ortega notes on criminal law 1

8/9/2019 Ortega Notes on Criminal Law 1

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CRIMINAL LAW

Criminal law is that branch of municipal law whichde nes crimes, treats of their nature and provides for their punishment.

It is that branch of public substantive law whichde nes o enses and prescribes their penalties. It issubstantive because it de nes the state’s right toin ict punishment and the liability of the o enders. It is public law because it deals with the relation of the

individual with the state.

Limitations on the power of Congress to enactpenal laws

1. Must be general in application.

2. Must not partake of the nature of an ex post facto law.

3. Must not p artake o f the nature o f a bill of attainder.

4. Must not impose cruel and unusual punishmentor excessive nes.

Characteristics of Criminal Law

1. Generalit

2. !erritorialit

3. "rospectivit.

GENERALITY

enerality of criminal law means that the criminal lawof the country governs all persons within the country

regardless of their race, belief, sex, or creed. !owever,it is sub"ect to certain exceptions brought about by international agreement. #mbassadors, chiefs of states and other diplomatic o$cials are immune fromthe application of penal laws when they are in thecountry where they are assigned.

%ote that consuls are not diplomatic o$cers. &hisincludes consul'general, vice'consul or any consul in aforeign country, who are therefore, not immune to theoperation or application of the penal law of the country where they are assigned. Consuls are sub"ect to the

penal laws of the country where they are assigned.

It has no reference to territory. (henever you areas)ed to explain this, it does not include territory. It refers to persons that may be governed by the penallaw.

TERRITORIALITY

&erritoriality means that the penal laws of the countrhave force and e#ect onl within its territor. $t cannotpenali%e crimes committed outside the same. !his issub&ect to certain exceptions brought about binternational agreements and practice. !he territor of the countr is not limited to the land where its

sovereignt resides but includes also its maritime andinterior waters as well as its atmosphere.

&errestrial "urisdiction is the "urisdiction exercised over land.

*luvial "urisdiction is the "urisdiction exercised over maritime and interior waters.

#erial "urisdiction is the "urisdiction exercised over theatmosphere.

The Archipelagic Rule

#ll bodies of water comprising the maritime +one andinterior waters abounding di erent islands comprisingthe hilippine #rchipelago are part of the hilippineterritory regardless of their breadth, depth, width or dimension.

-n the uvial "urisdiction there is presently a departurefrom the accepted International aw /ule, because thehilippines adopted the #rchipelagic /ule. In the

International aw /ule, when a strait within a country has a width of more than 0 miles, the center lane inexcess of the 1 miles on both sides is consideredinternational waters.

uestion ! Answer

$f a foreign merchant vessel is in the centerlane and a crime was committed there' under the$nternational (aw )ule' what law will appl *

&he law of the country where that vessel isregistered will apply, because the crime is deemed tohave been committed in the high seas.

2nder the #rchipelagic /ule as declared in #rticle 3, of the Constitution, all waters in the archipelagoregardless of breadth width, or dimension are part of our national territory. 2nder this /ule, there is nomore center lane, all these waters, regardless of their dimension or width are part of hilippine territory.

4o if a foreign merchant vessel is in the center laneand a crime was committed, the crime will be

prosecuted before hilippine courts.

Three international law theories on aerial "uris#iction

536 &he atmosphere over the country is free andnot sub"ect to the "urisdiction of the sub"acent state, except for the protection of its nationalsecurity and public order.

2nder this theory, if a crime is committed onboard a foreign aircraft at the atmosphere of acountry, the law of that country does not govern unless the crime a ects the nationalsecurity.

576 /elative &heory 8 &he sub"acent stateexercises "urisdiction over its atmosphere only

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sentence, even if there is no more legal basisto hold them in the penitentiary. &his is sobecause prisoners are accountabilities of thegovernment; they are not supposed to step out simply because their sentence has already been, or that the law under which they aresentenced has been declared null and void.

If they are not discharged from con nement, a petition for habeas corpus should be led totest the legality of their continued con nement

in "ail.

If the convict, on the other hand, is a habitualdelin


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at that time, there were only a handful who understood4panish.

Co#e of Crimes *( Gue'arra

@uring the time of resident >anuel /oxas, a codecommission was tas)ed to draft a penal code that willbe more in )eeping with the custom, traditions, traitsas well as beliefs of the *ilipinos. @uring that time, thecode committee drafted the so'called Code of Crimes.&his too, slept in Congress. It was never enacted into

law. #mong those who participated in drafting theCode of Crimes was ?udge uellermo uevarra.

4ince that Code of Crimes was never enacted as law,he enacted his own code of crimes. 9ut it was theCode of Crimes that that was presented in the 9atasanas Cabinet 9ill no. 7. 9ecause the code of crimes

prepared by uevarra was more of a moral code thana penal code, there were several oppositions against the code.

$ropose# $enal Co#e of the $hilippines

&hrough #ssemblyman stelito >endo+a, the 2 awCenter formed a committee which drafted the enalCode of the hilippines. &his enal Code of thehilippines was substituted as Cabinet 9ill no. 7 andthis has been discussed in the oor of the 9atasangambansa. 4o the Code of Crimes now in Congresswas not the Code of Crimes during the time of resident /oxas. &his is a di erent one. Cabinet 9ill%o. 7 is the enal Code of the hilippines drafted by acode committee chosen by the 2 aw Center, one of them was rofessor -rtega. &here were sevenmembers of the code committee. It would have beenenacted into law it not for the dissolution of the9atasang ambansa dissolved. &he Congress was

planning to revive it so that it can be enacted into law.

%pecial Laws

@uring >artial aw, there are many residential@ecrees issued aside from the special laws passed by the hilippine egislature Commission. #ll thesespecial laws, which are penal in character, are part of our enal Code.

-I00ERENT $1ILO%O$1IE% /N-ERLYING T1ECRIMINAL LAW %Y%TEM

1. +lassical or 5uristic "hilosoph

2. "ositivit or )ealistic "hilosoph

3. 6cletic or Mixed "hilosoph

Classical or 4uristic $hilosoph(

9est remembered by the maxim D#n eye for an eye, atooth for a tooth.E N%oteH If you want to impress theexaminer, use the latin version 8 -culo pro oculo,dente pro dente.O

&he purpose of penalty is retribution. &he o ender ismade to su er for the wrong he has done. &here isscant regard for the human element of the crime. &helaw does not loo) into why the o ender committed the

crime. Capital punishment is a product of this )ind of this school of thought. >an is regarded as a moralcreature who understands right from wrong. 4o that when he commits a wrong, he must be prepared toaccept the punishment therefore.

$ositi'ist or Realistic $hilosoph(

&he purpose of penalty is reformation. &here is great respect for the human element because the o ender isregarded as socially sic) who needs treatment, not

punishment. Cages are li)e asylums, "ails li)ehospitals. &hey are there to segregate the o endersfrom the DgoodE members of society.

*rom this philosophy came the "ury system, where the penalty is imposed on a case to case basis after examination of the o ender by a panel of socialscientists which do not include lawyers as the panelwould not want the law to in uence their consideration.

Crimes are regarded as social phenomena whichconstrain a person to do wrong although not of his ownvolition. # tendency towards crime is the product of one’s environment. &here is no such thing as a naturalborn )iller.

&his philosophy is critici+ed as being too lenient.

Eclectic or Mi5e# $hilosoph(

&his combines both positivist and classical thin)ing.Crimes that are economic and social and nature shouldbe dealt with in a positivist manner; thus, the law ismore compassionate. !einous crimes should be dealt with in a classical manner; thus, capital punishment.

4ince the /evised enal Code was adopted from the4panish Codigo enal, which in turn was copied from

the *rench Code of 3 3J which is classical in character,it is said that our Code is also classical. &his is nolonger true because with the #merican occupation of the hilippines, many provisions of common law havebeen engrafted into our penal laws. &he /evised enalCode today follows the mixed or eclectic philosophy.*or example, intoxication of the o ender is consideredto mitigate his criminal liability, unless it is intentionalor habitual; the age of the o ender is considered; andthe woman who )illed her child to conceal her dishonor has in her favor a mitigating circumstance.

MALA IN %E AN- MALA $RO1I+ITA

7iolations of the )evised "enal +ode are referred to asmalum in se' which literall means' that the act isinherentl evil or bad or per se wrongful. n the otherhand' violations of special laws are generall referredto as malum prohibitum.

8ote' however' that not all violations of special lawsare mala prohibita. /hile intentional felonies arealwa s mala in se' it does not follow that prohibitedacts done in violation of special laws are alwa s malaprohibita. 6ven if the crime is punished under a speciallaw' if the act punished is one which is inherentlwrong' the same is malum in se' and' therefore' goodfaith and the lack of criminal intent is a valid defense9unless it is the product of criminal negligence or culpa.

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(ikewise when the special laws re,uires that thepunished act be committed knowingl and willfull 'criminal intent is re,uired to be proved before criminalliabilit ma arise.

/hen the act penali%ed is not inherentl wrong' it iswrong onl because a law punishes the same.

;or example' "residential


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casting his vote is not wrong because there is a provision of law declaring it as a crime, but becausewith or without a law, that act is wrong. In other words, it is malum in se. Conse


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vessel is in the high seas or open seas, there is nooccasion to apply the two rules. If it is not within the

"urisdiction of any country, these rules will not apply.

uestion ! Answer

- vessel is not registered in the "hilippines. -crime is committed outside "hilippine territorial waters.

!hen the vessel entered our territor. /ill the )evised"enal +ode appl *

Qes. 2nder the old /ules of Criminalrocedure, for our courts to ta)e cogni+ance of any crime committed on board a vessel during its voyage,the vessel must be registered in the hilippines inaccordance with hilippine laws.2nder the /evised /ules of Criminal rocedure,however, the re


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s)ill is lac)ing. (ithout voluntariness, there can be nodolo or culpa, hence, there is no felony.

In a case decided by the 4upreme Court, two personswent wild boar hunting. -n their way, they met edrostanding by the door of his house and they as)ed himwhere they could nd wild boars. edro pointed to a

place where wild boars were supposed to be found,and the two proceeded thereto. 2pon getting to the

place, they saw something moving, they shot,unfortunately the bullet ricocheted )illing edro. It was

held that since there was neither dolo nor culpa, thereis no criminal liability.

In %$ v. &indo', accused had an altercation with R. R snatched the bolo from the accused. &o prevent R from using his bolo on him, accused tried to get it from

R. 2pon pulling it bac) towards him, he hit someonefrom behind, instantly )illing the latter. &he accusedwas found to be not liable. In criminal law, there is

pure accident, and the principle damnum abs


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&he technical term mens rea is sometimes referred toin common parlance as the gravamen of the o ense.&o a layman, that is what you call the DbullseyeE of thecrime. &his term is used synonymously with criminalor deliberate intent, but that is not exactly correct.

>ens rea of the crime depends upon the elements of the crime. Qou can only detect the mens rea of a crimeby )nowing the particular crime committed. (ithout reference to a particular crime, this term ismeaningless. *or example, in theft, the mens rea is

the ta)ing of the property of another with intent togain. In falsi cation, the mens rea is the e ecting of the forgery with intent to pervert the truth. It is not merely writing something that is not true; the intent to

pervert the truth must follow the performance of theact.

In criminal law, we sometimes have to consider thecrime on the basis of intent. *or example, attemptedor frustrated homicide is distinguished from physicalin"uries only by the intent to )ill. #ttempted rape isdistinguished from acts of lasciviousness by the intent to have sexual intercourse. In robbery, the mens rea isthe ta)ing of the property of another coupled with theemployment of intimidation or violence upon personsor things; remove the employment of force or intimidation and it is not robbery anymore.

Mista8e of fact

(hen an o ender acted out of a misapprehension of fact, it cannot be said that he acted with criminalintent. &hus, in criminal law, there is a Dmista)e of factE. (hen the o ender acted out of a mista)e of fact, criminal intent is negated, so do not presume that the act was done with criminal intent. &his isabsolutory if crime involved dolo.

>ista)e of fact would be relevant only when the felony

would have been intentional or through dolo, but not when the felony is a result of culpa. (hen the felony isa product of culpa, do not discuss mista)e of fact.(hen the felonious act is the product of dolo and theaccused claimed to have acted out of mista)e of fact,there should be no culpa in determining the real facts,otherwise, he is still criminally liable, although heacted out of a mista)e of fact. >ista)e of fact is only adefense in intentional felony but never in culpablefelony.

Real concept of culpa

2nder #rticle 1, it is clear that culpa is "ust a modality by which a felony may be committed. # felony may becommitted or incurred through dolo or culpa. Culpa is

"ust a means by which a felony may result.

In #rticle 10A, you have criminal negligence as anomission which the article de nitely or speci cally

penali+ed. &he concept of criminal negligence is theinexcusable lac) of precaution on the part of the

person performing or failing to perform an act. If thedanger impending from that situation is clearly manifest, you have a case of rec)less imprudence. 9ut if the danger that would result from such imprudenceis not clear, not manifest nor immediate you have only a case of simple negligence. 9ecause of #rticle 10A,one might thin) that criminal negligence is the one

being punished. &hat is why a


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to property, if the damage is more than 7,JJJ.JJ,would be under the "urisdiction of the /egional &rialCourt because the imposable ne ranges up to threetimes the value of the damage.

In #eople v. An eles, the prosecution led aninformation against the accused in an inferior court for slight physical in"uries through rec)less imprudenceand led also damage to property in the /egional &rialCourt. &he accused pleaded guilty to the charge of slight physical in"uries. (hen he was arraigned before

the /egional &rial Court, he invo)ed double "eopardy.!e was claiming that he could not be prosecuted againfor the same criminal negligence. &he 4upreme Court ruled that here is no double "eopardy because thecrimes are two di erent crimes. 4light physicalin"uries and damage to property are two di erent crimes.

In so ruling that there is no double "eopardy, the4upreme Court did not loo) into the criminalnegligence. &he 4upreme Court loo)ed into the

physical in"uries and the damage to property as thefelonies and not criminal negligence.

In several cases that followed, the 4upreme Court ruled that where several conse


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whatever happens on that wound, he should be made punishable for that.

In %rbano v. AC, # and 9 had a edical evidence were presented that tetanus toxic is good only for twowee)s. &hat if, indeed, the victim had incurred tetanus

poisoning out of the wound in icted by #, he would not have lasted two months. (hat brought about tetanusto infect the body of 9 was his wor)ing in his farmusing his bare hands. 9ecause of this, the 4upremeCourt said that the act of 9 of wor)ing in his farmwhere the soil is lthy, using his own hands, is ane$cient supervening cause which relieves # of any liability for the death of 9. #, if at all, is only liable for

physical in"uries in icted upon 9.

If you are confronted with this facts of the 2rbanocase, where the o ended party died because of tetanus poisoning, reason out according to that reasoning laid down by the 4upreme Court, meaning tosay, the incubation period of the tetanus poisoning wasconsidered. 4ince tetanus toxic would a ect the victimfor no longer than two wee)s,, the fact that the victimdied two months later shows that it is no longer

tetanus brought about by the act of the accused. &hetetanus was gathered by his wor)ing in the farm andthat is already an e$cient intervening cause.

&he one who caused the proximate cause is the oneliable. &he one who caused the immediate cause isalso liable, but merely contributory or sometimestotally not liable.

Wrongful act #one *e #i)erent from what wasinten#e#

(hat ma)es the rst paragraph of #rticle = confusingis the


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In error in personae, the intended victim was not at thescene of the crime. It was the actual victim uponwhom the blow was directed, but he was not really theintended victim. &here was really a mista)e in identity.

&his is very important because #rticle =B applies only in a case of error in personae and not in a case of abberatio ictus.

In #rticle =B, when the crime intended is more serious

than the crime actually committed or vice'versa,whichever crime carries the lesser penalty, that penalty will be the one imposed. 9ut it will be imposedin the maximum period. *or instance, the o ender intended to commit homicide, but what was actually committed with parricide because the person he )illedby mista)e was somebody related to him within thedegree of relationship in parricide. In such a case, theo ender will be charged with parricide, but the penalty that would be imposed will be that of homicide. &his isbecause under #rticle =B, the penalty for the lesser crime will be the one imposed, whatever crime theo ender is prosecuted under. In any event, theo ender is prosecuted for the crime committed not for the crime intended.

IllustrationsH

# thought of )illing 9. !e positioned himself at onecorner where 9 would usually pass. (hen a gureresembling 9 was approaching, # hid and when that gure was near him, he suddenly hit him with a pieceof wood on the nape, )illing him. 9ut it turned out that it was his own father. &he crime committed is

parricide, although what was intended was homicide. #rticle =B, therefore, will apply because out of amista)e in identity, a crime was committed di erent from that which was intended.

In another instance, # thought of )illing 9. Instead of 9, C passed. # thought that he was 9, so he hit C onthe nec), )illing the latter. ?ust the same, the crimeintended to be committed is homicide and what wascommitted is actually homicide, #rticle =B does not apply. !ere, error in personae is of no e ect.

!ow does error in personae a ect criminal liability of the o enderP

rror in personae is mitigating if the crime committedis di erent from that which was intended. If the crimecommitted is the same as that which was intended,error in personae does not a ect the criminal liability of the o ender.

In mista)e of identity, if the crime committed was thesame as the crime intended, but on a di erent victim,error in persona does not a ect the criminal liability of the o ender. 9ut if the crime committed was di erent from the crime intended, #rticle =B will apply and the

penalty for the lesser crime will be applied. In a way,mista)e in identity is a mitigating circumstance where

#rticle =B applies. (here the crime intended is moreserious than the crime committed, the error in personais not a mitigating circumstance$raeter intentionem

In #eople v. /aco o, 03 # il 02 , two persons


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empt. $s an impossible crime committed* $f not' whatcrime is possibl committed*

&his is not an impossible crime. &hat is only true if there is nothing more to steal. 9ut in adepartment store, where there is plenty to steal, not only the money inside the vault or safe. &he fact that the vault had turned out to be empty is not really inherently impossible to commit the crime of robbery.&here are other things that he could ta)e. &he crimecommitted therefore is attempted robbery, assuming

that he did not lay his hands on any other article. &hiscould not be trespass to dwelling because there areother things that can be stolen.

4. - and were lovers. was willing tomarr - except that - is alread married. - thought of killing his wife. @e prepared her breakfast evermorning' and ever morning' he placed a little dose of arsenic poison into the breakfast of the wife. !he wifeconsumed all the food prepared b her husbandincluding the poison but nothing happened to the wife.ecause of the volume of the household chores thatthe wife had to attend to dail ' she developed aph sical condition that rendered her so strong andresistance to an kind of poisoning' so the amount of poison applied to her breakfast has no e#ect to her. $sthere an impossible crime*

%o impossible crime is committed because thefact itself stated that what prevented the poison fromta)ing e ect is the physical condition of the woman.4o it implies that if the woman was not of such

physical condition, the poison would have ta)en e ect.!ence, it is not inherently impossible to reali+e the)illing. &he crime committed is frustrated parricide.

If it were a case of poisoning , an impossiblecrime would be constituted if a person who wasthin)ing that it was a poison that he was putting into

the food of the intended victim but actually it wasvetsin or sugar or soda. 2nder any and allcircumstances, the crime could not have been reali+ed.9ut if due to the and washospitali+ed, then it would not be a case of impossiblecrime anymore. It would be a case of physical in"uries,if the act done does not amount to some other crimeunder the /evised enal Code.

@o not confuse an impossible crime with theattempted or frustrated stage.

:. cott and +harles are roommate in aboarding house. 6ver da ' cott leaves for work butbefore leaving he would lock the food cabinet where hekept his food. +harles resented this. ne da ' he gotan electric cord tied the one end to the door knob andplugged the other end to an electric outlet. !he ideawas that' when cott comes home to open the doorknob' he would be electrocuted. Lnknown to +harles'cott is working in an electronic shop where he

received a dail dosage of electric shock. /hen cottopened the doorknob' nothing happened to him. @ewas &ust surprised to nd out that there was an electriccord plugged to the outlet and the other hand to thedoor knob. /hether an impossible crime wascommitted or not*

It is not an impossible crime. &he meansemployed is not inherently impossible to bring about the conse


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proper way. If you want to play safe, you state therethat although an impossible crime is constituted, yet it is a principle of criminal law that he will only be

penali+ed for an impossible crime if he cannot be punished under some other provision of the /evised

enal Code.

If the


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%TAGE% IN T1E COMMI%%ION O0 0ELONY

&he classi cation of stages of a felony in #rticle 0 aretrue only to crimes under the /evised enal Code. &hisdoes not apply to crimes punished under special laws.9ut even certain crimes which are punished under the/evised enal Code do not admit of these stages.

&he purpose of classifying penalties is to bring about a proportionate penalty and e


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- awakened one morning with a man sleepingin his sofa. eside the man was a bag containingpicklocks and similar tools. @e found out that the manentered his sala b cutting the screen on his window. $f ou were to prosecute this fellow' for what crime areou going to prosecute him*

&he act done by him of entering through anopening not intended for the purpose is only


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4imilarly, when a public o$cer demands aconsideration by o$cial duty, the corruptor turns downthe demand, there is no bribery.

If the one to whom the demand was made pretendedto give, but he had reported the matter to higher authorities, the money was mar)ed and this wasdelivered to the public o$cer. If the public o$cer wasarrested, do not thin) that because the public o$cer already had the money in his possession, the crime isalready frustrated bribery, it is only attempted bribery.

&his is because the supposed corruptor has nointention to corrupt. In short, there is no meeting of the minds. -n the other hand, if there is a meeting of the minds, there is consummated bribery or consummated corruption. &his leaves out thefrustrated stage because of the manner of committingthe crime.

9ut indirect bribery is always consummated. &his isbecause the manner of consummating the crime doesnot admit of attempt or frustration.

Qou will notice that under the /evised enal Code,when it ta)es two to commit the crime, there couldhardly be a frustrated stage. *or instance, the crime of adultery. &here is no frustrated adultery. -nly attempted or consummated. &his is because it re


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because he believed that he had done enough toconsummate the crime, 4upreme Court said thesub"ective phase has passed. &his was applied in thecase of %$ v. -alde*, where the o ender, havingalready put )erosene on the "ute sac)s, lighted thesame, he had no reason not to believe that the rewould spread, so he ran away. &hat act demonstratedthat in his mind, he believed that he has performed allthe acts of execution and that it is only a matter of time that the premises will burn. &he fact that theoccupant of the other room came out and put out the

re is a cause independent of the will of the perpetrator.

&he ruling in the case of %$ v. -alde* is still correct.9ut in the case of #eople v. /arcia, the situation isdi erent. !ere, the o ender who put the torch over the house of the o ended party, the house being anipa hut, the torch which was lighted could easily burnthe roof of the nipa hut. 9ut the torch burned out.

In that case, you cannot say that the o ender believedthat he had performed all the acts of execution. &herewas not even a single burn of any instrument or agency of the crime.

&he analysis made by the Court of #ppeals is stillcorrectH that they could not demonstrate a situationwhere the o ender has performed all the acts of execution to bring about the crime of arson and thesituation where he has not yet performed all the actsof execution. &he weight of the authority is that thecrime of arson cannot be committed in the frustratedstage. &he reason is because we can hardly determinewhether the o ender has performed all the acts of execution that would result in arson, as aconse


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of estafa to be consummated, there must bemisappropriation already done, so that there isdamage already su ered by the o ended party. If there is no damage yet, the estafa can only befrustrated or attempted.

-n the other hand, if it were a crime of theft, damageor intent to cause damage is not an element of theft.(hat is necessary only is intent to gain, not even gainis important. &he mere intent to derive some pro t isenough but the thin)ing must be complete before a

crime of theft shall be consummated. &hat is why wemade that distinction between theft and estafa.

If the personal property was received by the o ender,this is where you have to decide whether what wastransferred to the o ender is "uridical possession or

physical possession only. If the o ender did not receive the personal property, but too) the same fromthe possession of the owner without the latter’sconsent, then there is no problem. &hat cannot beestafa; this is only theft or none at all.

In estafa, the o ender receives the property; he doesnot ta)e it. 9ut in receiving the property, the recipient may be committing theft, not estafa, if what wastransferred to him was only the physical or material

possession of the ob"ect. It can only be estafa if what was transferred to him is not only material or physical

possession but "uridical possession as well.

(hen you are discussing estafa, do not tal) about intent to gain. In the same manner that when you arediscussing the crime of theft, do not tal) of damage.

&he crime of theft is the one commonly given under #rticle 0. &his is so because the concept of theft under the /evised enal Code di ers from the concept of larceny under #merican common law. 2nder #mericancommon law, the crime of larceny which is e


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&his is very decisive in the problem because in most problems given in the bar, the o ender, after havingta)en the ob"ect out of the container changed his mindand returned it. Is he criminally liableP @o not ma)e amista)e by saying that there is a desistance. If thecrime is one of theft, the moment he brought it out, it was consummated. &he return of the thing cannot bedesistance because in criminal law, desistance is trueonly in the attempted stage. Qou cannot tal) of

desistance anymore when it is already in theconsummated stage. If the o ender has already ac


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IllustrationH

#, 9, C and @ came to an agreement to commit rebellion. &heir agreement was to bring about therebellion on a certain date. ven if none of them has

performed the act of rebellion, there is already criminalliability arising from the conspiracy to commit therebellion. 9ut if anyone of them has committed theovert act of rebellion, the crime of all is no longer conspiracy to commit rebellion but rebellion itself. &hissubsists even though the other co'conspirator does not )now that one of them had already done the act of rebellion.

&his legal conse


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(here there are several persons who participated, li)ein a )illing, and they attac)ed the victimsimultaneously, so much so that it cannot be )nownwhat participation each one had, all these participantsshall be considered as having acted in conspiracy andthey will be held collectively responsible.@o not search for an agreement among the

participants. If they acted simultaneously to bringabout their common intention, conspiracy exists. #ndwhen conspiracy exists, do not consider the degree of

participation of each conspirator because the act of one is the act of all. #s a general rule, they have e


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ransac)ing the second oor, the owner was awa)ened. # )illed him. #, 9 and C will be liable for robbery withhomicide. &his is because, it is well settled that any )illing ta)ing place while robbery is being committedshall be treated as a single indivisible o ense.

#s a general rule, when there is conspiracy, the rule isthat the act of one is the act of all. &his principleapplies only to the crime agreed upon.

&he exception is if any of the co'conspirator wouldcommit a crime not agreed upon. &his happens whenthe crime agreed upon and the crime committed by one of the co'conspirators are distinct crimes.

xception to the exceptionH In acts constituting asingle indivisible o ense, even though the co'conspirator performed di erent acts bringing about thecomposite crime, all will be liable for such crime. &hey can only evade responsibility for any other crimeoutside of that agreed upon if it is proved that the

particular conspirator had tried to prevent thecommission of such other act.

&he rule would be di erent if the crime committed wasnot a composite crime.

IllustrationH

#, 9 and C agreed to )ill @. (hen they saw theopportunity, #, 9 and C )illed @ and after that, # and 9ran into di erent directions. C inspected the poc)et of the victim and found that the victim was wearing a ring8 a diamond ring 8 and he too) it. &he crimescommitted are homicide and theft. #s far as thehomicide is concerned, #, 9 and C are liable because

that was agreed upon and theft was not an integral part of homicide. &his is a distinct crime so the rulewill not apply because it was not the crime agreedupon. Insofar as the crime of theft is concerned, C willbe the only one liable. 4o C will be liable for homicideand theft.

CLA%%I0ICATION O0 0ELONIE%

&his


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been loose, if there was already "udgment that was passed, it can be promulgated even if absent under the %ew /ules on Criminal rocedure. If the crime iscorrectional, it prescribes in ten years, except arrestomayor, which prescribes in ve years.

%/$$LETORY A$$LICATION O0 T1E RE&I%E-$ENAL CO-E

#rticle 3J is the conseurder would be a


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&hen, #rticle B provides how criminal liability isextinguishedH

@eath of the convict as to the personal penalties, andas to pecuniary penalties, liability therefor isextinguished if death occurs before nal "udgment;4ervice of the sentence;

#mnesty;

#bsolute pardon;

rescription of the crime;

rescription of the penalty; and

>arriage of the o ended woman as provided in #rticle1==.

2nder #rticle 7=G, a legally married person who )ills or in icts physical in"uries upon his or her spouse whomhe surprised having sexual intercourse with his or her

paramour or mistress in not criminally liable.

2nder #rticle 73B, discovering secrets through sei+ureof correspondence of the ward by their guardian is not

penali+ed.

2nder #rticle 117, in the case of theft, swindling andmalicious mischief, there is no criminal liability but only civil liability, when the o ender and the o ended party are related as spouse, ascendant, descendant, brother and sister'in'law living together or where in case thewidowed spouse and the property involved is that of the deceased spouse, before such property had passedon to the possession of third parties.

2nder #rticle 1==, in cases of seduction, abduction,acts of lasciviousness, and rape, the marriage of theo ended party shall extinguish the criminal action.

#bsolutory cause has the e ect of an exemptingcircumstance and they are predicated on lac) of voluntariness li)e instigation. Instigation is associatedwith criminal intent. @o not consider culpa inconnection with instigation. If the crime is culpable, donot tal) of instigation. In instigation, the crime iscommitted with dolo. It is confused with entrapment.ntrapment is not an absolutory cause. ntrapment does not exempt the o ender or mitigate his criminalliability. 9ut instigation absolves the o ender fromcriminal liability because in instigation, the o ender simply acts as a tool of the law enforcers and,therefore, he is acting without criminal intent becausewithout the instigation, he would not have done thecriminal act which he did upon instigation of the lawenforcers.

@i erence between instigation and entrapment

In instigation, the criminal plan or design exists in themind of the law enforcer with whom the personinstigated cooperated so it is said that the personinstigated is acting only as a mere instrument or toolof the law enforcer in the performance of his duties.

-n the other hand, in entrapment, a criminal design isalready in the mind of the person entrapped. It did not emanate from the mind of the law enforcer entrappinghim. ntrapment involves only ways and means whichare laid down or resorted to facilitate the apprehensionof the culprit.

IllustrationsH

#n agent of the narcotics command had been tippedo that a certain house is being used as an opium denby prominent members of the society. &he lawenforcers cannot themselves penetrate the housebecause they do not belong to that circle so what they did was to convince a prominent member of society tovisit such house to nd out what is really happeninginside and that so many cars were congregating there.&he law enforcers told the undercover man that if he iso ered a cigarette, then he should try it to nd out whether it is loaded with dangerous drugs or not. &hisfellow went to the place and mingled there. &he timecame when he was o ered a stic) of cigarette and hetried it to see if the cigarette would a ect him.2nfortunately, the raid was conducted and he wasamong those prosecuted for violation of the @angerous@rugs #ct. Is he criminally liableP %o. !e was only there upon instigation of the law enforcers. -n his own,he would not be there. &he reason he is there isbecause he cooperated with the law enforcers. &here isabsence of criminal intent.

If the law enforcer were able to enter the house andmingle there, nobody would o er him a cigarettebecause he is un)nown. (hen he saw somebody, he

pleaded to spare him a smo)e so this fellow handed tohim the cigarette he was smo)ing and found out that it was loaded with a dangerous drug. !e arrested thefellow. @efense was that he would not give a cigaretteif he was not as)ed. Is he criminally liableP Qes. &his

is a case of entrapment and not instigation. ven if the law enforcer did not as) for a cigarette, theo ender was already committing a crime. &he lawenforcer ascertained if it is a violation of the@angerous @rugs #ct. &he means employed by thelaw enforcer did not ma)e the accused commit acrime. ntrapment is not an absolutory cause becausein entrapment, the o ender is already committing acrime.

In another instance, a law enforcer pretended to be abuyer of mari"uana. !e approached a personsuspected to be a pusher and prevailed upon this

person to sell him two )ilos of dried mari"uana leaves

and this fellow gave him and delivered them. !eapprehended the fellow. @efense is instigation,because he would not have come out for the mari"uanaleaves if the law enforcer had not instigated him. It isa case of entrapment because the fellow is already committing the crime from the mere fact that he is

possessing mari"uana. ven without selling, there is acrime committed by himH illegal possession of dangerous drugs. !ow can one sell mari"uana if he isnot in possession thereof. &he law enforcer is only ascertaining if this fellow is selling mari"uana leaves, so

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this is entrapment, not instigation. 4elling is not necessary to commit the crime, mere possession isalready a crime.

# fellow wants to ma)e money. !e was approached by a law enforcer and was as)ed if he wanted to deliver a

pac)age to a certain person. (hen that fellow wasdelivering the pac)age, he was apprehended. Is hecriminally liableP &his is a case of instigation; he is not committing a crime.

# policeman suspected a fellow selling mari"uana. &helaw enforcer as)ed him, D#re you selling thatP !owmuchP Could you bring that to the other fellow therePE (hen he brought it there, the person, who happens tobe a law enforcer, to whom the pac)age was brought to found it to be mari"uana. ven without bringing, heis already possessing the mari"uana. &he fact that hewas appointed to another person to nd out itscontents, is to discover whether the crime iscommitted. &his is entrapment.

&he element which ma)es instigation an absolutory cause is the lac) of criminal intent as an element of voluntariness.

If the instigator is a law enforcer, the person instigatedcannot be criminally liable, because it is the lawenforcer who planted that criminal mind in him tocommit the crime, without which he would not havebeen a criminal. If the instigator is not a law enforcer,both will be criminally liable, you cannot have a case of instigation. In instigation, the private citi+en only cooperates with the law enforcer to a point when the

private citi+en upon instigation of the law enforcer incriminates himself. It would be contrary to public

policy to prosecute a citi+en who only cooperated withthe law enforcer. &he private citi+en believes that he isa law enforcer and that is why when the law enforcer tells him, he believes that it is a civil duty to cooperate.

If the person instigated does not )now that the personis instigating him is a law enforcer or he )nows him tobe not a law enforcer, this is not a case of instigation.&his is a case of inducement, both will be criminally liable.

In entrapment, the person entrapped should not )nowthat the person trying to entrap him was a lawenforcer. &he idea is incompatible with each other because in entrapment, the person entrapped isactually committing a crime. &he o$cer whoentrapped him only lays down ways and means tohave evidence of the commission of the crime, but

even without those ways and means, the personentrapped is actually engaged in a violation of the law.

Instigation absolves the person instigated fromcriminal liability. &his is based on the rule that a personcannot be a criminal if his mind is not criminal. -n theother hand, entrapment is not an absolutory cause. It is not even mitigating.

In case of somnambulism or one who acts whilesleeping, the person involved is de nitely actingwithout freedom and without su$cient intelligence,

because he is asleep. !e is moving li)e a robot,unaware of what he is doing. 4o the element of voluntariness which is necessary in dolo and culpa isnot present. 4omnambulism is an absolutory cause. If element of voluntariness is absent, there is no criminalliability, although there is civil liability, and if thecircumstance is not among those enumerated in #rticle37, refer to the circumstance as an absolutory cause.

>ista)e of fact is not absolutory cause. &he o ender isacting without criminal intent. 4o in mista)e of fact, it is necessary that had the facts been true as theaccused believed them to be, this act is "usti ed. If not, there is criminal liability, because there is nomista)e of fact anymore. &he o ender must believehe is performing a lawful act.

E5tenuating circumstances &he e ect of this is to mitigate the criminal liability of the o ender. In other words, this has the same e ect as mitigating circumstances, only you do not call it mitigating because this is not found in #rticle 31.

IllustrationsH

#n unwed mother )illed her child in order to conceal adishonor. &he concealment of dishonor is anextenuating circumstance insofar as the unwed mother or the maternal grandparents is concerned, but not insofar as the father of the child is concerned. >other )illing her new born child to conceal her dishonor,

penalty is lowered by two degrees. 4ince there is amaterial lowering of the penalty or mitigating the

penalty, this is an extenuating circumstance.

&he concealment of honor by mother in the crime of

infanticide is an extenuating circumstance but not inthe case of parricide when the age of the victim isthree days old and above.

In the crime of adultery on the part of a marriedwoman abandoned by her husband, at the time shewas abandoned by her husband, is it necessary for her to see) the company of another man. #bandonment by the husband does not "ustify the act of the woman.It only extenuates or reduces criminal liability. (henthe e ect of the circumstance is to lower the penalty there is an extenuating circumstance.

# )leptomaniac is one who cannot resist thetemptation of stealing things which appeal to hisdesire. &his is not exempting. -ne who is a)leptomaniac and who would steal ob"ects of his desireis criminally liable. 9ut he would be given the bene t of a mitigating circumstance analogous to paragraph Bof #rticle 31, that of su ering from an illness whichdiminishes the exercise of his will power without,however, depriving him of the consciousness of his act.4o this is an extenuating circumstance. &he e ect isto mitigate the criminal liability.

-istinctions *etween "ustif(ing circumstancesan# e5empting circumstances

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In "ustifying circumstances 8

536 &he circumstance a ects the act, not theactor;

576 &he act complained of is considered to havebeen done within the bounds of law; hence, it is legitimate and lawful in the eyes of the law;

516 4ince the act is considered lawful, there is nocrime, and because there is no crime, there is

no criminal;

5=6 4ince there is no crime or criminal, there is nocriminal liability as well as civil liability.

In exempting circumstances 8

536 &he circumstances a ect the actor, not the act;

576 &he act complained of is actually wrongful, but the actor acted without voluntariness. !e is amere tool or instrument of the crime;

516 4ince the act complained of is actually wrongful, there is a crime. 9ut because theactor acted without voluntariness, there isabsence of dolo or culpa. &here is no criminal;

5=6 4ince there is a crime committed but there isno criminal, there is civil liability for the wrongdone. 9ut there is no criminal liability.!owever, in paragraphs = and G of #rticle 37,there is neither criminal nor civil liability.

(hen you apply for "ustifying or exemptingcircumstances, it is confession and avoidance andburden of proof shifts to the accused and he can nolonger rely on wea)ness of prosecution’s evidence

4ustif(ing circumstances

4ince the "ustifying circumstances are in the nature of defensive acts, there must be always unlawfulaggression. &he reasonableness of the meansemployed depends on the gravity of the aggression. If the unlawful aggressor was )illed, this can only be

"usti ed if it was done to save the life of the persondefending or the person being defended. &he e


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they wrestled for possession of the gun. &he policeman who shot the other guy fell on the oor. -nthat point, this policeman who was shot at the thighwas already able to get hold of the revolver. In that

position, he started emptying the revolver of the other policeman who was lying on the oor. In this case, it was held that the defense of self'defense is noavailable. &he shooting was not "usti ed. In #eople v. odri ue*, a woman went into thehouse of another woman whom she suspected of having an a air with her husband. 4he started pouringgasoline on the house of the woman. 4ince the womanhas children inside the house, she "umped out to

prevent this other woman from pouring gasolinearound the house. &he woman who was pouringgasoline had a bolo, so she started hac)ing the other woman with it. &hey grappled with the bolo. #t that moment, the one who "umped out of the house wasable to wrest the bolo away and started hac)ing theother woman. It was held that the hac)ing was not

"usti ed. #ctually, when she )illed the supposedunlawful aggressor, her life and limb were no longer inimminent danger. &hat is the focal point.

#t the time the accused )illed the supposed unlawfulaggressor, was her life in dangerP If the answer is no,there is no self'defense. 9ut while there may be no

"ustifying circumstance, do not forget the incompleteself'defense. &his is a mitigating circumstance under

paragraph 3 of #rticle 31. &his mitigatingcircumstance is either privileged or ordinary. If ordinary, it has the e ect of reducing the imposable

penalty to the minimum period. 9ut if it is privileged,it has the e ect of lowering the penalty by one to twodegrees, depending on how the court will regard theabsence or presence of conditions to "ustify the act.


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conditions to "ustify the act or to exempt from criminalliability, the presence of one shall be regarded as thema"ority.

tate of necessit

&he state of necessity must not have been created by the one invo)ing the "ustifying circumstances. *or example, # drove his car beyond the speed limit somuch so that when he reached the curve, his vehicles)idded towards a ravine. !e swerved his car towards

a house, destroying it and )illing the occupant therein. # cannot be "usti ed because the state of necessity was brought about by his own felonious act.

Civil liability referred to in a state of necessity is basednot on the act committed but on the bene t derivedfrom the state of necessity. 4o the accused will not becivilly liable if he did not receive any bene t out of thestate of necessity. -n the other hand, persons who didnot participate in the damage or in"ury would be protanto civilly liable if they derived bene t out of thestate of necessity.

Civil liability is based on the bene t derived and not onthe act, damage or in"ury caused. It is wrong to treat this as an exception to the rule that in "ustifyingcircumstances, there is no criminal nor civil liability, onthe principle that Dno one should enrich himself at theexpense of anotherE.

IllustrationH

# and 9 are owners of ad"oining lands. # owns theland for planting certain crops. 9 owns the land for raising certain goats. C used another land for avegetable garden. &here was heavy rain and oods.@am was opened. C drove all the goats of 9 to theland of #. &he goats rushed to the land of # to be

saved, but the land of # was destroyed. &he author of the act is C, but C is not civilly liable because he didnot receive bene ts. It was 9 who was bene ted,although he was not the actor. !e cannot claim that it was fortuitous event. 9 will answer only to the extent of the bene t derived by him. If C who drove all thegoats is accused of malicious mischief, his defensewould be that he acted out of a state of necessity. !ewill not be civilly liable.;ul llment of dut

In the "ustifying circumstance of a person having actedout of ful llment of a duty and the lawful exercise of aright or o$ce, there are only two conditionsH

536 &he felony was committed while the o ender was in the ful llment of a duty or in the lawfulexercise of a right or o$ce; and

576 &he resulting felony is the unavoidableconse


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be entitled to the reduction of the penalty by at least two degrees.

(hen the o ender is over nine but below 3A,the penalty to be imposed is discretionary onthe court, but lowered by at least two degrees.It may be lowered by three or four degrees,depending upon whether the court deems best for the interest of the o ender. &he limitationthat it should be lowered by at least twodegrees is "ust a limitation on the power of the

court to reduce the penalty. It cannot be lessthan two degrees.

5=6 If the o ender is 3A years old and above but below 3 , there is no exemption anymore but he is also given the bene t of a suspendedsentence under the conditions stated earlier and if at the time the sentence is promulgated,he is not 3 years old or over yet. If thesentence is promulgated, the court will imposea penalty one degree lower. &his time it isxed. It is to be imposed one degree lower and in the proper periods sub"ect to the rulesin #rticle 0=.


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privilege, #rticle 0B would apply. 4o also, paragraph 7,in cases where the o ender is below 3 years old, suchan o ender if criminally liable is entitled to thelowering of penalty by one degree. 9ut if over nine but under 3A, he is entitled to a discretionary penalty of at least two degrees lower. (hen there is a lowering of

penalties by degrees, it is a privilege. It cannot beo set by an aggravating circumstance.

#lthough the bul) of the circumstances in #rticle 31are ordinary mitigating circumstances, yet, when the

crime committed is punishable by a divisible penalty,two or more of this ordinary mitigating circumstancesshall have the e ect of a privilege mitigatingcircumstances if there is no aggravating circumstanceat all.

Correlate #rticle 31 with #rticles 01 and 0=. #rticle 31is meaningless without )nowing the rules of imposingthe penalties under #rticles 01 and 0=.

In bar problems, when you are given indeterminatesentences, these articles are very important.

(hen the circumstance which mitigates criminalliability is privileged, you give e ect to it above allconsiderations. In other words, before you go into any circumstance, lower rst the penalty to the proper degree. &hat is precisely why this circumstance isconsidered privileged. It ta)es preference over allother circumstances.

uestion ! Answer

- 1B ear old bo committed parricide. /ill hebe given the bene t of $ndeterminate entence (aw*

!hen' the facts state' penalt for parricide is reclusionperpetua to death.

Qou have learned that the Indeterminate4entence aw does not apply, among other situations,when the penalty imposed is death or lifeimprisonment. 9ut then in the problem given, theo ender is a 3G'year old boy. &hat circumstance is

privileged. 4o before you go in the Indeterminate4entence aw, you have to apply that circumstancerst. 9eing a 3G'year old boy, therefore, the penalty would go one degree lower and the penalty for

parricide which now stands at reclusion perpetua willgo down to reclusion temporal. /eclusion temporal isalready governed by the Indeterminate 4entence aw.

&he answer, therefore, is yes. !e shall begiven the bene t of the Indeterminate 4entence aw.

#lthough the penalty prescribed for the crimecommitted is reclusion perpetua, that is not theimposable penalty, since being 3G years old is a

privilege mitigating circumstance. &hat privilegelowers the penalty by one degree. &he imposable

penalty, therefore, is reclusion temporal. &heIndeterminate 4entence aw applies to this and so theo ender will be given its bene t.

Criminal laws are to be construed always in amanner liberal or lenient to the o ender. 9etweengiving the o ender the bene t of the Indeterminate4entence aw and withholding it away from him, thereis more reason to give him its bene t. It is wrong for

you to determine whether the Indeterminate 4entenceaw will apply or not on the basis of reclusion perpetuabecause that is not the imposable penalty. &hemoment you do that, you disregard the privilegedcharacter of minority. Qou are only treating it as anordinary mitigating circumstance. rivilege mitigatingcircumstance will apply over and above all other considerations. (hen you arrive at the correct

penalty, that is the time when you nd out whether theIndeterminate 4entence aw will apply or not.

*or purposes of lowering the penalty by one or twodegrees, the age of the o ender at the time of thecommission of the crime shall be the basis, not the ageof the o ender at the time the sentence is to beimposed. 9ut for purposes of suspension of thesentence, the age of the o ender at the time the crimewas committed is not considered, it is the age of theo ender at the time the sentence is to be

promulgated.

"raeter intentionem

&he common circumstance given in the bar of praeter intentionem, under paragraph 1, means that theremust be a notable disproportion between the meansemployed by the o ender compared to that of theresulting felony. If the resulting felony could beexpected from the means employed, this circumstancedoes not avail. &his circumstance does not apply whenthe crime results from criminal negligence or culpa.(hen the crime is the product of rec)less imprudenceor simple negligence, mitigating circumstances doesnot apply. &his is one of the three instances where theo ender has performed a felony di erent from that which he intended. &herefore, this is the product of

intentional felony, not a culpable one.

uNcient threat or provocation

&his is mitigating only if the crime was committed onthe very person who made the threat or provocation.&he common set'up given in a bar problem is that of

provocation was given by somebody. &he person provo)ed cannot retaliate against him; thus, the person provo)ed retaliated on a younger brother or onan elder father. #lthough in fact, there is su$cient

provocation, it is not mitigating because the one whogives the provocation is not the one against whom thecrime was committed.

uestion ! Answer

- was walking in front of the house of . atthat time was with his brother +. + told thatsometime in the past' - boxed him' and because hewas small' he did not ght back. approached - andboxed him' but - cannot hit back at because isbigger' so - boxed +. +an - invoke suNcientprovocation to mitigate criminal liabilit *

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!owever, in one case, one of the mitigatingcircumstances under paragraphs =, A and 0 stands or arises from a set of facts, and another mitigatingcircumstance arises from another set of facts. 4incethey are predicated on di erent set of facts, they may be appreciated together, although they arose from oneand the same case. !ence, the prohibition against considering all these mitigating circumstancestogether and not as one applies only if they would beta)en on the basis of the same set of facts.

If the case involves a series of facts, then you can predicate any one of these circumstances on one fact and the other on another fact and so on.

&he passion must be legitimate. #s a rule, it cannot bebased on common law relationship because commonlaw relationships are illicit. !owever, consider whether

passion or obfuscation is generated by common lawrelationship or by some other human consideration.

In a case where the relationship between the accusedand the woman he was living with was one of commonlaw, he came home and surprised his common law wifehaving sexual intercourse with a friend. &his infuriatedhim. !e )illed the friend and he claimed passion or obfuscation. &he trial court denied his claim becausethe relationship was a common law one.

-n review, the accused was given the bene t of thecircumstances and the basis of considering passion or obfuscation in favor of the accused was the act of thecommon law wife in committing adultery right from thecon"ugal bed. (hether or not they are married, any man who discovers that in delity was committed onthe very bed provided by him to the woman wouldnaturally be sub"ected to obfuscation.

(hen a married person surprised his better half in the

act of sexual intercourse with another, he gets thebene t of #rticle 7=G. !owever, that re


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thereby saves the government the e ort, the time andthe expenses to be incurred in loo)ing for him.

(here the o ender went to the municipal building not to own responsibility for the )illing, such fact is not tantamount to voluntary surrender as a mitigatingcircumstance. #lthough he admitted his participationin the )illing, he tried to avoid responsibility by claiming self'defense which however he was not ableto prove. #eople v. Mindac, decided 5ecember 1 ,1992.

4urrender to be considered voluntary and thusmitigating, must be spontaneous, demonstrating anintent to submit himself unconditionally to the personin authority or his agent in authority, because 536 heac)nowledges his guilt 576 he wishes to save thegovernment the trouble and expenses of searchingand capturing him. (here the reason for thesurrender of the accused was to insure his safety, hisarrest by policemen pursuing him being inevitable, thesurrender is not spontaneous.

"h sical defect

&he physical defect that a person may have must havea relation to the commission of the crime. In a casewhere the o ender is deaf and dumb, personal

property was entrusted to him and he misappropriatedthe same. &he crime committed was estafa. &he fact that he was deaf and dumb is not mitigating becausethat does not bear any relation to the crimecommitted.

%ot any physical defect will a ect the crime. It willonly do so if it has some relation to the crimecommitted. If a person is deaf and dumb and he hasbeen slandered, he cannot tal) so what he did was, hegot a piece of wood and struc) the fellow on the head.&he crime committed was physical in"uries. &he

4upreme Court held that being a deaf and dumb ismitigating because the only way is to use his forcebecause he cannot stri)e bac).

If the o ender is blind in one eye, as long as his meansof action, defense or communication with others arenot restricted, such circumstance is not mitigating.&his circumstance must also have a bearing on thecrime committed and must depend on how the crimewas committed.

-nalogous cases

&he act of the o ender of leading the law enforcers tothe place where he buried the instrument of the crimehas been considered as e


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aggravating. (hat is present is betrayal of trust andthat is not aggravating.

In a case where the o ender is a servant, the o ended party is one of the members of the family. &he servant poisoned the child. It was held that abuse of con dence is aggravating. &his is only true however, if the servant was still in the service of the family whenhe did the )illing. If he was driven by the master already out of the house for some time and he camebac) and poisoned the child, abuse of con dence is nolonger aggravating. &he reason is because that con dence has already been terminated when theo ender was driven out of the house.


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If the o ender entered the house and the o ended party "umped out of the house, even if the o ender caught up with him already out of the house, dwellingis still aggravating. &he reason is because he could not have left his dwelling were it not for the fact that theattac)er entered the house.

If the o ended party was inside the house and theo ender was outside and the latter shot the former inside the house while he was still outside. @welling isstill aggravating even if the o ender did not enter thehouse.

# garage is part of the dwelling when connected withan interior passage to the house proper. If not connected, it is not considered part of the dwelling.

-ne'half of the house is used as a store and the other half is used for dwelling but there is only one entrance.If the dwelling portion is attac)ed, dwelling is not aggravating because whenever a store is open for business, it is a public place and as such is not capable

of being the sub"ect of trespass. If the dwelling portionis attac)ed where even if the store is open, there isanother separate entrance to the portion used for dwelling, the circumstance is aggravating. !owever, incase the store is closed, dwelling is aggravating sincehere, the store is not a public place as in the rst case.

9alcony is part of the dwelling because it isappurtenant to the house

@welling is aggravating in robbery with homicidebecause the crime can be committed without necessarily transgressing the sanctity of the home

5 #eople v. 5e os e'es, decided October 22,1992 6.

@welling is aggravating where the place is, even for abrief moment, a DhomeE, although he is not the owner thereof as when victim was shot in the house of his

parents.

and

In band, there should at least be four persons. #ll of them should be armed. ven if there are four, but only three or less are armed, it is not a band. (henever youtal) of band, always have in mind four at least. @o not

say three or more because it is four or more. &he way the law de nes a band is somewhat confusing becauseit refers simply to more than 1, when actually it shouldbe = or more.

Correlate this with #rticle 1J0 ' 9rigandage. &he crimeis the band itself. &he mere forming of a band evenwithout the commission of a crime is already a crimeso that band is not aggravating in brigandage becausethe band itself is the way to commit brigandage.

!owever, where brigandage is actually committed,band becomes aggravating.

Lninhabited place

It is determined not by the distance of the nearest house to the scene of the crime but whether or not inthe place of the commission of the o ense , there wasa reasonable possibility of the victim receiving somehelp.

Illustration:

# is on board a banca, not so far away. 9 and C alsoare on board on their respective bancas. 4uddenly, @showed up from underwater and stabbed 9. Is there anaggravating circumstance of uninhabited place herePQes, considering the fact that # and C before beingable to give assistance still have to "ump into the water and swim towards 9 and the time it would ta)e them todo that, the chances of 9 receiving some help was very little, despite the fact that there were other personsnot so far from the scene.

vidence tending to prove that the o ender too) advantage of the place and purposely availed of it is toma)e it easier to commit the crime, shall be necessary.

8ighttime

(hat if the crime started during the daytime andcontinued all the way to nighttimeP &his is not aggravating.

#s a rule, the crime must begin and end during thenighttime. Crime began at day and ended at night, aswell as crime began at night and ended at day is not aggravated by the circumstance of nighttime.

@ar)ness is what ma)es this circumstanceaggravating.

Illustration:

-ne evening, a crime was committed near the lamp post. &he 4upreme Court held that there is noaggravating circumstance of nighttime. ven if thecrime was committed at night, but there was light,hence, dar)ness was not present, no aggravatingcircumstance "ust by the fact of nighttime alone.

ven if there was dar)ness but the nighttime was only an incident of a chance meeting, there is noaggravating circumstance here. It must be shown that the o ender deliberately sought the cover of dar)nessand the o ender purposely too) advantage of nighttime to facilitate the commission of the o ense.

%octurnity is the period of time after sunset to sunrise,from dus) to dawn.

-i)erent forms of repetition or ha*itualit( of theo)en#er

536 /ecidivism under #rticle 3= 5B6 8 &he o ender at the time of his trial for one crime shall havebeen previously convicted by nal "udgment of another embraced in the same title of the/evised enal Code.

42


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576 /epetition or reiteracion under #rticle 3= 53J6 8&he o ender has been previously punished for an o ense which the law attaches an e


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the court shall consider such aggravating circumstancebecause it is only generic.

In recidivism, although the law de nes it as acircumstance where a person having been convictedby nal "udgement was previously convicted also by nal "udgement for a crime embraced in the same titlein the /evised enal Code, it is necessary that theconviction must come in the order in which they arecommitted.

uestion ! Answer

$n 1>B:' the o#ender committed robber . /hilethe same was being tried in 1>BE' he committed theft.$n 1>E=' he was convicted of theft and he did notappeal this decision. !he trial for robber ended in1>E1. Ma the &udge in imposing the penalt forrobber consider the accused a recidivist consideringthat he was alread convicted in 1>E= for the crime of theft which is under the same title of the )evised "enal+ode as that of robber *

%o, because the robbery which was committedearlier would be decided later. It must be the other way around. &his is because in 3BGA when he committedthe robbery, there was no crime committed yet. &hus,even though in imposing the penalty for the robbery,there was already a previous conviction, if that conviction is subse


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)eiteracion

&his has nothing to do with the classi cation of thefelonies. In reiteracion, the o ender has already tastedthe bitterness of the punishment. &his is the

philosophy on which the circumstance becomesaggravating.

It is necessary in order that there be reiteracion that the o ender has already served out the penalty. If theo ender had not yet served out his penalty, forget about reiteracion. &hat means he has not yet tastedthe bitterness of life but if he had already served out the penalty, the law expects that since he has already tasted punishment, he will more or less refrain fromcommitting crimes again. &hat is why if the o ender committed a subse


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would execute the crime is a principal by direct participation. !ence, their responsibilities are thesame. &hey are both principals and that is why therecent rulings of the 4upreme Court are to the e ect that this aggravating circumstance a ects or aggravates not only the criminal liability of the receiver of the price, reward or promise but also the criminalliability of the one giving the o er.

means of inundation or re

*ire is not aggravating in the crime of arson.

(henever a )illing is done with the use of re, as whento )ill someone, you burn down his house while thelatter is inside, this is murder.

&here is no such crime as murder with arson or arsonwith homicide. &he crime committed is only murder.

If the victim is already dead and the house is burned,the crime is arson. It is either arson or murder.

If the intent is to destroy property, the crime is arsoneven if someone dies as a conse


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9 with all suddenness. vident premeditation was not absorbed in treachery because treachery refers to themanner of committing the crime. vident

premeditation is always absorbed in treachery.

&his is one aggravating circumstance where theo ender who premeditated, the law says evident. It isnot enough that there is some premeditation.remeditation must be clear. It is re


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transportation or motori+ed watercraft. &here is adecision by the Court of #ppeals that a motori+edbicycle is a motor vehicle even if the o ender usedonly the foot pedal because he does not )now how tooperate the motor so if a bicycle is used in thecommission of the crime, motor vehicle becomesaggravating if the bicycle is motori+ed.

&his circumstance is aggravating only when used inthe commission of the o ense. If motor vehicle is usedonly in the escape of the o ender, motor vehicle is not

aggravating. &o be aggravating, it must have beenused to facilitate the commission of the crime.

#ggravating when a motori+ed tricycle was used tocommit the crime

rgani%ed or s ndicated crime group

In the same amendment to #rticle 07 of the /evisedenal Code, paragraphs were added which provide that the maximum penalty shall be imposed if the o ensewas committed by any person who belongs to anorgani+ed or syndicated crime group.

#n organi+ed or syndicated crime group means agroup of two or more persons collaborating,confederating or mutually helping one another for

purposes of gain in the commission of a crime.

(ith this provision, the circumstance of an organi+edor syndicated crime group having committed the crimehas been added in the Code as a special aggravatingcircumstance. &he circumstance being special or


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&his circumstance is ipso facto mitigating, so that if the prosecution wants to deny the o ender the bene t of this mitigation, they should prove that it is habitualand that it is intentional. &he moment it is shown to behabitual or intentional to the commission of the crime,the same will immediately aggravate, regardless of thecrime committed.

Intoxication to be considered mitigating, re


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liability if the act of the participant does not demonstrate a clear perversity.

#s to the liability of the participants in a felony, theCode ta)es into consideration whether the felony committed is grave, less grave, or light.

(hen the felony is grave, or less grave, all participantsare criminally liable.

9ut where the felony is only light only the principal and

the accomplice are liable. &he accessory is not.

9ut even the principal and the accomplice will not beliable if the felony committed is only light and thesame is not consummated unless such felony isagainst persons or property. If they are not and thesame is not consummated, even the principal and theaccomplice are not liable.

&herefore it is only when the light felony is against person or property that criminal liability attaches tothe principal or accomplice, even though the felony isonly attempted or frustrated, but accessories are not liable for liable for light felonies.

$rincipal *( in#ispensa*le cooperation#istinguishe# from an accomplice

It is not "ust a matter of cooperation, it is more than if the crime could hardly be committed. It is not that thecrime would not be committed because if that is what

you would imply it becomes an ingredient of the crimeand that is not what the law contemplates.

In the case of rape, where three men were accused,one was on top of the woman, one held the hands, oneheld the legs, the 4upreme Court ruled that all

participants are principals. &hose who held the legsand arms are principals by indispensable cooperation.

&he accused are father and son. &he father told hisson that the only way to convince the victim to marry him is to resort to rape. 4o when they saw theopportunity the young man grabbed the woman, threwher on the ground and placed himself on top of her while the father held both legs of the woman andspread them. &he 4upreme Court ruled that the father is liable only as an accomplice.

&he point is not "ust on participation but on theimportance of participation in committing the crime.

In the rst situation, the facts indicate that if the fellowwho held the legs of the victim and spread them didnot do so, the o ender on top could hardly penetratebecause the woman was strong enough to move or resist. In the second situation, the son was muchbigger than the woman so considering the strength of the son and the victim, penetration is possible evenwithout the assistance of the father. &he son was arobust farm boy and the victim undernourished. &heact of the father in holding the legs of the victimmerely facilitated the penetration but even without it the son would have penetrated.

&he basis is the importance of the cooperation to theconsummation of the crime. If the crime could hardly be committed without such cooperation, then such

cooperation would bring about a principal. 9ut if thecooperation merely facilitated or hastened theconsummation of the crime, this would ma)e thecooperator merely an accomplice.

In a case where the o ender was running after thevictim with a )nife. #nother fellow came and bloc)edthe way of the victim and because of this, the onechasing the victim caught up and stabbed the latter at the bac). It was held that the fellow who bloc)ed thevictim is a principal by indispensable cooperation

because if he did not bloc) the way of the victim, theo ender could not have caught up with the latter.

In another case, # was mauling 9. C, a friend of 9 triedto approach but @ stopped C so that # was able tocontinuously maul 9. &he liability of the fellow whostopped the friend from approaching is as anaccomplice. 2nderstandably he did not cooperate inthe mauling, he only stopped to other fellow fromstopping the mauling.

In case of doubt, favor the lesser penalty or liability. #pply the doctrine of pro reo.

$rincipal *( in#ucement

Concept of the inducement 8 one strong enough that the person induced could hardly resist. &his istantamount to an irresistible force compelling the

person induced to carry out the execution of the crime.Ill advised language is not enough unless he who madesuch remar) or advice is a co'conspirator in the crimecommitted.(hile in the course of a


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In #eople v. A apina', 18" $C A 812, the one whouttered DMill him, we will bury him,E while the feloniousaggression was ta)ing place cannot be held liable as

principal by inducement. 2tterance was said in theexcitement of the hour, not a command to be obeyed.

In #eople v. Madali, 188 $C A "9, the son wasmauled. &he family was not in good graces of theneighborhood. *ather challenged everybody and whenneighbors approached, he went home to get a ri e.&he shouts of his wife D!ere comes another, shoot

himE cannot ma)e the wife the principal by inducement. It is not the determining cause of thecrime in the absence of proof that the words had great dominance and in uence over the husband. %either isthe wife’s act of beaming the victim with a ashlight indispensable to the commission of the )illing. 4heassisted her husband in ta)ing good aim, but suchassistance merely facilitated the felonious act of shooting. Considering that it was not so dar) and thehusband could have accomplished the deed without his wife’s help, and considering further that doubtsmust be resolved in favor of the accused, the liability of the wife is only that of an accomplice.

Accessories

&wo situations where accessories are not criminally liableH

536 (hen the felony committed is a light felony;

576 (hen the accessory is related to the principalas spouse, or as an ascendant, or descendant or as brother or sister whether legitimate,natural or adopted or where the accessory is arelative by a$nity within the same degree,unless the accessory himself pro ted from thee ects or proceeds of the crime or assisted theo ender to pro t therefrom.

-ne cannot be an accessory unless he )new of thecommission of the crime. -ne must not have

participated in the commission of the crime. &heaccessory comes into the picture when the crime isalready consummated. #nyone who participatedbefore the consummation of the crime is either a

principal or an accomplice. !e cannot be anaccessory.

(hen an o ender has already involved himself as a principal or accomplice, he cannot be an accessory any further even though he performs acts pertaining to anaccessory.

-ccessor as a fence

&he /evised enal Code de nes what manners of participation shall render an o ender liable as anaccessory. #mong the enumeration is Dby pro tingthemselves or by assisting the o ender to pro t by thee ects of the crimeE. 4o the accessory shall be liablefor the same felony committed by the principal.!owever, where the crime committed by the principalwas robbery or theft, such participation of anaccessory brings about criminal liability under residential @ecree %o. 3037 5#nti'*encing aw6. -ne

who )nowingly pro ts or assists the principal to pro t by the e ects of robbery or theft is not "ust anaccessory to the crime, but principally liable for fencing under residential @ecree %o. 3037.

#ny person who, with intent to gain, acere possession of any article of value which has been thesub"ect of robbery or theft brings about the

presumption of DfencingE.

residential @ecree %o. 3037 has, therefore, modi ed #rticle 3B of the /evised enal Code.

uestions ! Answers

1. Ma one who pro ted out of theproceeds of estafa or malversation be prosecutedunder the -nti?;encing (aw*

%o. &here is only a fence when the crime istheft or robbery. If the crime is embe++lement or estafa, still an accessory to the crime of estafa, not afence.

2. $f principal committed robber bsnatching a wristwatch and gave it to his wife to sell' isthe wife criminall liable* +an she be prosecuted as anaccessor and as a fence*

&he liability of the wife is based on her assisting the principal to pro t and that act is

punishable as fencing. 4he will no longer be liable asan accessory to the crime of robbery.

In both laws, residential @ecree %o. 3037 and the/evised enal Code, the same act is the basis of liability and you cannot punish a person twice for thesame act as that would go against double "eopardy.

-c,uiring the e#ects of pirac or brigandage

It is relevant to consider in connection with thecriminal liability of accessories under the /evised enalCode, the liability of persons ac


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(hen will this credit applyP If the penalty imposedconsists of a deprivation of liberty. %ot all who haveundergone preventive imprisonment shall be given acredit

2nder #rticle 7=, preventive imprisonment of anaccused who is not yet convicted, but by express

provision of #rticle7= is not a penalty. Qet #rticle 7B, if ultimately the accused is convicted and the penalty imposed involves deprivation of liberty, provides that

the period during which he had undergone preventivedetention will be deducted from the sentence, unlesshe is one of those dis


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penalty. It is a punishment whereby a convict isvanished to a certan place and is prohibited formentering or coming near that place designated in thesentence, not less than 7A Mms.. !owever, the court cannot extend beyond 7AJ Mms. If the convict shouldenter the prohibited places, he commits the crime of evasion of service of sentence under #rticle 3AG. 9ut if the convict himself would go further from which he isvanished by the court, there is no evasion of sentencebecause the 7=J'Mm. limit is upon the authority of thecourt in vanishing the convict.

2nder the /evised enal Code, destierro is the penalty imposed in the following situationsH

536 (hen a legally married person who hadsurprised his or her spouse in the act of sexualintercourse with another and while in that act or immediately thereafter should )ill or in ict serious physical in"uries upon the other spouse, andLor the paramour or mistress. &hisis found in #rticle 7=G.

576 In the crime of grave threat or l ight threat,when the o ender is rearital authority;

516 &he right to manage his property; and

5=6 &he right to dispose of such property by any act or any conveyance inter vivos.

Can a convict execute a last will and testamentP Qes.

$rimar( classi9cation of penalties

"rincipal penalties and accessor penalties

&he penalties which are both principal and accessory penalties are the followingH

536 erpetual or temporary absolutedis


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5=6 #rticle =1. rision correccional ' suspensionfrom public o$ce, from the right to follow a

profession or calling, and perpetual specialdis


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#s we )now, when a penalty has a xed duration, it issaid to be divisible and, in accordance with the

provisions of #rticles 0A and G0, should be divided intothree eedium ' 70 years, eight months and one day, to 11 years and four months;

>aximum ' 1= years, four months and one day, to =J years.

Considering the aggravating circumstance of relationship, the Court sentenced the accused toimprisonment of 1= years, four months and one day of reclusion perpetua, instead of the straight penalty of reclusion perpetua imposed by the trial court. &heappellee seasonably led a motion for clari cation tocorrect the duration of the sentence, because insteadof beginning with 11 years, four months and one day, it was stated as 1= years, four months and one day. &heissue of whether the amendment of #rticle 7G madereclusion perpetua a divisible penalty was raised, and

because the issue is one of rst impression andmomentous importance, the *irst @ivision referred themotion to the Court en banc.

In a resolution promulgated on ?anuary B, 3BBA, the4upreme Court en banc held that reclusion perpetuashall remain as an indivisible penalty. &o this end, theresolution statesH

#fter deliberating on the motion andre'examining the legislation history of /# G0AB, the Court concludes that although 4ection 3G of /# G0AB hasxed the duration of /eclusionerpetua from twenty years 57J6 andone 536 to forty =J years, there was noclear legislative intent to alter itsoriginal classi cation as an indivisible

penalty. It shall then remain as anindivisible pe

ortega notes on criminal law 1

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