMMITTEE AND SUBJECT

CHAIRPERSONS Maricel Abarentos (Over-all Chairperson), Ronald Jalmanzar (Over-all Vice Chair), YolandaTolentino(VC-Acads), Jennifer Ang(VC- Secretariat), Joy Inductivo (VC-Finance), Elaine Masukat (VC-EDP), Anna Margarita Eres (VC-Logistics) Jonathan






ART. 72. PREFERENCE IN THEPAYMENT OF CIVIL LIABILITIES

Civil liability is satisfied by following thechronological order of the dates of thefinal judgment.

Section Three – Provisions common inthe last two preceding sections (Arts.73-77)

ART. 77. WHEN THE PENALTY ISA COMPLEX ONE COMPOSED OF

THREE DISTINCT PENALTIES

COMPLEX PENALTY - is a penaltyprescribed by law composed of threedistinct penalties, each forming aperiod: the lightest of them shall be theminimum, the next the medium, and themost severe the maximum period.

INDETERMINATE SENTENCE LAW (ISL)Act No. 4103 as amended by Act No.

4225

CONCEPT OF INDETERMINATESENTENCE – is a sentence with aminimum term and a maximum term

which, the court is mandated to imposefor the benefit of a guilty person who isnot disqualified therefore, when themaximum imprisonment exceeds one (1)year. It applies to both violations of Revised Penal Code and special laws.

A. SENTENCE IN THE ISLIn imposing a prison sentence for anoffense punished by the Revised PenalCode or special penal laws, the courtshall sentence the accused to anindeterminate sentence, which has amaximum and a minimum term based onthe penalty actually imposed.

ISL application is mandatory, whereimprisonment would exceed oneyear.

I. IF THE PENALTY ISIMPOSED BY THE RPC:

1. The Maximum Term – is that whichcould be properly imposed under the

RPC, considering the aggravating andmitigating circumstances.

2. The MinimumTerm – is within therange of the penalty one degreelower than that prescribed by theRPC, without considering thecircumstances.

BUT when there is a privilegedmitigating circumstance, so that thepenalty has to be lowered by onedegree, the STARTING POINT fordetermining the minimum term of

the indeterminate penalty is thepenalty next lower than thatprescribed by the Code for theoffense.

II. IF THE PENALTY IS IMPOSED BYSPECIAL PENAL LAW

a) The Maximum Term – must notexceed the maximum term fixed bysaid law.

b) The Minimum Term – must not beless than the minimum termprescribed by the same.

For SPECIAL LAWS, it is anythingwithin the inclusive range of theprescribed penalty. Courts are givendiscretion in the imposition of theindeterminate penalty. Theaggravating and mitigatingcircumstances are not consideredunless the special law adopts thesame terminology for penalties asthose used in the RPC (such asreclusión perpetua and the like).

B. WHEN BENEFIT OF THE ISL IS NOTAPPLICABLE:The Indeterminate Sentence Law shallnot apply to the following persons:

1. sentenced to death penalty or lifeimprisonment

2. treason, or conspiracy or proposal tocommit treason

3. misprision of treason, rebellion,sedition or espionage

4. piracy

5. habitual delinquents





6. escaped from confinement, orevaded sentence

7. granted with conditional pardon bythe President, but violated the terms

thereof 8. maximum term of imprisonment

does not exceed 1 year

9. sentenced to the penalty of destierro or suspension only

C. RELEASE OF THE PRISONER ONPAROLE

The Board of Pardons and Parole may authorize the release of a prisoner onparole, after he shall have served theminimum penalty imposed on him,

provided that:a) Such prisoner is fitted by his trainingfor release,

b) There is reasonable probability thathe will live and remain at libertywithout violating the law,

c) Such release will not beincompatible with the welfare of society.

D. ENTITLEMENT TO FINAL RELEASEAND DISCHARGEIf during the period of surveillance such

paroled prisoner shall: (a) show himself to be a law abiding citizen and, (b) shallnot violate any law, the Board may issuea final certification in his favor, for hisfinal release and discharge.

E. SANCTION FOR VIOLATION OFCONDITIONS OF THE PAROLEWhen the paroled prisoner shall violateany of the conditions of his parole: (a)the Board may issue an order for hisarrest, and thereafter, (b) the prisonershall serve the remaining unexpiredportion of the maximum sentence forwhich he was originally committed toprison.

F. REASONS FOR FIXING THE MAXIMUMAND MINIMUM TERMS IN THEINDETERMINATE SENTENCEThe minimum and maximum terms in theIS must be fixed, because they are thebasis for the following:1. Whenever a prisoner has: (a) served

the MINIMUM penalty imposed on

him, and (b) is fit for release of theprisoner on parole, upon terms andconditions prescribed by the Board.

2. But when the paroled prisoner

violates any of the conditions of hisparole during the period of surveillance, he may be rearrestedto serve the remaining unexpiredportion of the MAXIMUM sentence.

3. Even if a prisoner has already servedthe MINIMUM, but he is not fitted forrelease on the parole, he shallcontinue to serve until the end of the MAXIMUM term.

THE CHILD AND YOUTH WELFARE CODE(PD 603, as amended)

Who is a Youthful Offender?A youthful offender is a child, minor, oryouth, including one who is emancipatedin accordance with law, who is over nineyears but under eighteen years of age atthe time of the commission of theoffense. A child nine years of age or under at

the time of the commission of theoffense shall be exempt fromcriminal liability and shall becommitted to the care of his or her

father or mother, or nearest relativeor family friend in the discretion of the court and subject to itssupervision

The same shall be done for a childover nine years and under fifteenyears of age at the time of thecommission of the offense, unless heacted with discernment, in whichcase he shall be proceeded against inaccordance with Article 192.

1. The purpose of the Child and YouthWelfare Code is to avoid a situationwhere JUVENILE OFFENDERS wouldcommingle with ordinary criminals inprison.

2. If the court finds that the youthfuloffender committed the crimecharged against him, it shallDETERMINE the imposable penaltyand the civil liability chargeableagainst him.








3. The court may not pronouncejudgment of conviction but insteadSUSPEND all further proceedings if,upon application of the youthful

offender, it finds that the bestinterest of the public and that of theoffender will be served thereby.

4. The benefits of Article 192 of PD603, as amended, providing forsuspension of sentence, shall NOTAPPLY TO (1) a youthful offenderwho once enjoyed suspension of sentence under its provisions, or (2)one who is convicted of an offensepunishable by death or lifeimprisonment.

5.The youthful offender shall beRETURNED to the committing courtfor pronouncement of judgment,when the youthful offender, (1) hasbeen found incorrigible, or (2) haswillfully failed to comply with theconditions of his rehabilitationprograms; or (3) when his continuedstay in the training institution wouldbe inadvisable.

6. When the youthful offender hasreached the age of TWENTY-ONEwhile in commitment, the court shall

determine whether-a) To DISMISS the case, if the youthful offender hasbehaved properly and has shownhis capability to be a usefulmember of the community; or

b) To PRONOUNCE thejudgment of conviction, if theconditions mentioned are notmet.

7. In the latter case, the convictedoffender may apply for PROBATION.In any case, the youthful offendershall be credited in the service of hissentence with the full time spent inactual commitment and detention.

8. The final release of a youthfuloffender, based on good conduct asprovided in Art. 196 shall notobliterate his CIVIL LIABILITY fordamages.

9. A minor who is ALREDY AN ADULT atthe time of his conviction is notentitled to a suspension of sentence.

PROBATION LAW OF 1976

(PD 968, AS AMENDED)

A. CONCEPTPROBATION is a disposition under

which a defendant after convictionand sentence is released subject toconditions imposed by the court andto the supervision of a probationofficer.

B. APPLICATIONThis shall apply to all offendersexcept those entitled to benefitsunder PD 603 and similar laws.

C. RULES ON GRANT OFPROBATION

1. After having convicted andsentenced a defendant, the trialcourt MAY SUSPEND the execution of the sentence, and place thedefendant on probation, uponAPPLICATION by the defendantwithin the period for perfecting anappeal.

2. Probation may be granted whether

the sentence imposed a term of imprisonment or fine only.3. NO application for probation shall be

entertained or granted if thedefendant has PERFECTED ANAPPEAL from the judgment of conviction.

4. Filing of application for probationoperates as a WAIVER OF THE RIGHTTO APPEAL.

5. The application shall be filed withthe trial court, and the ordergranting or denying probation shall

NOT BE APPEALABLE.6. Accessory penalties are deemed

suspended once probation isgranted.

D. POST-SENTENCE INVESTIGATIONThe convict is not immediately placed onprobation. There shall be a priorinvestigation by the probation officerand a determination by the court.

E. CRITERIA FOR PLACING ANOFFENDER ON PROBATION





The court shall consider:1. All information relative to the

character, antecedents,environment, mental, and physical

condition of the offender.2. Available institutional andcommunity resources.

F. PROBATION SHALL BE DENIED IFTHE COURT FINDS THAT:

1. The offender is in need of correctional treatment that can beprovided effectively by hiscommitment to an institution.

2. There is undue risk of committinganother crime.

3. Probation will depreciate the

seriousness of the offensecommitted.

G. DISQUALIFIED OFFENDERSTHE BENEFITS OF THE DECREE SHALLNOT BE EXTENDED TO THOSE:

1. Sentenced to serve a maximum termof imprisonment of more the 6years.

2. Convicted of subversion or any crimeagainst the national security or the

public order.

3. Previously convicted by finaljudgment of an offense punished byimprisonment of not less than 1month and 1 day and/or a fine notless than P200.

4. Once placed on probation.

H. CONDITIONS OF PROBATION2 KINDS OF CONDITIONS IMPOSED:

1. Mandatory or general – onceviolated, the probation is cancelled.They are:

a) Probationer: Presentshimself to the probation officerdesignated to undertake hissupervision, at such place as maybe specified in the order, within72 hours from receipt of order;

b) He reports to theprobation officer at least once amonth.

2. Discretionary or special – additionalconditions listed, which the courtsmay additionally impose on theprobationer towards his correction

and rehabilitation outside prison.HOWEVER, the enumeration is notinclusive. Probation statutes areliberal in character and enable the

courts to designate practically ANYterm it chooses, as long as theprobationer’s Constitutional rightsare not jeopardized. Also, they mustnot be unduly restrictive of probationer, and not incompatiblewith the freedom of conscience of probationer.

I. PERIOD OF PROBATION

FOR HOW LONG MAY A CONVICT BEPLACED ON PROBATION?

1. If the convict is sentenced to a termof imprisonment of NOT more thanone year, the period of probationshall not exceed 2 years.

2. In all other cases, if he is sentencedto more than one year, said period shall not exceed 6 years.

3. When the sentence imposes a fineonly and the offender is made toserve subsidiary imprisonment. The

period of probation shall be twicethe total number of days of subsidiary imprisonment.

J. ARREST OF PROBATIONER ANDSUBSEQUENT DISPOSITIONS

1. At any time during probation, thecourt may issue a warrant for theARREST of a probationer for anyserious violation of the conditions of probation.

2. If violation is established, the courtmay (a) REVOKE his probation, or (b)

continue his probation and MODIFYthe conditions thereof. This order isnot appealable.

3. If revoked, the probationer shallSERVE the sentence originallyimposed.

K. TERMINATION OF PROBATIONThe court may order the final dischargeof the probationer upon finding that, hehas fulfilled the terms and conditions of his probation.








L. EFFECTS OF TERMINATIONOF PROBATION

1. Case is deemed terminated.

2. Restoration of all civil rights lost or

suspended.3. Fully discharges liability for any fine

imposed.

Note that the probation is NOTcoterminous with its period. Theremust be an order issued by the courtdischarging the probationer.

Chapter Five: Execution and Service of Penalties (Arts. 78-88)

ART. 83. SUSPENSION OF THEEXECUTION OF THE DEATH SENTENCE

Death sentence shall be suspendedwhen accused is a:1. Woman, while pregnant,2. Woman, within one year after

delivery,3. Person over 70 years of age;

4. Convict who becomes insane, after

final sentence of death has beenpronounced.

ART. 87. DESTIERRO

ONLY IN THE FOLLOWING CASES ISDESTIERRO IMPOSED:

1. Death or serious physical injuries iscaused or are inflicted underexceptional circumstances (Art.247);

2. Failure to give bond for goodbehavior in grave and light threats(Art. 284);

3. Penalty for the concubine inconcubinage (Art. 334);

4. When, after reducing the penalty byone or more degrees, destierro isthe proper penalty.

TITLE FOUR: EXTINCTION OF CRIMINALLIABILITY

Chapter One: Total Extinction of Criminal Liability (Arts. 89-93)

ART. 89. CRIMINAL LIABILITY ISTOTALLY EXTINGUISHED

HOW CRIMINAL LIABLITY TOTALLYEXTINGUISHED:

1. By the DEATH of the convict as topersonal penalties; BUT as topecuniary penalties, liability isextinguished only when the death of the offender occurs before or afterfinal judgment

2. By SERVICE OF SENTENCE;3. By AMNESTY, which completely

extinguishes the penalty and all itseffects.

4. By ABSOLUTE PARDON5. By PRESCRIPTION OF THE CRIME6. By PRESCRIPTION OF PENALTY7. By MARRIAGE OF THE OFFENDED

WOMAN with the offender in thecrimes of rape, seduction,abduction, and acts of lasciviousness. In the crimes of rape,seduction, abduction, and acts of lasciviousness, the marriage, asprovided under Art 344, must becontracted in good faith.

AMNESTY – is an act of the sovereignpower granting oblivion or generalpardon for a past offense, and is rarely if ever exercised in favor of a singleindividual, and is usually extended inbehalf of certain classes of persons whoare subject to trial but have not yetbeen convicted.

PARDON – is an act of grace, proceedingfrom the power entrusted with theexecution of the laws, which exemptsthe individual on whom it is bestowedfrom the punishment the law inflicts forthe crime he has committed.

Pardon distinguished from amnestyPARDON AMNESTY

1. Includes anycrime and isexercised

1. A blanket pardonto classes of personsor communities who





individually by thePresident

may be guilty of political offenses.

2. Exercised whenthe person isalready convicted

2. May be exercisedeven before trial orinvestigation is had

3. Merely looksFORWARD andrelieves theoffender from theconsequences of anoffense of which hehas been convicted;it does not work forthe restoration of the rights to holdpublic office, orthe right of

suffrage, unlesssuch rights areexpressly restoredby means of pardon.

3. Looks BACKWARDand abolishes andputs into oblivion theoffense itself; it sooverlooks andobliterates theoffense with whichhe is charged thatthe person releasedby amnesty standsbefore the lawprecisely as though

he had committed nooffense.

4. Does not alterthe fact that theaccused is arecidivist as itproduces only theextinction of thepersonal effects of the penalty.

4. Makes an ex-convict no longer arecidivist, because itobliterates the lastvestige of the crime.

5. Does not

extinguish thecivil liability of the offender

5. Does not

extinguish the civilliability of theoffender

6. Being PRIVATEACT by thePresident, must bepleaded and provedby the personpardoned

6. Being aProclamation of theChief Executive withthe concurrence of Congress; is a PUBLICACT of which thecourts should takejudicial notice

Prescription of the crime – is the

forfeiture or loss of the right of the Stateto prosecute the offender, after thelapse of a certain time.

PRESCRIPTIVE PERIODS OF CRIMES:1. Crimes punishable by

a) Death, reclusión perpetua or reclusión temporal –20 yearsb) afflictive penalties – 15years

c) correctional penalties –10 years except those punishable

by arresto mayor which shallprescribe in 5 years.

When the penalty fixed by law isa compound one, the highest

penalty shall be made the basisof the application of the rulescontained above.

2. Crime of libel – 1 year3. Offenses of oral defamation and

slander by deed – 6 months4. Light offenses – 2 months

Prescription of the penalty – is the lossor forfeiture of the right of thegovernment to execute the finalsentence, after the lapse of a certaintime.

PRESCRIPTIVE PERIODS OF PENALTIES:

1. Death and reclusión perpetua – 20years

2. Other afflictive penalties – 15 years3. Correctional penalties – 10 years

except for the penalty of arrestomayor which prescribes in 5 years.

4. Light penalties – 1 year

ART. 93. COMPUTATION OF THEPRESCRIPTION OF PENALTIES

OUTLINE

1. Period of prescription commences torun from the date when the culpritevaded the service of his sentence.

2. It is interrupted when the convicta) gives himself up,b) is captured,c) goes to a foreign countrywith which we have no

extradition treaty, ord) commits any crimebefore the expiration of theperiod of prescription.

ELEMENTS1. That the penalty is imposed by final

judgment

2. That the convict evaded the serviceof his sentence by escaping duringthe term of his sentence








3. The convict who escape from prisonhas not given himself up, or beencaptured, or gone to a foreigncountry

4. That the penalty has prescribedbecause of the lapse of time fromthe date of the evasion of service of the sentence by the convict.

Chapter Two: Partial Extinction of Criminal Liability (Arts. 94-99)

ART. 94. PARTIAL EXTINCTION OFCRIMINAL LIABILITY

CRIMINAL LIABILITY IS PARTIALLYEXTINGUISHED:

1. By CONDITIONAL PARDON;2. By COMMUTATION OF SERVICE3. For GOOD CONDUCT ALLOWANCES

which the culprit may earn while heis serving sentence;

4. By PAROLE

a. Parole – is the suspension of thesentence of a convict, afterserving the minimum term of the indeterminate penalty,without being granted a pardon,prescribing the terms upon which

the sentence shall be suspended

b. If the convict fails to observe thecondition of the parole, theBoard of Pardons and Parole isauthorized to :(1) direct his ARREST AND

RETURN TO CUSTODY andthereafter;

(2) to CARRY OUT HIS SENTENCEWITHOUT REDUCTION of the timethat has elapsed between the dateof the parole and the subsequent

arrest.5. By PROBATION. See Probation Law

page42

Conditional pardon distinguished fromparole

CONDITIONALPARDON

PAROLE

1. May be given at anytime after finaljudgment; is grantedby the Chief Executiveunder the provisions

of the Administrative

1. May be given afterthe prisoner hasserved the minimumpenalty; is granted bythe Board of Pardons

and Parole under the

Code provision of theIndeterminateSentence Law

2. For violation of theconditional pardon,the convict may beordered re-arrested orre-incarcerated by theChief Executive, ormay be PROSECUTEDunder Art. 159 of theCode

2. For violation of theterms of the parole,the convict CANNOTBE PROSECUTEDUNDER ART. 159 OFTHE RPC, he can bere-arrested and re-incarcerated to servethe unserved portionof his original penalty.

TITLE FIVE: CIVIL LIABILITY

Chapter One: Persons Civilly Liable forFelonies (Arts. 100-103)

ART. 100. CIVIL LIABILITY OF APERSON GUILTY OF FELONY

A CRIME HAS A DUAL CHARACTER:1. As an offense against the state,

because of the disturbance of thesocial order; and

2. As an offense against the privateperson injured by the crime, UNLESSit involves the crime of treason,rebellion, espionage, contempt, andothers wherein no civil liabilityarises on the part of the offender,

either because there are no damagesto be compensated or there is no

private person injured by the crime.

EFFECT OF ACQUITTALExtinction of the penal action does NOTcarry with it extinction of the civil;UNLESS the extinction proceeds from adeclaration in a final judgment that thefact from which the civil liability mightarise did not exist. (See Section 1, Rule111 of the 2000 Rules on CriminalProcedure. Civil liability arising fromother sources of obligations is notimpliedly instituted with the criminalaction).

EFFECT OF DISMISSAL OF CASEThe dismissal of the information or thecriminal action does NOT affect the rightof the offended party to institute orcontinue the civil action alreadyinstituted arising from the offense,because such dismissal or extinction of the penal action does not carry with it

the extinction of the civil action.





EFFECT OF DEATH OF THE OFFENDER If the offender dies prior to theinstitution of the action or prior to the

finality of judgment, civil liability ex-delicto is extinguished. (DE GUZMAN vs.PEOPLE OF THE PHILIPPINES, G.R. No.154579. October 8, 2003)

In all these cases, civil liabilityfrom sources other than delict are notextinguished.

ART. 101. RULES REGARDING CIVIL

LIABILITY IN CERTAIN CASES- Civil liability is still imposed in casesfalling under exempting circumstancesEXCEPT:

1. No civil liability inparagraph 4 of Art. 12 whichprovides for injury caused bymere accident.2. No civil liability inparagraph 7 of Art. 12 whichprovides for failure to performan act required by law whenprevented by some lawful orinsuperable cause.

- No civil liability is imposed in casesfalling under justifying circumstancesEXCEPT: under paragraph 4, where aperson does an act, causing damage toanother, in order to avoid evil or injury,the person benefited by the preventionof the evil or injury shall be civilly liablein proportion to the benefit he received.

ART. 102. SUBSIDIARY LIABILITY OFINNKEEPERS, TAVERNKEEPERS, ANDPROPRIETORS OF ESTABLISHMENTS

ELEMENTS UNDER PARAGRAPH 11. That the innkeeper, tavernkeeper or

proprietor of establishment or hisemployee committed a violation of municipal ordinance or some generalor special police regulation.

2. That the crime is committed in suchinn, tavern or establishment.

3. That the person criminally liable isinsolvent.

Concurrence of all elements makes

the innkeeper, tavernkeeper, orproprietor civilly liable for the crimecommitted in his establishment.

ELEMENTS UNDER PARAGRAPH 2

1. That the guests notified in advancethe innkeeper or the personrepresenting of the deposit of their

goods within the inn or house.

2. The guests followed the directionsof the innkeeper or hisrepresentative with respect to the

care of and vigilance over suchgoods.

3. Such goods of the guests lodgingtherein were taken by robbery with

force upon things or theftcommitted within the inn or house.

ART. 103. SUBSIDIARY CIVILLIABILITY OF OTHER PERSONS

ELEMENTS

1. The employer, teacher, person, orcorporation is engaged in any kind of

industry.2. Any of their servants, pupils,

workmen, apprentices, or employeescommits a felony while in thedischarge of his duties.

3. The said employee is insolvent andhas not satisfied his civil liability.

Chapter Two: What Civil LiabilityIncludes (Arts. 104-111)

ART. 104. WHAT IS INCLUDED IN CIVILLIABILITY

RESTITUTION – restitution of the thingitself must be made whenever possibleeven when found in the possession of athird person except when acquired bysuch person in any manner and under therequirements which, by law, bar anaction for its recovery.

REPARATION OF DAMAGES – reparationwill be ordered by the court if








restitution is not possible. The courtshall determine the amount of damage,taking into consideration the price of thething, whenever possible, and its special

sentimental value.

INDEMNIFICATION FOR DAMAGES –includes not only those caused theinjured party, but also, those suffered byhis family or by a third person by reasonof the crime.

- END OF BOOK ONE -

60201807 criminal law book i

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