CRIMINAL LAW consul or any consul in a foreign country,

who are therefore, not immune to the

Criminal law is that branch of municipal law operation or application of the penal law of
which defines crimes, treats of their nature the country where they are assigned.
and provides for their punishment. Consuls are subject to the penal laws of the
country where they are assigned.
It is that branch of public substantive law
which defines offenses and prescribes their It has no reference to territory. Whenever
penalties. It is substantive because it you are asked to explain this, it does not
defines the state’s right to inflict include territory. It refers to persons that
punishment and the liability of the may be governed by the penal law.
offenders. It is public law because it deals
with the relation of the individual with the
state. TERRITORIALITY

Territoriality means that the penal laws of

Limitations on the power of Congress the country have force and effect only
to enact penal laws within its territory. It cannot penalize
crimes committed outside the same. This is
1. Must be general in application. subject to certain exceptions brought about
by international agreements and practice.
2. Must not partake of the nature of an ex The territory of the country is not limited to
post facto law. the land where its sovereignty resides but
includes also its maritime and interior
3. Must not partake of the nature of a bill of waters as well as its atmosphere.
attainder.
Terrestrial jurisdiction is the jurisdiction
4. Must not impose cruel and unusual exercised over land.
punishment or excessive fines.
Fluvial jurisdiction is the jurisdiction
exercised over maritime and interior waters.
Characteristics of Criminal Law
Aerial jurisdiction is the jurisdiction
1. Generality exercised over the atmosphere.

2. Territoriality
The Archipelagic Rule
3. Prospectivity.
All bodies of water comprising the maritime
zone and interior waters abounding different
Generality islands comprising the Philippine
Archipelago are part of the Philippine
Generality of criminal law means that the territory regardless of their breadth, depth,
criminal law of the country governs all width or dimension.
persons within the country regardless of
their race, belief, sex, or creed. However, it On the fluvial jurisdiction there is presently
is subject to certain exceptions brought a departure from the accepted International
about by international agreement. Law Rule, because the Philippines adopted
Ambassadors, chiefs of states and other the Archipelagic Rule. In the International
diplomatic officials are immune from the Law Rule, when a strait within a country has
application of penal laws when they are in a width of more than 6 miles, the center
the country where they are assigned. lane in excess of the 3 miles on both sides is
considered international waters.
Note that consuls are not diplomatic
officers. This includes consul-general, vice- Question & Answer
If a foreign merchant vessel is in the center (3) Absolute Theory – The subjacent
lane and a crime was committed there, state has complete jurisdiction over the
under the International Law Rule, what law atmosphere above it subject only to
will apply? innocent passage by aircraft of foreign
country.
The law of the country where that vessel is
registered will apply, because the crime is Under this theory, if the crime is committed
deemed to have been committed in the high in an aircraft, no matter how high, as long
seas. as it can establish that it is within the
Philippine atmosphere, Philippine criminal
law will govern. This is the theory adopted
Under the Archipelagic Rule as declared in by the Philippines.
Article 1, of the Constitution, all waters in PROSPECTIVITY
the archipelago regardless of breadth width,
or dimension are part of our national This is also called irretrospectivity.
territory. Under this Rule, there is no more
center lane, all these waters, regardless of Acts or omissions will only be subject to a
their dimension or width are part of penal law if they are committed after a
Philippine territory. penal law had already taken effect. Vice-
versa, this act or omission which has been
So if a foreign merchant vessel is in the committed before the effectivity of a penal
center lane and a crime was committed, the law could not be penalized by such penal
crime will be prosecuted before Philippine law because penal laws operate only
courts. prospectively.

In some textbooks, an exemption is said to

Three international law theories on exist when the penal law is favorable to the
aerial jurisdiction offender, in which case it would have
retroactive application; provided that the
(1) The atmosphere over the country is offender is not a habitual delinquent and
free and not subject to the jurisdiction of the there is no provision in the law against its
subjacent state, except for the protection of retroactive application.
its national security and public order.
The exception where a penal law may be
Under this theory, if a crime is committed given retroactive application is true only
on board a foreign aircraft at the with a repealing law. If it is an original
atmosphere of a country, the law of that penal law, that exception can never
country does not govern unless the crime operate. What is contemplated by the
affects the national security. exception is that there is an original law and
there is a repealing law repealing the
(2) Relative Theory – The subjacent original law. It is the repealing law that may
state exercises jurisdiction over its be given retroactive application to those
atmosphere only to the extent that it can who violated the original law, if the
effectively exercise control thereof. The repealing penal law is more favorable to the
Relative Theory offender who violated the original law. If
there is only one penal law, it can never be
Under this theory, if a crime was committed given retroactive effect.
on an aircraft which is already beyond the
control of the subjacent state, the criminal
law of that state will not govern anymore. Rule of prospectivity also applies to
But if the crime is committed in an aircraft administrative rulings and circulars
within the atmosphere over a subjacent
state which exercises control, then its In Co v. CA, decided on October 28, 1993, it
criminal law will govern. was held that the principle of prospectivity
of statutes also applies to administrative to be a crime inspite of the repeal. This
rulings and circulars. In this case, Circular means that the repeal merely modified the
No. 4 of the Ministry of Justice, dated conditions affecting the crime under the
December 15, 1981, provides that “where repealed law. The modification may be
the check is issued as part of an prejudicial or beneficial to the offender.
arrangement to guarantee or secure the Hence, the following rule:
payment of an obligation, whether pre-
existing or not, the drawer is not criminally
liable for either estafa or violation of BP22.” Consequences if repeal of penal law is
Subsequently, the administrative total or absolute
interpretation of was reversed in Circular
No. 12, issued on August 8, 1984, such that (1) If a case is pending in court involving
the claim that the check was issued as a the violation of the repealed law, the same
guarantee or part of an arrangement to shall be dismissed, even though the
secure an obligation or to facilitate accused may be a habitual delinquent. This
collection, is no longer a valid defense for is so because all persons accused of a crime
the prosecution of BP22. Hence, it was are presumed innocent until they are
ruled in Que v. People that a check issued convicted by final judgment. Therefore, the
merely to guarantee the performance of an accused shall be acquitted.
obligation is, nevertheless, covered by BP
22. But consistent with the principle of (2) If a case is already decided and the
prospectivity, the new doctrine should not accused is already serving sentence by final
apply to parties who had relied on the old judgment, if the convict is not a habitual
doctrine and acted on the faith thereof. No delinquent, then he will be entitled to a
retrospective effect. release unless there is a reservation clause
in the penal law that it will not apply to
those serving sentence at the time of the
Effect of repeal of penal law to liability repeal. But if there is no reservation, those
of offender who are not habitual delinquents even if
they are already serving their sentence will
In some commentaries, there are references receive the benefit of the repealing law.
as to whether the repeal is express or They are entitled to release.
implied. What affects the criminal liability of
an offender is not whether a penal law is This does not mean that if they are not
expressly or impliedly repealed; it is released, they are free to escape. If they
whether it is absolutely or totally repealed, escape, they commit the crime of evasion of
or relatively or partially repealed. sentence, even if there is no more legal
basis to hold them in the penitentiary. This
Total or absolute, or partial or relative is so because prisoners are accountabilities
repeal. -- As to the effect of repeal of penal of the government; they are not supposed
law to the liability of offender, qualify your to step out simply because their sentence
answer by saying whether the repeal is has already been, or that the law under
absolute or total or whether the repeal is which they are sentenced has been
partial or relative only. declared null and void.

A repeal is absolute or total when the crime If they are not discharged from
punished under the repealed law has been confinement, a petition for habeas corpus
decriminalized by the repeal. Because of should be filed to test the legality of their
the repeal, the act or omission which used continued confinement in jail.
to be a crime is no longer a crime. An
example is Republic Act No. 7363, which If the convict, on the other hand, is a
decriminalized subversion. habitual delinquent, he will continue serving
the sentence in spite of the fact that the law
A repeal is partial or relative when the crime under which he was convicted has already
punished under the repealed law continues been absolutely repealed. This is so
because penal laws should be given clause that provides that it should not be
retroactive application to favor only those given retroactive effect.
who are not habitual delinquents.
Under Article 22, even if the offender is
already convicted and serving sentence, a
law which is beneficial shall be applied to
Question & Answer him unless he is a habitual delinquent in
accordance with Rule 5 of Article 62.
A, a prisoner, learns that he is already
overstaying in jail because his jail guard, B,
who happens to be a law student advised Express or implied repeal. – Express or
him that there is no more legal ground for implied repeal refers to the manner the
his continued imprisonment, and B told him repeal is done.
that he can go. A got out of jail and went
home. Was there any crime committed? Express repeal takes place when a
subsequent law contains a provision that
As far as A, the prisoner who is serving such law repeals an earlier enactment. For
sentence, is concerned, the crime example, in Republic Act No. 6425 (The
committed is evasion of sentence. Dangerous Drugs Act of 1972), there is an
express provision of repeal of Title V of the
As far as B, the jail guard who allowed A to Revised Penal Code.
go, is concerned, the crime committed is
infidelity in the custody of prisoners. Implied repeals are not favored. It requires
a competent court to declare an implied
repeal. An implied repeal will take place
Consequences if repeal of penal law is when there is a law on a particular subject
partial or relative matter and a subsequent law is passed also
on the same subject matter but is
(1) If a case is pending in court involving inconsistent with the first law, such that the
the violation of the repealed law, and the two laws cannot stand together, one of the
repealing law is more favorable to the two laws must give way. It is the earlier
accused, it shall be the one applied to him. that will give way to the later law because
So whether he is a habitual delinquent or the later law expresses the recent
not, if the case is still pending in court, the legislative sentiment. So you can have an
repealing law will be the one to apply unless implied repeal when there are two
there is a saving clause in the repealing law inconsistent laws. When the earlier law
that it shall not apply to pending causes of does not expressly provide that it is
action. repealing an earlier law, what has taken
place here is implied repeal. If the two laws
(2) If a case is already decided and the can be reconciled, the court shall always try
accused is already serving sentence by final to avoid an implied repeal. For example,
judgment, even if the repealing law is under Article 9, light felonies are those
partial or relative, the crime still remains to infractions of the law for the commission of
be a crime. Those who are not habitual which a penalty of arresto mayor or a fine
delinquents will benefit on the effect of that not exceeding P200.00 or both is provided.
repeal, so that if the repeal is more lenient On the other hand, under Article 26, a fine
to them, it will be the repealing law that will whether imposed as a single or an
henceforth apply to them. alternative penalty, if it exceeds P6,000.00
but is not less than P 200.00, is considered
For example, under the original law, the a correctional penalty. These two articles
penalty is six years. Under the repealing appear to be inconsistent. So to harmonize
law, it is four years. Those convicted under them, the Supreme Court ruled that if the
the original law will be subjected to the four- issue involves the prescription of the crime,
year penalty. This retroactive application that felony will be considered a light felony
will not be possible if there is a saving and, therefore, prescribes within two
months. But if the issue involves presumption of innocence of the accused.
prescription of the penalty, the fine of This is peculiar only to criminal law.
P200.00 will be considered correctional and
it will prescribe within 10 years. Clearly, the
court avoided the collision between the two Question & Answer
articles.
One boy was accused of parricide and was
found guilty. This is punished by reclusion
Consequences if repeal of penal law is perpetua to death. Assuming you were the
express or implied judge, would you give the accused the
benefit of the Indeterminate Sentence Law
(1) If a penal law is impliedly repealed, (ISLAW)? The ISLAW does not apply when
the subsequent repeal of the repealing law the penalty imposed is life imprisonment of
will revive the original law. So the act or death. Would you consider the penalty
omission which was punished as a crime imposable or the penalty imposed, taking
under the original law will be revived and into consideration the mitigating
the same shall again be crimes although circumstance of minority?
during the implied repeal they may not be
punishable. If you will answer "no", then you go against
the Doctrine of Pro Reo because you can
(2) If the repeal is express, the repeal of interpret the ISLAW in a more lenient
the repealing law will not revive the first manner. Taking into account the doctrine,
law, so the act or omission will no longer be we interpret the ISLAW to mean that the
penalized. penalty imposable and not the penalty
prescribed by law, since it is more favorable
These effects of repeal do not apply to self- for the accused to interpret the law.
repealing laws or those which have
automatic termination. An example is the
Rent Control Law which is revived by Nullum crimen, nulla poena sine lege
Congress every two years.
There is no crime when there is no law
When there is a repeal, the repealing law punishing the same. This is true to civil law
expresses the legislative intention to do countries, but not to common law countries.
away with such law, and, therefore, implies
a condonation of the punishment. Such Because of this maxim, there is no common
legislative intention does not exist in a self- law crime in the Philippines. No matter how
terminating law because there was no wrongful, evil or bad the act is, if there is no
repeal at all. law defining the act, the same is not
considered a crime.

BASIC MAXIMS IN CRIMINAL LAW Common law crimes are wrongful acts which
the community/society condemns as
Doctrine of Pro Reo contemptible, even though there is no law
declaring the act criminal.
Whenever a penal law is to be construed or
applied and the law admits of two Not any law punishing an act or omission
interpretations – one lenient to the offender may be valid as a criminal law. If the law
and one strict to the offender – that punishing an act is ambiguous, it is null and
interpretation which is lenient or favorable void.
to the offender will be adopted.

This is in consonance with the fundamental Actus non facit reum, nisi mens sit rea
rule that all doubts shall be construed in
favor of the accused and consistent with The act cannot be criminal where the mind
is not criminal. This is true to a felony
characterized by dolo, but not a felony
resulting from culpa. This maxim is not an
absolute one because it is not applied to Spanish Codigo Penal
culpable felonies, or those that result from
negligence. When the Spanish Colonizers came, the
Spanish Codigo Penal was made applicable
and extended to the Philippines by Royal
Utilitarian Theory or Protective Theory Decree of 1870. This was made effective in
the Philippines in July 14, 1876.
The primary purpose of the punishment Who is Rafael Del Pan?
under criminal law is the protection of
society from actual and potential He drafted a correctional code which was
wrongdoers. The courts, therefore, in after the Spanish Codigo Penal was
exacting retribution for the wronged society, extended to the Philippines. But that
should direct the punishment to potential or correctional code was never enacted into
actual wrongdoers, since criminal law is law. Instead, a committee was organized
directed against acts and omissions which headed by then Anacleto Diaz. This
the society does not approve. Consistent committee was the one who drafted the
with this theory, the mala prohibita principle present Revised Penal Code.
which punishes an offense regardless of
malice or criminal intent, should not be
utilized to apply the full harshness of the The present Revised Penal Code
special law.
When a committee to draft the Revised
In Magno v CA, decided on June 26, 1992, Penal Code was formed, one of the
the Supreme Court acquitted Magno of reference that they took hold of was the
violation of Batas Pambansa Blg. 22 when correctional code of Del Pan. In fact, many
he acted without malice. The wrongdoer is provisions of the Revised Penal Code were
not Magno but the lessor who deposited the no longer from the Spanish Penal Code; they
checks. He should have returned the checks were lifted from the correctional code of Del
to Magno when he pulled out the Pan. So it was him who formulated or
equipment. To convict the accused would paraphrased this provision making it simpler
defeat the noble objective of the law and and more understandable to Filipinos
the law would be tainted with materialism because at that time, there were only a
and opportunism. handful who understood Spanish.

DEVELOPMENT OF CRIMINAL LAW IN Code of Crimes by Guevarra

THE PHILIPPINES
During the time of President Manuel Roxas,
a code commission was tasked to draft a
Code of Kalantiao penal code that will be more in keeping with
the custom, traditions, traits as well as
If you will be asked about the development beliefs of the Filipinos. During that time, the
of criminal law in the Philippines, do not code committee drafted the so-called Code
start with the Revised Penal Code. Under of Crimes. This too, slept in Congress. It
the Code of Kalantiao, there were penal was never enacted into law. Among those
provisions. Under this code, if a man would who participated in drafting the Code of
have a relation with a married woman, she Crimes was Judge Guellermo Guevarra.
is penalized. Adultery is a crime during
those days. Even offending religious things, Since that Code of Crimes was never
such as gods, are penalized. The Code of enacted as law, he enacted his own code of
Kalantiao has certain penal provisions. The crimes. But it was the Code of Crimes that
Filipinos have their own set of penology that was presented in the Batasan as
also. Cabinet Bill no. 2. Because the code of
crimes prepared by Guevarra was more of a of this kind of this school of thought. Man is
moral code than a penal code, there were regarded as a moral creature who
several oppositions against the code. understands right from wrong. So that
when he commits a wrong, he must be
prepared to accept the punishment
Proposed Penal Code of the Philippines therefore.

Through Assemblyman Estelito

Mendoza, the UP Law Center formed a 2. Positivist or Realistic Philosophy
committee which drafted the Penal Code of
the Philippines. This Penal Code of the The purpose of penalty is reformation.
Philippines was substituted as Cabinet Bill There is great respect for the human
no. 2 and this has been discussed in the element because the offender is regarded
floor of the Batasang Pambansa. So the as socially sick who needs treatment, not
Code of Crimes now in Congress was not the punishment. Cages are like asylums, jails
Code of Crimes during the time of President like hospitals. They are there to segregate
Roxas. This is a different one. Cabinet Bill the offenders from the “good” members of
No. 2 is the Penal Code of the Philippines society.
drafted by a code committee chosen by the From this philosophy came the jury system,
UP Law Center, one of them was Professor where the penalty is imposed on a case to
Ortega. There were seven members of the case basis after examination of the offender
code committee. It would have been by a panel of social scientists which do not
enacted into law it not for the dissolution of include lawyers as the panel would not want
the Batasang Pambansa dissolved. The the law to influence their consideration.
Congress was planning to revive it so that it
can be enacted into law. Crimes are regarded as social phenomena
which constrain a person to do wrong
although not of his own volition. A tendency
Special Laws towards crime is the product of one’s
environment. There is no such thing as a
During Martial Law, there are many natural born killer.
Presidential Decrees issued aside from the
special laws passed by the Philippine This philosophy is criticized as being too
Legislature Commission. All these special lenient.
laws, which are penal in character, are part
of our Penal Code.
3. Eclectic or Mixed Philosophy

Different philosophies underlying the This combines both positivist and classical
criminal law system thinking. Crimes that are economic and
social and nature should be dealt with in a
1. Classical or Juristic Philosophy positivist manner; thus, the law is more
compassionate. Heinous crimes should be
Best remembered by the maxim “An dealt with in a classical manner; thus,
eye for an eye, a tooth for a tooth.” [Note: capital punishment.
If you want to impress the examiner, use
the latin version – Oculo pro oculo, dente Since the Revised Penal Code was adopted
pro dente.] from the Spanish Codigo Penal, which in
turn was copied from the French Code of
The purpose of penalty is retribution. 1810 which is classical in character, it is
The offender is made to suffer for the wrong said that our Code is also classical. This is
he has done. There is scant regard for the no longer true because with the American
human element of the crime. The law does occupation of the Philippines, many
not look into why the offender committed provisions of common law have been
the crime. Capital punishment is a product engrafted into our penal laws. The Revised
Penal Code today follows the mixed or
eclectic philosophy. For example, 1. As to moral trait of the offender
intoxication of the offender is considered to
mitigate his criminal liability, unless it is In crimes punished under the
intentional or habitual; the age of the Revised Penal Code, the moral trait of the
offender is considered; and the woman who offender is considered. This is why liability
killed her child to conceal her dishonor has would only arise when there is dolo or culpa
in her favor a mitigating circumstance. in the commission of the punishable act.

In crimes punished under special laws, the

MALA IN SE AND MALA PROHIBITA moral trait of the offender is not considered;
it is enough that the prohibited act was
Violations of the Revised Penal Code are voluntarily done.
referred to as malum in se, which literally
means, that the act is inherently evil or bad 2. As to use of good faith as
or per se wrongful. On the other hand, defense
violations of special laws are generally
referred to as malum prohibitum. In crimes punished under the Revised Penal
Code, good faith or lack of criminal intent is
a valid defense; unless the crime is the
Note, however, that not all violations of result of culpa
special laws are mala prohibita. While
intentional felonies are always mala in se, it In crimes punished under special laws, good
does not follow that prohibited acts done in faith is not a defense
violation of special laws are always mala
prohibita. Even if the crime is punished 3. As to degree of accomplishment
under a special law, if the act punished is of the crime
one which is inherently wrong, the same is
malum in se, and, therefore, good faith and In crimes punished under the Revised Penal
the lack of criminal intent is a valid defense; Code, the degree of accomplishment of the
unless it is the product of criminal crime is taken into account in punishing the
negligence or culpa. offender; thus, there are attempted,
frustrated, and consummated stages in the
Likewise when the special laws requires that commission of the crime.
the punished act be committed knowingly
and willfully, criminal intent is required to be In crimes punished under special laws, the
proved before criminal liability may arise. act gives rise to a crime only when it is
consummated; there are no attempted or
When the act penalized is not inherently frustrated stages, unless the special law
wrong, it is wrong only because a law expressly penalize the mere attempt or
punishes the same. frustration of the crime.

For example, Presidential Decree No. 532 4. As to mitigating and aggravating

punishes piracy in Philippine waters and the circumstances
special law punishing brigandage in the
highways. These acts are inherently wrong In crimes punished under the
and although they are punished under Revised Penal Code, mitigating and
special law, the acts themselves are mala in aggravating circumstances are taken into
se; thus, good faith or lack of criminal intent account in imposing the penalty since the
is a defense. moral trait of the offender is considered.

In crimes punished under special

Distinction between crimes punished laws, mitigating and aggravating
under the Revised Penal Code and circumstances are not taken into account in
crimes punished under special laws imposing the penalty.
 advantageous to the municipality, and that
5. As to degree of participation he did not act with intent to gain, is not a
defense. The crime involved is malum
In crimes punished under the prohibitum.
Revised Penal Code, when there is more
than one offender, the degree of
participation of each in the commission of In the case of People v. Sunico, an election
the crime is taken into account in imposing registrar was prosecuted for having failed to
the penalty; thus, offenders are classified as include in the voter’s register the name of a
principal, accomplice and accessory. certain voter. There is a provision in the
election law which proscribes any person
In crimes punished under special laws, the from preventing or disenfranchising a voter
degree of participation of the offenders is from casting his vote. In trial, the election
not considered. All who perpetrated the registrar raised as good faith as a defense.
prohibited act are penalized to the same The trial court convicted him saying that
extent. There is no principal or accomplice good faith is not a defense in violation of
or accessory to consider. special laws. On appeal, it was held by he
Supreme Court that disenfranchising a voter
from casting his vote is not wrong because
Questions & Answers there is a provision of law declaring it as a
crime, but because with or without a law,
1. Three hijackers accosted the pilot of that act is wrong. In other words, it is
an airplane. They compelled the pilot to malum in se. Consequently, good faith is a
change destination, but before the same defense. Since the prosecution failed to
could be accomplished, the military was prove that the accused acted with malice,
alerted. What was the crime committed? he was acquitted.

Grave coercion. There is no such thing as

attempted hijacking. Under special laws, Test to determine if violation of special
the penalty is not imposed unless the act is law is malum prohibitum or malum in
consummated. Crimes committed against se
the provisions of a special law are penalized
only when the pernicious effects, which such Analyze the violation: Is it wrong because
law seeks to prevent, arise. there is a law prohibiting it or punishing it as
such? If you remove the law, will the act
2. A mayor awarded a concession to his still be wrong?
daughter. She was also the highest bidder.
The award was even endorsed by the If the wording of the law punishing the
municipal council as the most advantageous crime uses the word “willfully”, then malice
to the municipality. The losing bidder must be proven. Where malice is a factor,
challenged the validity of the contract, but good faith is a defense.
the trial court sustained its validity. The
case goes to the Sandiganbayan and the In violation of special law, the act
mayor gets convicted for violation of constituting the crime is a prohibited act.
Republic Act No. 3019 (Anti-Graft and Therefore culpa is not a basis of liability,
Corrupt Practices Act). He appeals alleging unless the special law punishes an omission.
his defenses raised in the Sandiganbayan
that he did not profit from the transaction, When given a problem, take note if the
that the contract was advantageous to the crime is a violation of the Revised Penal
municipality, and that he did not act with Code or a special law.
intent to gain. Rule.

Judgment affirmed. The contention FELONY, OFFENSE, MISDEMEANOR AND

of the mayor that he did not profit anything CRIME
from the transaction, that the contract was
 As far as jurisdiction or application of
Felony the Revised Penal Code over crimes
committed on maritime zones or interior
A crime under the Revised Penal Code is waters, the Archipelagic Rule shall be
referred to as a felony. Do not use this term observed. So the three-mile limit on our
in reference to a violation of special law. shoreline has been modified by the rule.
Any crime committed in interior waters
comprising the Philippine archipelago shall
Offense be subject to our laws although committed
on board a foreign merchant vessel.
A crimes punished under a special law is
called as statutory offense. A vessel is considered a Philippine ship only
when it is registered in accordance with
Philippine laws. Under international law, as
Misdemeanor long as such vessel is not within the
territorial waters of a foreign country,
A minor infraction of the law, such as a Philippine laws shall govern.
violation of an ordinance, is referred to as a
misdemeanor.
Extraterritorial application

Crime Extraterritorial application of the Revised

Penal Code on crime committed on board
Whether the wrongdoing is punished under Philippine ship or airship refers only to a
the Revised Penal Code or under a special situation where the Philippine ship or airship
law, the generic word crime can be used. is not within the territorial waters or
atmosphere of a foreign country.
Otherwise, it is the foreign country’s
SCOPE OF APPLICATION OF THE criminal law that will apply.
PROVISIONS OF THE REVISED PENAL
CODE However, there are two situations where the
foreign country may not apply its criminal
The provision in Article 2 embraces two law even if a crime was committed on board
scopes of applications: a vessel within its territorial waters and
these are:
(1) Intraterritorial – refers to the
application of the Revised Penal Code within (1) When the crime is committed in a
the Philippine territory; war vessel of a foreign country, because war
vessels are part of the sovereignty of the
(2) Extraterritorial – refers to the country to whose naval force they belong;
application of the Revised Penal Code
outside the Philippine territory. (2) When the foreign country in whose
territorial waters the crime was committed
adopts the French Rule, which applies only
Intraterritorial application to merchant vessels, except when the crime
committed affects the national security or
In the intraterritorial application of public order of such foreign country.
the Revised Penal Code, Article 2 makes it
clear that it does not refer only to Philippine
archipelago but it also includes the The French Rule
atmosphere, interior waters and maritime
zone. So whenever you use the word The French Rule provides that the
territory, do not limit this to land area only. nationality of the vessel follows the flag
which the vessel flies, unless the crime
committed endangers the national security
of a foreign country where the vessel is More than this, the revised provision added
within jurisdiction in which case such foreign the phrase “in accordance with generally
country will never lose jurisdiction over such accepted principles of International Law”.
vessel. So the intention is clear to adopt generally
accepted principles of international law in
the matter of exercising jurisdiction over
The American or Anglo-Saxon Rule crimes committed in a vessel while in the
course of its voyage. Under international
This rule strictly enforces the territoriality of law rule, a vessel which is not registered in
criminal law. The law of the foreign country accordance with the laws of any country is
where a foreign vessel is within its considered a pirate vessel and piracy is a
jurisdiction is strictly applied, except if the crime against humanity in general, such
crime affects only the internal management that wherever the pirates may go, they can
of the vessel in which case it is subject to be prosecuted.
the penal law of the country where it is
registered. Prior to the revision, the crime would not
have been prosecutable in our court. With
Both the rules apply only to a foreign the revision, registration is not anymore a
merchant vessel if a crime was committed requirement and replaced with generally
aboard that vessel while it was in the accepted principles of international law.
territorial waters of another country. If that Piracy is considered a crime against the law
vessel is in the high seas or open seas, of nations.
there is no occasion to apply the two rules.
If it is not within the jurisdiction of any In your answer, reference should be made
country, these rules will not apply. to the provision of paragraph c of Section15
of the Revised Rules of Criminal Procedure.
The crime may be regarded as an act of
Question & Answer piracy as long as it is done with “intent to
gain”.
A vessel is not registered in the Philippines.
A crime is committed outside Philippine
territorial waters. Then the vessel entered When public officers or employees
our territory. Will the Revised Penal Code commit an offense in the exercise of
apply? their functions

Yes. Under the old Rules of Criminal The most common subject of bar problems
Procedure, for our courts to take cognizance in Article 2 is paragraph 4: “While being
of any crime committed on board a vessel public officers or employees, [they] should
during its voyage, the vessel must be commit an offense in the exercise of their
registered in the Philippines in accordance functions:”
with Philippine laws.
As a general rule, the Revised Penal Code
Under the Revised Rules of Criminal governs only when the crime committed
Procedure, however, the requirement that pertains to the exercise of the public
the vessel must be licensed and registered official’s functions, those having to do with
in accordance with Philippine laws has been the discharge of their duties in a foreign
deleted from Section 25, paragraph c of country. The functions contemplated are
Rule 110 of the Rules of Court. The those, which are, under the law, to be
intention is to do away with that performed by the public officer in the
requirement so that as long as the vessel is Foreign Service of the Philippine
not registered under the laws of any government in a foreign country.
country, our courts can take cognizance of
the crime committed in such vessel. Exception: The Revised Penal Code
governs if the crime was committed within
the Philippine Embassy or within the
embassy grounds in a foreign country. This
is because embassy grounds are considered Illustration:
an extension of sovereignty. When a Filipino who is already
married in the Philippines, contracts another
Illustration: marriage abroad, the crime committed is
A Philippine consulate official who is validly bigamy. But the Filipino can not be
married here in the Philippines and who prosecuted when he comes back to the
marries again in a foreign country cannot be Philippines, because the bigamy was
prosecuted here for bigamy because this is committed in a foreign country and the
a crime not connected with his official crime is not covered by paragraph 5 of
duties. However, if the second marriage Article 2. However, if the Filipino, after the
was celebrated within the Philippine second marriage, returns to the Philippines
embassy, he may be prosecuted here, since and cohabits here with his second wife, he
it is as if he contracted the marriage here in commits the crime of concubinage for which
the Philippines. he can be prosecuted.
Question & Answer
The Revised Penal Code shall not apply to
A consul was to take a deposition in any other crime committed in a foreign
a hotel in Singapore. After the deposition, country which does not come under any of
the deponent approached the consul’s the exceptions and which is not a crime
daughter and requested that certain parts of against national security.
the deposition be changed in consideration
for $10,000.00. The daughter persuaded
the consul and the latter agreed. Will the HOW A FELONY MAY ARISE
crime be subject to the Revised Penal Code?
If so, what crime or crimes have been
committed? Punishable by the Revised Penal Code

Yes. Falsification. The term felony is limited only to

violations of the Revised Penal Code. When
Normally, the taking of the deposition is not the crime is punishable under a special law
the function of the consul, his function being you do not refer to this as a felony. So
the promotion of trade and commerce with whenever you encounter the term felony, it
another country. Under the Rules of Court, is to be understood as referring to crimes
however, a consul can take depositions or under the Revised Penal Code
letters rogatory. There is, therefore, a .
definite provision of the law making it the This is important because there are
consul’s function to take depositions. When certain provisions in the Revised Penal Code
he agreed to the falsification of the where the term “felony” is used, which
deposition, he was doing so as a public means that the provision is not extended to
officer in the service of the Philippine crimes under special laws. A specific
government. instance is found in Article 160 – Quasi-
Recidivism, which reads:
Paragraph 5 of Article 2, use the
phrase “as defined in Title One of Book Two A person who shall commit a felony
of this Code.” after having been convicted by final
This is a very important part of the judgment, before beginning to serve
exception, because Title I of Book 2 (crimes sentence or while serving the same, shall be
against national security) does not include punished under the maximum period of the
rebellion. So if acts of rebellion were penalty.
perpetrated by Filipinos who were in a
foreign country, you cannot give territorial Note that the word "felony" is used.
application to the Revised Penal Code,
because Title I of Book 2 does not include Questions & Answers
rebellion.
1. If a prisoner who is serving sentence the part of the offender as to the act done
is found in possession of dangerous drugs, by him.
can he be considered a quasi-recidivist?
The term, therefore, has three requisites
No. The violation of Presidential Decree No. on the part of the offender:
6425 (The Dangerous Drugs Act of 1972) is
not a felony. The provision of Article 160 (1) Criminal intent;
specifically refers to a felony and felonies
are those acts and omissions punished (2) Freedom of action; and
under the Revised Penal Code.
(3) Intelligence.
2. Is illegal possession of bladed
weapon a felony? If any of these is absent, there is no dolo. If
there is no dolo, there could be no
No. It is not under the Revised Penal Code. intentional felony.

An act or omission Question & Answer

To be considered as a felony there must be What requisites must concur before a

an act or omission; a mere imagination no felony may be committed?
matter how wrong does not amount to a
felony. An act refers to any kind of body There must be (1) an act or omission; (2)
movement that produces change in the punishable by the Revised Penal Code; and
outside world. For example, if A, a (3) the act is performed or the omission
passenger in a jeepney seated in front of a incurred by means of dolo or culpa.
lady, started putting out his tongue
suggesting lewdness, that is already an act
in contemplation of criminal law. He cannot But although there is no intentional felony,
claim that there was no crime committed. If there could be a culpable felony. Culpa
A scratches something, this is already an requires the concurrence of three
act which annoys the lady he may be requisites:
accused of unjust vexation, not malicious
mischief. (1) criminal negligence on the part of
the offender , that is, the crime was the
result of negligence, reckless imprudence,
Dolo or culpa lack of foresight or lack of skill;

However, It does not mean that if an act or (2) freedom of action on the part of the
omission is punished under the Revised offender, that is, he was not acting under
Penal Code, a felony is already committed. duress; and
To be considered a felony, it must also be
done with dolo or culpa. (3) Intelligence on the part of the
offender in performing the negligent act.
Under Article 3, there is dolo when there is
deceit. This is no longer true. At the time Between dolo and culpa, the distinction lies
the Revised Penal Code was codified, the on the criminal intent and criminal
term nearest to dolo was deceit. However, negligence. If any of these requisites is
deceit means fraud, and this is not the absent, there can be no dolo nor culpa.
meaning of dolo. When there is no dolo or culpa, a felony
cannot arise.
Dolo is deliberate intent otherwise referred
to as criminal intent, and must be coupled
with freedom of action and intelligence on Question & Answer
What do you understand by (1) When the crime is the product of
“voluntariness” in criminal law? culpa or negligence, reckless imprudence,
lack of foresight or lack of skill;
The word voluntariness in criminal law does
not mean acting in one’s own volition. In (2) When the crime is a prohibited act
criminal law, voluntariness comprehends under a special law or what is called malum
the concurrence of freedom of action, prohibitum.
intelligence and the fact that the act was
intentional. In culpable felonies, there is no
voluntariness if either freedom, intelligence Criminal Intent
or imprudence, negligence, lack of foresight
or lack of skill is lacking. Without Criminal Intent is not deceit. Do not use
voluntariness, there can be no dolo or culpa, deceit in translating dolo, because the
hence, there is no felony. nearest translation is deliberate intent.

In a case decided by the Supreme Court, In criminal law, intent is categorized into
two persons went wild boar hunting. On two:
their way, they met Pedro standing by the
door of his house and they asked him where (1) General criminal intent; and
they could find wild boars. Pedro pointed to
a place where wild boars were supposed to (2) Specific criminal intent.
be found, and the two proceeded thereto.
Upon getting to the place, they saw General criminal intent is presumed from
something moving, they shot, unfortunately the mere doing of a wrong act. This does
the bullet ricocheted killing Pedro. It was not require proof. The burden is upon the
held that since there was neither dolo nor wrong doer to prove that he acted without
culpa, there is no criminal liability. such criminal intent.

In US v. Bindoy, accused had an altercation Specific criminal intent is not presumed

with X. X snatched the bolo from the because it is an ingredient or element of a
accused. To prevent X from using his bolo crime, like intent to kill in the crimes of
on him, accused tried to get it from X. attempted or frustrated
Upon pulling it back towards him, he hit homicide/parricide/murder. The prosecution
someone from behind, instantly killing the has the burden of proving the same.
latter. The accused was found to be not
liable. In criminal law, there is pure Distinction between intent and
accident, and the principle damnum absque discernment
injuria is also honored.
Intent is the determination to do a certain
Even culpable felonies require thing, an aim or purpose of the mind. It is
voluntariness. It does not mean that if there the design to resolve or determination by
is no criminal intent, the offender is which a person acts.
absolved of criminal liability, because there
is culpa to consider. On the other hand, discernment is the
mental capacity to tell right from wrong. It
relates to the moral significance that a
Question & Answer person ascribes to his act and relates to the
intelligence as an element of dolo, distinct
May a crime be committed without from intent.
criminal intent?
Distinction between intent and motive
Yes. Criminal intent is not necessary in
these cases: Intent is demonstrated by the use of a
particular means to bring about a desired
result – it is not a state of mind or a reason Distinction between negligence and
for committing a crime. imprudence

On the other hand, motive implies motion. (1) In negligence, there is deficiency of
It is the moving power which impels one to action;
do an act. When there is motive in the
commission of a crime, it always comes (2) in imprudence, there is deficiency
before the intent. But a crime may be of perception.
committed without motive.
Mens rea
If the crime is intentional, it cannot be
committed without intent. Intent is The technical term mens rea is sometimes
manifested by the instrument used by the referred to in common parlance as the
offender. The specific criminal intent gravamen of the offense. To a layman, that
becomes material if the crime is to be is what you call the “bullseye” of the crime.
distinguished from the attempted or This term is used synonymously with
frustrated stage. For example, a husband criminal or deliberate intent, but that is not
came home and found his wife in a pleasant exactly correct.
conversation with a former suitor.
Thereupon, he got a knife. The moving Mens rea of the crime depends upon the
force is jealousy. The intent is the resort to elements of the crime. You can only detect
the knife, so that means he is desirous to kill the mens rea of a crime by knowing the
the former suitor. Even if the offender particular crime committed. Without
states that he had no reason to kill the reference to a particular crime, this term is
victim, this is not criminal intent. Criminal meaningless. For example, in theft, the
intent is the means resorted to by him that mens rea is the taking of the property of
brought about the killing. If we equate another with intent to gain. In falsification,
intent as a state of mind, many would the mens rea is the effecting of the forgery
escape criminal liability. with intent to pervert the truth. It is not
merely writing something that is not true;
In a case where mother and son were living the intent to pervert the truth must follow
in the same house, and the son got angry the performance of the act.
and strangled his mother, the son, when
prosecuted for parricide, raised the defense In criminal law, we sometimes have to
that he had no intent to kill his mother. It consider the crime on the basis of intent.
was held that criminal intent applies on the For example, attempted or frustrated
strangulation of the vital part of the body. homicide is distinguished from physical
Criminal intent is on the basis of the act, not injuries only by the intent to kill. Attempted
on the basis if what the offender says. rape is distinguished from acts of
lasciviousness by the intent to have sexual
Look into motive to determine the proper intercourse. In robbery, the mens rea is the
crime which can be imputed to the accused. taking of the property of another coupled
If a judge was killed, determine if the killing with the employment of intimidation or
has any relation to the official functions of violence upon persons or things; remove the
the judge in which case the crime would be employment of force or intimidation and it is
direct assault complexed with not robbery anymore.
murder/homicide, not the other way around.
If it has no relation, the crime is simply
homicide or murder. Mistake of fact

Omission is the inaction, the failure to When an offender acted out of a

perform a positive duty which he is bound to misapprehension of fact, it cannot be said
do. There must be a law requiring the doing that he acted with criminal intent. Thus, in
or performing of an act. criminal law, there is a “mistake of fact”.
When the offender acted out of a mistake of
fact, criminal intent is negated, so do not does not constitute destructive arson. You
presume that the act was done with criminal do not have malicious mischief through
intent. This is absolutory if crime involved simple negligence or reckless imprudence
dolo. because it requires deliberateness. Faller
was charged with malicious mischief, but
Mistake of fact would be relevant only when was convicted of damage to property
the felony would have been intentional or through reckless imprudence. The Supreme
through dolo, but not when the felony is a Court pointed out that although the
result of culpa. When the felony is a allegation in the information charged the
product of culpa, do not discuss mistake of accused with an intentional felony, yet the
fact. When the felonious act is the product words feloniously and unlawfully, which are
of dolo and the accused claimed to have standard languages in an information,
acted out of mistake of fact, there should be covers not only dolo but also culpa because
no culpa in determining the real facts, culpa is just a mode of committing a felony.
otherwise, he is still criminally liable,
although he acted out of a mistake of fact. In Quezon v. Justice of the Peace, Justice
Mistake of fact is only a defense in J.B.L. Reyes dissented and claimed that
intentional felony but never in culpable criminal negligence is a quasi-offense, and
felony. the correct designation should not be
homicide through reckless imprudence, but
reckless imprudence resulting in homicide.
Real concept of culpa The view of Justice Reyes is sound, but the
problem is Article 3, which states that culpa
Under Article 3, it is clear that culpa is just a is just a mode by which a felony may result.
modality by which a felony may be
committed. A felony may be committed or
incurred through dolo or culpa. Culpa is just Question & Answer
a means by which a felony may result.
Is culpa or criminal negligence a crime?
In Article 365, you have criminal negligence
as an omission which the article definitely or First, point out Article 3. Under Article 3, it
specifically penalized. The concept of is beyond question that culpa or criminal
criminal negligence is the inexcusable lack negligence is just a mode by which a felony
of precaution on the part of the person may arise; a felony may be committed or
performing or failing to perform an act. If incurred through dolo or culpa.
the danger impending from that situation is
clearly manifest, you have a case of However, Justice J.B.L. Reyes pointed out
reckless imprudence. But if the danger that that criminal negligence is a quasi–offense.
would result from such imprudence is not His reason is that if criminal negligence is
clear, not manifest nor immediate you have not a quasi-offense, and only a modality,
only a case of simple negligence. Because then it would have been absorbed in the
of Article 365, one might think that criminal commission of the felony and there would
negligence is the one being punished. That be no need for Article 365 as a separate
is why a question is created that criminal article for criminal negligence. Therefore,
negligence is the crime in itself. criminal negligence, according to him, is not
just a modality; it is a crime by itself, but
In People v. Faller, it was stated indirectly only a quasi-offense.
that that criminal negligence or culpa is just
a mode of incurring criminal liability. In this However, in Samson v. CA, where a person
case, the accused was charged with who has been charged with falsification as
malicious mischief. Malicious mischief is an an intentional felony, was found guilty of
intentional negligence under Article 327 of falsification through simple negligence. This
the Revised Penal Code. The provision means that means that culpa or criminal
expressly requires that there be a deliberate negligence is just a modality of committing
damaging of property of another, which a crime.
 court and prosecuting him again in another
In some decisions on a complex crime for the same criminal negligence. This is
resulting from criminal negligence, the tantamount to splitting a cause of action in
Supreme Court pointed out that when a civil case. For orderly procedure, the
crimes result from criminal negligence, they information should only be one. This
should not be made the subject of a however, also creates some doubts. As you
different information. For instance, the know, when the information charges the
offender was charged with simple accused for more than the crime, the
negligence resulting in slight physical information is defective unless the crime
injuries, and another charge for simple charged is a complex one or a special
negligence resulting in damage to property. complex crime.
The slight physical injuries which are the
result of criminal negligence are under the CRIMINAL LIABILITY
jurisdiction of the inferior court. But
damage to property, if the damage is more
than P2,000.00, would be under the Since in Article 3, a felony is an act or
jurisdiction of the Regional Trial Court omission punishable by law, particularly the
because the imposable fine ranges up to Revised Penal Code, it follows that whoever
three times the value of the damage. commits a felony incurs criminal liability. In
paragraph 1 of Article 4, the law uses the
In People v. Angeles, the prosecution filed word “felony”, that whoever commits a
an information against the accused in an felony incurs criminal liability. A felony may
inferior court for slight physical injuries arise not only when it is intended, but also
through reckless imprudence and filed also when it is the product of criminal
damage to property in the Regional Trial negligence. What makes paragraph 1 of
Court. The accused pleaded guilty to the Article 4 confusing is the addition of the
charge of slight physical injuries. When he qualifier “although the wrongful act be
was arraigned before the Regional Trial different from what he intended.”
Court, he invoked double jeopardy. He was
claiming that he could not be prosecuted
again for the same criminal negligence. The Questions & Answers
Supreme Court ruled that here is no double
jeopardy because the crimes are two 1. A man thought of committing suicide
different crimes. Slight physical injuries and and went on top of a tall building. He
damage to property are two different jumped, landing on somebody else, who
crimes. died instantly. Is he criminally liable?

In so ruling that there is no double jeopardy, Yes. A felony may result not only from dolo
the Supreme Court did not look into the but also from culpa. If that fellow who was
criminal negligence. The Supreme Court committing suicide acted negligently, he will
looked into the physical injuries and the be liable for criminal negligence resulting in
damage to property as the felonies and not the death of another.
criminal negligence.
2. A had been courting X for the last
In several cases that followed, the Supreme five years. X told A, “Let us just be friends.
Court ruled that where several I want a lawyer for a husband and I have
consequences result from reckless already found somebody whom I agreed to
imprudence or criminal negligence, the marry. Anyway there are still a lot of ladies
accused should be charged only in the around; you will still have your chance with
Regional Trial Court although the reckless another lady." A, trying to show that he is a
imprudence may result in slight physical sport, went down from the house of X, went
injuries. The Supreme Court argued that inside his car, and stepped on the
since there was only one criminal accelerator to the limit, closed his eyes,
negligence, it would be an error to split the started the vehicle. The vehicle zoomed,
same by prosecuting the accused in one running over all the pedestrians on the
street. At the end, the car stopped at the natural, and logical consequence of the
fence. He was taken to the hospital, and he felonious act.
survived. Can he be held criminally liable
for all those innocent people that he ran Proximate cause is that cause which sets
over, claiming that he was committing into motion other causes and which
suicide? unbroken by any efficient supervening
cause produces a felony without which such
He will be criminally liable, not for an felony could not have resulted. He who is
intentional felony, but for culpable felony. the cause of the cause is the evil of the
This is so because, in paragraph 1 of Article cause. As a general rule, the offender is
4, the term used is “felony”, and that term criminally liable for all the consequences of
covers both dolo and culpa. his felonious act, although not intended, if
the felonious act is the proximate cause of
3. A pregnant woman thought of killing the felony or resulting felony. A proximate
herself by climbing up a tall building and cause is not necessarily the immediate
jumped down below. Instead of falling in cause. This may be a cause which is far and
the pavement, she fell on the owner of the remote from the consequence which sets
building. An abortion resulted. Is she liable into motion other causes which resulted in
for an unintentional abortion? If not, what the felony.
possible crime may be committed?
Illustrations:
The relevant matter is whether the pregnant
woman could commit unintentional abortion A, B, C, D and E were driving their vehicles
upon herself. The answer is no because the along Ortigas Aveue. A's car was ahead,
way the law defines unintentional abortion, followed by those of B, C, D, and E. When
it requires physical violence coming from a A's car reached the intersection of EDSA and
third party. When a pregnant woman does Ortigas Avenue, the traffic light turned red
an act that would bring about abortion, it is so A immediately stepped on his break,
always intentional. Unintentional abortion followed by B, C, D. However, E was not
can only result when a third person employs aware that the traffic light had turned to
physical violence upon a pregnant woman red, so he bumped the car of D, then D hit
resulting to an unintended abortion. the car of C, then C hit the car of B, then,
finally, B hit the car of A. In this case, the
immediate cause to the damage of the car
In one case, a pregnant woman and man of A is the car of B, but that is not the
quarreled. The man could no longer bear proximate cause. The proximate cause is
the shouting of the woman, so he got his the car of E because it was the car of E
firearm and poked it into the mouth of the which sets into motion the cars to bump into
woman. The woman became hysterical, so each other.
she ran as fast as she could, which resulted
in an abortion. The man was prosecuted for In one case, A and B, who are brothers-in-
unintentional abortion. It was held that an law, had a quarrel. At the height of their
unintentional abortion was not committed. quarrel, A shot B with an airgun. B was hit
However, drawing a weapon in the height of at the stomach, which bled profusely. When
a quarrel is a crime of other light threats A saw this, he put B on the bed and told him
under Article 285. An unintentional abortion not to leave the bed because he will call a
can only be committed out of physical doctor. While A was away, B rose from the
violence, not from mere threat. bed, went into the kitchen and got a kitchen
knife and cut his throat. The doctor arrived
and said that the wound in the stomach is
Proximate cause only superficial; only that it is a bleeder, but
the doctor could no longer save him
Article 4, paragraph 1 presupposes that because B’s throat was already cut.
the act done is the proximate cause of the Eventually, B died. A was prosecuted for
resulting felony. It must be the direct, manslaughter. The Supreme Court
rationalized that what made B cut his throat, same. The accused must, therefore, be
in the absence of evidence that he wanted considered as the author of the death of the
to commit suicide, is the belief that sooner victim.
or later, he would die out of the wound
inflicted by A. Because of that belief, he This case illustrates that proximate cause
decided to shorten the agony by cutting his does not require that the offender needs to
throat. That belief would not be engendered actually touch the body of the offended
in his mind were it not because of the party. It is enough that the offender
profuse bleeding from his wound. Now, that generated in the mind of the offended party
profusely bleeding would not have been the belief that made him risk himself.
there, were it not for the wound inflicted by
A. As a result, A was convicted for If a person shouted fire, and because of that
manslaughter. a moviegoer jumped into the fire escape
and died, the person who shouted fire when
In criminal law, as long as the act of the there is no fire is criminally liable for the
accused contributed to the death of the death of that person.
victim, even if the victim is about to die, he
will still be liable for the felonious act of In a case where a wife had to go out to the
putting to death that victim. In one cold to escape a brutal husband and
decision, the Supreme Court held that the because of that she was exposed to the
most precious moment in a man’s life is that element and caught pneumonia, the
of losing seconds when he is about to die. husband was made criminally liable for the
So when you robbed him of that, you should death of the wife.
be liable for his death. Even if a person is
already dying, if one suffocates him to end Even though the attending physician may
up his agony, one will be liable for murder, have been negligent and the negligence
when you put him to death, in a situation brought about the death of the offending
where he is utterly defenseless. party – in other words, if the treatment was
not negligent, the offended party would
In US v. Valdez, the deceased is a member have survived – is no defense at all, because
of the crew of a vessel. Accused is in without the wound inflicted by the offender,
charge of the crewmembers engaged in the there would have been no occasion for a
loading of cargo in the vessel. Because the medical treatment.
offended party was slow in his work, the
accused shouted at him. The offended party Even if the wound was called slight but
replied that they would be better if he would because of the careless treatment, it was
not insult them. The accused resented this, aggravated, the offender is liable for the
and rising in rage, he moved towards the death of the victim not only of the slight
victim, with a big knife in hand threatening physical injuries. Reason – without the injury
to kill him. The victim believing himself to being inflicted, there would have been no
be in immediate peril, threw himself into the need for any medical treatment. That the
water. The victim died of drowning. The medical treatment proved to be careless or
accused was prosecuted for homicide. His negligent, is not enough to relieve the
contention that his liability should be only offender of the liability for the inflicting
for grave threats since he did not even stab injuries.
the victim, that the victim died of drowning,
and this can be considered as a supervening When a person inflicted wound upon
cause. It was held that the deceased, in another, and his victim upon coming home
throwing himself into the river, acted solely got some leaves, pounded them and put
in obedience to the instinct of self- lime there, and applying this to the wound,
preservation, and was in no sense legally developed locked jaw and eventually he
responsible for his own death. As to him, it died, it was held that the one who inflicted
was but the exercise of a choice between the wound is liable for his death.
two evils, and any reasonable person under
the same circumstance might have done the
In another instance, during a quarrel, the A, if at all, is only liable for physical injuries
victim was wounded. The wound was inflicted upon B.
superficial, but just the same the doctor put
inside some packing. When the victim went If you are confronted with this facts of the
home, he could not stand the pain, so he Urbano case, where the offended party died
pulled out the packing. That resulted into because of tetanus poisoning, reason out
profuse bleeding and he died because of according to that reasoning laid down by the
loss of blood. The offender who caused the Supreme Court, meaning to say, the
wound, although the wound caused was incubation period of the tetanus poisoning
only slight, was held answerable for the was considered. Since tetanus toxic would
death of the victim, even if the victim would affect the victim for no longer than two
not have died were it not for the fact that he weeks,, the fact that the victim died two
pulled out that packing. The principle is months later shows that it is no longer
that without the wound, the act of the tetanus brought about by the act of the
physician or the act of the offended party accused. The tetanus was gathered by his
would not have anything to do with the working in the farm and that is already an
wound, and since the wound was inflicted efficient intervening cause.
by the offender, whatever happens on that
wound, he should be made punishable for The one who caused the proximate cause is
that. the one liable. The one who caused the
immediate cause is also liable, but merely
In Urbano v. IAC, A and B had a quarrel and contributory or sometimes totally not liable.
started hacking each other. B was wounded
at the back. Cooler heads intervened and
they were separated. Somehow, their Wrongful act done be different from
differences were patched up. A agreed to what was intended
shoulder all the expenses for the treatment
of the wound of B, and to pay him also What makes the first paragraph of Article 4
whatever lost of income B may have failed confusing is the qualification “although the
to receive. B, on the other hand, signed a wrongful act done be different from what
forgiveness in favor of A and on that was intended”. There are three situations
condition, he withdrew the complaint that contemplated under paragraph 1 of Article
he filed against A. After so many weeks of 4:
treatment in a clinic, the doctor pronounced
the wound already healed. Thereafter, B (1) Aberratio ictus or mistake in the
went back to his farm. Two months later, B blow;
came home and he was chilling. Before
midnight, he died out of tetanus poisoning. (2) Error in personae or mistake in
The heirs of B filed a case of homicide identity; and
against A. The Supreme Court held that A is
not liable. It took into account the (3) Praeter intentionem or where the
incubation period of tetanus toxic. Medical consequence exceeded the intention.
evidence were presented that tetanus toxic
is good only for two weeks. That if, indeed,
the victim had incurred tetanus poisoning Aberration ictus
out of the wound inflicted by A, he would
not have lasted two months. What brought In aberratio ictus, a person directed the
about tetanus to infect the body of B was blow at an intended victim, but because of
his working in his farm using his bare hands. poor aim, that blow landed on somebody
Because of this, the Supreme Court said else. In aberratio ictus, the intended victim
that the act of B of working in his farm as well as the actual victim are both at the
where the soil is filthy, using his own hands, scene of the crime.
is an efficient supervening cause which Distinguish this from error in personae,
relieves A of any liability for the death of B. where the victim actually received the blow,
but he was mistaken for another who was
not at the scene of the crime. The
distinction is important because the legal The facts were one of aberratio ictus, but
effects are not the same. the facts stated that the offender aimed
carelessly in firing the shot. Is the felony
In aberratio ictus, the offender delivers the the result of dolo or culpa? What crime was
blow upon the intended victim, but because committed?
of poor aim the blow landed on somebody
else. You have a complex crime, unless the All three instances under paragraph 1,
resulting consequence is not a grave or less Article 4 are the product of dolo. In
grave felony. You have a single act as aberratio ictus, error in personae and
against the intended victim and also giving praeter intentionem, never think of these as
rise to another felony as against the actual the product of culpa. They are always the
victim. To be more specific, let us take for result of an intended felony, and, henc,e
example A and B. A and B are enemies. As dolo. You cannot have these situations out
soon as A saw B at a distance, A shot at B. of criminal negligence. The crime
However, because of poor aim, it was not B committed is attempted homicide or
who was hit but C. You can readily see that attempted murder, not homicide through
there is only one single act – the act of firing reckless imprudence.
at B. In so far as B is concerned, the crime
at least is attempted homicide or attempted
murder, as the case may be, if there is any Error in personae
qualifying circumstance. As far as the third
party C is concerned, if C were killed, crime In error in personae, the intended victim
is homicide. If C was only wounded, the was not at the scene of the crime. It was
crime is only physical injuries. You cannot the actual victim upon whom the blow was
have attempted or frustrated homicide or directed, but he was not really the intended
murder as far as C is concerned, because as victim. There was really a mistake in
far as C is concern, there is no intent to kill. identity.
As far as that other victim is concerned, only
physical injuries – serious or less serious or This is very important because Article 49
slight. applies only in a case of error in personae
and not in a case of abberatio ictus.
If the resulting physical injuries were only
slight, then you cannot complex; you will In Article 49, when the crime intended is
have one prosecution for the attempted more serious than the crime actually
homicide or murder, and another committed or vice-versa, whichever crime
prosecution for slight physical injuries for carries the lesser penalty, that penalty will
the innocent party. But if the innocent party be the one imposed. But it will be imposed
was seriously injured or less seriously in the maximum period. For instance, the
injured, then you have another grave or less offender intended to commit homicide, but
grave felony resulting from the same act what was actually committed with parricide
which gave rise to attempted homicide or because the person he killed by mistake
murder against B; hence, a complex crime. was somebody related to him within the
degree of relationship in parricide. In such a
In other words, aberratio ictus, generally case, the offender will be charged with
gives rise to a complex crime. This being parricide, but the penalty that would be
so, the penalty for the more serious crime is imposed will be that of homicide. This is
imposed in the maximum period. This is the because under Article 49, the penalty for
legal effect. The only time when a complex the lesser crime will be the one imposed,
crime may not result in aberratio ictus is whatever crime the offender is prosecuted
when one of the resulting felonies is a light under. In any event, the offender is
felony. prosecuted for the crime committed not for
the crime intended.

Question & Answer Illustrations:

 pavement. He suffered cerebral
A thought of killing B. He positioned himself hemorrhage. Although Gacogo claimed that
at one corner where B would usually pass. he had no intention of killing the victim, his
When a figure resembling B was claim is useless. Intent to kill is only
approaching, A hid and when that figure relevant when the victim did not die. This is
was near him, he suddenly hit him with a so because the purpose of intent to kill is to
piece of wood on the nape, killing him. But differentiate the crime of physical injuries
it turned out that it was his own father. The from the crime of attempted homicide or
crime committed is parricide, although what attempted murder or frustrated homicide or
was intended was homicide. Article 49, frustrated murder. But once the victim is
therefore, will apply because out of a dead, you do not talk of intent to kill
mistake in identity, a crime was committed anymore. The best evidence of intent to kill
different from that which was intended. is the fact that victim was killed. Although
Gacogo was convicted for homicide for the
In another instance, A thought of killing B. death of the person, he was given the
Instead of B, C passed. A thought that he benefit of paragraph 3 of Article13, that is, "
was B, so he hit C on the neck, killing the that the offender did not intend to commit
latter. Just the same, the crime intended to so grave a wrong as that committed”.
be committed is homicide and what was
committed is actually homicide, Article 49 This is the consequence of praeter
does not apply. Here, error in personae is of intentionem. In short, praeter intentionem
no effect. is mitigating, particularly covered by
paragraph 3 of Article 13. In order however,
How does error in personae affect that the situation may qualify as praeter
criminal liability of the offender? intentionem, there must be a notable
disparity between the means employed and
Error in personae is mitigating if the crime the resulting felony. If there is no disparity
committed is different from that which was between the means employed by the
intended. If the crime committed is the offender and the resulting felony, this
same as that which was intended, error in circumstance cannot be availed of. It
personae does not affect the criminal cannot be a case of praeter intentionem
liability of the offender. because the intention of a person is
determined from the means resorted to by
In mistake of identity, if the crime him in committing the crime.
committed was the same as the crime
intended, but on a different victim, error in Illustrations:
persona does not affect the criminal liability
of the offender. But if the crime committed A stabbed his friend when they had a
was different from the crime intended, drinking spree. While they were drinking,
Article 49 will apply and the penalty for the they had some argument about a basketball
lesser crime will be applied. In a way, game and they could not agree, so he
mistake in identity is a mitigating stabbed him eleven times. His defense is
circumstance where Article 49 applies. that he had no intention of killing his friend.
Where the crime intended is more serious He did not intend to commit so grave a
than the crime committed, the error in wrong as that committed. It was held that
persona is not a mitigating circumstance the fact that 11 wounds were inflicted on A's
Praeter intentionem friend is hardly compatible with the idea
that he did not intend to commit so grave a
In People v. Gacogo, 53 Phil 524, two wrong that committed.
persons quarreled. They had fist blows.
The other started to run away and Gacogo In another instance, the accused was a
went after him, struck him with a fist blow at homosexual. The victim ridiculed or
the back of the head. Because the victim humiliated him while he was going to the
was running, he lost balance, he fell on the restroom. He was so irritated that he just
pavement and his head struck the cement stabbed the victim at the neck with a lady’s
comb with a pointed handle, killing the offender was prosecuted for the serious
victim. His defense was that he did not crime of rape with homicide and he was not
intend to kill him. He did not intend to given the benefit of paragraph 3, Article 13.
commit so grave a wrong as that of killing
him. That contention was rejected, because Differentiating this first case with the case
the instrument used was pointed. The part of the Chinamana nd his wife, it would seem
of the body wherein it was directed was the that the difference lies in the means
neck which is a vital part of the body. In employed by the offender.
praeter intentionem, it is mitigating only if
there is a notable or notorious disparity In praeter intentionem, it is essential that
between the means employed and the there is a notable disparity between the
resulting felony. In criminal law, intent of means employed or the act of the offender
the offender is determined on the basis and the felony which resulted. This means
employed by him and the manner in which that the resulting felony cannot be foreseen
he committed the crime. Intention of the from the acts of the offender. If the
offender is not what is in his mind; it is resulting felony can be foreseen or
disclosed in the manner in which he anticipated from the means employed, the
committed the crime. circumstance of praeter intentionem does
not apply.
In still another case, the accused entered
the store of a Chinese couple, to commit For example, if A gave B a karate blow in
robbery. They hogtied the Chinaman and his the throat, there is no praeter intentionem
wife. Because the wife was so talkative, one because the blow to the throat can result in
of the offenders got a pan de sal and put it death.
in her mouth. But because the woman was
trying to wriggle from the bondage, the pan So also, if A tried to intimidate B by poking a
de sal slipped through her throat. She died gun at the latter’s back, and B died of a
because of suffocation. The offender were cardiac arrest, A will be prosecuted for
convicted for robbery with homicide homicide but will be given the mitigating
because there was a resulting death, circumstance praeter intentionem.
although their intention was only to rob.
They were given the benefit of paragraph 3
of Article 13, “that they did not intend to Impossible crime
commit so grave a wrong as that
committed”. There was really no intention An impossible crime is an act which would
to bring about the killing, because it was the be an offense against person or property
pan de sal they put into the mouth. Had it were it not for the inherent impossibility of
been a piece of rag, it would be different. In its accomplishment or on account of the
that case, the Supreme Court gave the employment of inadequate or ineffectual
offenders the benefit of praeter intentionem means.
as a mitigating circumstance. The means
employed is not capable of producing death
if only the woman chewed the pan de sal. Question & Answer

A man raped a young girl. The young girl 1. Accused was a houseboy in a house
was shouting so the man placed his hand on where only a spinster resides. It is
the mouth and nose of the victim. He found customary for the spinster to sleep nude
out later that the victim was dead already; because her room was warm. It was also
she died of suffocation. The offender the habit of the houseboy that whenever
begged that he had no intention of killing she enters her room, the houseboy would
the girl and that his only intention was to follow and peek into the keyhole. Finally,
prevent her from shouting. The Supreme when the houseboy could no longer resist
Court rejected the plea saying that one can the urge, he climbed into the ceiling, went
always expect that a person who is inside the room of his master, placed
suffocated may eventually die. So the himself on top of her and abused her, not
knowing that she was already dead five the inherent impossibility of the means
minutes earlier. Is an impossible crime employed to bring about the crime. When
committed? we say inherent impossibility, this means
that under any and all circumstances, the
Yes. Before, the act performed by the crime could not have materialized. If the
offender could not have been a crime crime could have materialized under a
against person or property. The act different set of facts, employing the same
performed would have been constituted a mean or the same act, it is not an
crime against chastity. An impossible crime impossible crime; it would be an attempted
is true only if the act done by the offender felony.
constitutes a crime against person or
property. However, with the new rape law Under Article 4, paragraph 2, impossible
amending the Revised Penal Code and crime is true only when the crime
classifying rape as a crime against persons, committed would have been against person
it is now possible that an impossible crime or against property. It is, therefore,
was committed. Note, however, that the important to know what are the crimes
crime might also fall under the Revised under Title VIII, against persons and those
Administrative Code – desecrating the dead. against property under Title X. An
impossible crime is true only to any of those
2. A was driving his car around Roxas crimes.
Boulevard when a person hitched a ride.
Because this person was exquisitely 3. A entered a department store at
dressed, A readily welcomed the fellow about midnight, when it was already closed.
inside his car and he continued driving. He went directly to the room where the safe
When he reached a motel, A suddenly or vault was being kept. He succeeded in
swerved his car inside. A started kissing his opening the safe, but the safe was empty.
passenger, but he found out that his Is an impossible crime committed? If not,
passenger was not a woman but a man, and what crime is possibly committed?
so he pushed him out of the car, and gave
him fist blows. Is an impossible crime This is not an impossible crime. That is only
committed? If not, is there any crime true if there is nothing more to steal. But in
committed at all? a department store, where there is plenty to
steal, not only the money inside the vault or
It cannot be an impossible crime, because safe. The fact that the vault had turned out
the act would have been a crime against to be empty is not really inherently
chastity. The crime is physical injuries or impossible to commit the crime of robbery.
acts of lasciviousness, if this was done There are other things that he could take.
against the will of the passenger. There are The crime committed therefore is attempted
two ways of committing acts of robbery, assuming that he did not lay his
lasciviousness. Under Article 336, where hands on any other article. This could not
the acts of lasciviousness were committed be trespass to dwelling because there are
under circumstances of rape, meaning to other things that can be stolen.
say, there is employment of violence or
intimidation or the victim is deprived of 4. A and B were lovers. B was willing to
reason. Even if the victim is a man, the marry A except that A is already married. A
crime of acts of lasciviousness is committed. thought of killing his wife. He prepared her
This is a crime that is not limited to a victim breakfast every morning, and every
who is a woman. Acts of lasciviousness morning, he placed a little dose of arsenic
require a victim to be a woman only when it poison into the breakfast of the wife. The
is committed under circumstances of wife consumed all the food prepared by her
seduction. If it is committed under the husband including the poison but nothing
circumstances of rape, the victim may be a happened to the wife. Because of the
man or a woman. The essence of an volume of the household chores that the
impossible crime is the inherent wife had to attend to daily, she developed a
impossibility of accomplishing the crime or physical condition that rendered her so
strong and resistance to any kind of felonious act. What prevented the
poisoning, so the amount of poison applied consummation of the crime was because of
to her breakfast has no effect to her. Is some cause independent of the will of the
there an impossible crime? perpetrator.

No impossible crime is committed because 6. A and B are enemies. A, upon seeing

the fact itself stated that what prevented B, got the revolver of his father, shot B, but
the poison from taking effect is the physical the revolver did not discharge because the
condition of the woman. So it implies that if bullets were old, none of them discharged.
the woman was not of such physical Was an impossible crime committed?
condition, the poison would have taken
effect. Hence, it is not inherently impossible No. It was purely accidental that the
to realize the killing. The crime committed firearm did not discharge because the
is frustrated parricide. bullets were old. If they were new, it would
have fired. That is a cause other than the
If it were a case of poisoning, an impossible spontaneous desistance of the offender, and
crime would be constituted if a person who therefore, an attempted homicide.
was thinking that it was a poison that he
was putting into the food of the intended But if let us say, when he started squeezing
victim but actually it was vetsin or sugar or the trigger, he did not realize that the
soda. Under any and all circumstances, the firearm was empty. There was no bullet at
crime could not have been realized. But if all. There is an impossible crime, because
due to the quantity of vetsin or sugar or under any and all circumstances, an
soda, the intended victim developed LBM unloaded firearm will never fire.
and was hospitalized, then it would not be a
case of impossible crime anymore. It would Whenever you are confronted with a
be a case of physical injuries, if the act done problem where the facts suggest that an
does not amount to some other crime under impossible crime was committed, be careful
the Revised Penal Code. about the question asked. If the question
asked is: “Is an impossible crime
Do not confuse an impossible crime committed?”, then you judge that question
with the attempted or frustrated stage. on the basis of the facts. If really the facts
constitute an impossible crime, then you
5. Scott and Charles are roommate in a suggest than an impossible crime is
boarding house. Everyday, Scott leaves for committed, then you state the reason for
work but before leaving he would lock the the inherent impossibility.
food cabinet where he kept his food.
Charles resented this. One day, he got an If the question asked is “Is he liable for an
electric cord tied the one end to the door impossible crime?”, this is a catching
knob and plugged the other end to an question. Even though the facts constitute
electric outlet. The idea was that, when an impossible crime, if the act done by the
Scott comes home to open the door knob, offender constitutes some other crimes
he would be electrocuted. Unknown to under the Revised Penal Code, he will not be
Charles, Scott is working in an electronic liable for an impossible crime. He will be
shop where he received a daily dosage of prosecuted for the crime constituted so far
electric shock. When Scott opened the by the act done by him. The reason is an
doorknob, nothing happened to him. He offender is punished for an impossible crime
was just surprised to find out that there was just to teach him a lesson because of his
an electric cord plugged to the outlet and criminal perversity. Although objectively, no
the other hand to the door knob. Whether crime is committed, but subjectively, he is a
an impossible crime was committed or not? criminal. That purpose of the law will also
be served if he is prosecuted for some other
It is not an impossible crime. The means crime constituted by his acts which are also
employed is not inherently impossible to punishable under the RPC.
bring about the consequence of his
7. A and B are neighbors. They are bedroom, all four fired at and riddled said
jealous of each other’s social status. A room with bullets, thinking that the intended
thought of killing B so A climbed the house victim was already there as it was about
of B through the window and stabbed B on 10:00 in the evening. It so happened that
the heart, not knowing that B died a few the intended victim did not come home on
minutes ago of bangungot. Is A liable for an the evening and so was not in her bedroom
impossible crime? at that time. Eventually the culprits were
prosecuted and convicted by the trial court
No. A shall be liable for qualified trespass to for attempted murder. The Court of Appeals
dwelling. Although the act done by A affirmed the judgment but the Supreme
against B constitutes an impossible crime, it Court modified the same and held the
is the principle of criminal law that the petitioner liable only for the so-called
offender shall be punished for an impossible impossible crime. As a result, petitioner-
crime only when his act cannot be punished accused was sentenced to imprisonment of
under some other provisions in the Revised only six months of arresto mayor for the
Penal Code. felonious act he committed with intent to
kill: this despite the destruction done to the
In other words, this idea of an impossible intended victim’s house. Somehow, the
crime is a one of last resort, just to teach decision depreciated the seriousness of the
the offender a lesson because of his criminal act committed, considering the lawlessness
perversity. If he could be taught of the by which the culprits carried out the
same lesson by charging him with some intended crime, and so some members of
other crime constituted by his act, then that the bench and bar spoke out against the
will be the proper way. If you want to play soundness of the ruling. Some asked
safe, you state there that although an questions: Was it really the impossibility of
impossible crime is constituted, yet it is a accomplishing the killing that brought about
principle of criminal law that he will only be its non-accomplishment? Was it not purely
penalized for an impossible crime if he accidental that the intended victim did not
cannot be punished under some other come home that evening and, thus,
provision of the Revised Penal Code. unknown to the culprits, she was not in her
bedroom at the time it was shot and riddled
If the question is “Is an impossible crime is with bullets? Suppose, instead of using
committed?”, the answer is yes, because firearms, the culprits set fire on the
on the basis of the facts stated, an intended victim’s house, believing she was
impossible crime is committed. But to play there when in fact she was not, would the
safe, add another paragraph: However, the criminal liability be for an impossible crime?
offender will not be prosecuted for an Until the Intod case, the prevailing attitude
impossible crime but for _____ [state the was that the provision of the Revised Penal
crime]. Because it is a principle in criminal Code on impossible crime would only apply
law that the offender can only be when the wrongful act, which would have
prosecuted for an impossible crime if his constituted a crime against persons or
acts do not constitute some other crimes property, could not and did not constitute
punishable under the Revised Penal Code. another felony. Otherwise, if such act
An impossible crime is a crime of last resort. constituted any other felony although
different from what the offender intended,
the criminal liability should be for such other
Modified concept of impossible crime: felony and not for an impossible crime. The
attitude was so because Article 4 of the
In a way, the concept of impossible crime Code provides two situations where criminal
has been modified by the decision of the liability shall be incurred, to wit:
Supreme Court in the case of Intod v. CA, et
al., 215 SCRA 52. In this case, four culprits, Art 4. Criminal liability – Criminal liability
all armed with firearms and with intent to shall be incurred:
kill, went to the intended victim’s house and
after having pinpointed the latter’s
1. By any person committing a felony
(delito) although the wrongful act be (1) The court cannot convict the accused
different from that which he intended. because the acts do not constitute a crime.
The proper judgment is acquittal, but the
2. By any person performing an act court is mandated to report to the Chief
which would be an offense against persons Executive that said act be made subject of
or property, were it not for the inherent penal legislation and why.
impossibility of its accomplishment or on
account of the employment of inadequate or (2) Where the court finds the penalty
ineffectual means. prescribed for the crime too harsh
considering the conditions surrounding the
Paragraph 1 refers to a situation where the commission of he crime, the judge should
wrongful act done constituted a felony impose the law. The most that he could do
although it may be different from what he is to recommend to the Chief Executive to
intended. Paragraph 2 refers to a situation grant executive clemency.
where the wrongful act done did not
constitute any felony, but because the act
would have given rise to a crime against STAGES IN THE COMMISSION OF
persons or against property, the same is FELONY
penalized to repress criminal tendencies to
curtail their frequency. Because criminal The classification of stages of a felony in
liability for impossible crime presupposes Article 6 are true only to crimes under the
that no felony resulted from the wrongful Revised Penal Code. This does not apply to
act done, the penalty is fixed at arresto crimes punished under special laws. But
mayor or a fine from P200.00 to P500.00, even certain crimes which are punished
depending on the “social danger and degree under the Revised Penal Code do not admit
of criminality shown by the offender” of these stages.
(Article 59), regardless of whether the
wrongful act was an impossible crime The purpose of classifying penalties is to
against persons or against property. bring about a proportionate penalty and
equitable punishment. The penalties are
There is no logic in applying paragraph 2 of graduated according to their degree of
Article 4 to a situation governed by severity. The stages may not apply to all
paragraph 1 of the same Article, that is, kinds of felonies. There are felonies which
where a felony resulted. Otherwise, a do not admit of division.
redundancy and duplicity would be
perpetrated.
Formal crimes
In the Intod case, the wrongful acts of the
culprits caused destruction to the house of Formal crimes are crimes which are
the intended victim; this felonious act consummated in one instance. For
negates the idea of an impossible crime. example, in oral defamation, there is no
But whether we agree or not, the Supreme attempted oral defamation or frustrated oral
Court has spoken, we have to respect its defamation; it is always in the
ruling. consummated stage.
NO CRIME UNLESS THERE IS A LAW
PUNISHING IT So also, in illegal exaction under Article 213
is a crime committed when a public officer
When a person is charged in court, and the who is authorized to collect taxes, licenses
court finds that there is no law applicable, or impose for the government, shall demand
the court will acquit the accused and the an amount bigger than or different from
judge will give his opinion that the said act what the law authorizes him to collect.
should be punished. Under sub-paragraph a of Article 213 on
Illegal exaction, the law uses the word
Article 5 covers two situations: “demanding”. Mere demanding of an
amount different from what the law No. Overt act begins when the husband
authorizes him to collect will already mixed the poison with the food his wife is
consummate a crime, whether the taxpayer going to take. Before this, there is no
pays the amount being demanded or not. attempted stage yet.
Payment of the amount being demanded is
not essential to the consummation of the An overt act is that act which if allowed to
crime. continue in its natural course would
definitely result into a felony.
The difference between the attempted
stage and the frustrated stage lies on In the attempted stage, the definition uses
whether the offender has performed all the the word “directly”. This is significant. In the
acts of execution for the accomplishment of attempted stage, the acts so far performed
a felony. Literally, under the article, if the may already be a crime or it may be just an
offender has performed all the acts of ingredient of another crime. The word
execution which should produce the felony "directly’" emphasizes the requirement that
as a consequence but the felony was not the attempted felony is that which is
realized, then the crime is already in the directly linked to the overt act performed by
frustrated stage. If the offender has not yet the offender, not the felony he has in his
performed all the acts of execution – there mind.
is yet something to be performed – but he
was not able to perform all the acts of In criminal law, you are not allowed to
execution due to some cause or accident speculate, not to imagine what crime is
other than his own spontaneous desistance, intended, but apply the provisions of the law
then you have an attempted felony. of the facts given.

You will notice that the felony begins when When a person starts entering the dwelling
the offender performs an overt act. Not any of another, that act is already trespassing.
act will mark the beginning of a felony, and But the act of entering is an ingredient of
therefore, if the act so far being done does robbery with force upon things. You could
not begin a felony, criminal liability only hold him liable for attempted robbery
correspondingly does not begin. In criminal when he has already completed all acts
law, there is such a thing as preparatory performed by him directly leading to
act. These acts do not give rise to criminal robbery. The act of entering alone is not yet
liability. indicative of robbery although that may be
what he may have planned to commit. In
law, the attempted stage is only that overt
Question & Answer act which is directly linked to the felony
intended to be committed.
A and B are husband and wife. A met C who
was willing to marry him, but he is already In US v. Namaja, the accused was arrested
married. A thought of eliminating B and to while he was detaching some of the wood
poison her. So, he went to the drugstore and panels of a store. He was already able to
bought arsenic poison. On the way out, he detach two wood panels. To a layman, the
met D. D asked him who was sick in the only conclusion that will come to your mind
family, A confided to D that he bought the is that this fellow started to enter the store
poison to poison his wife in order to marry to steal something. He would not be there
C. After that, they parted ways. D went just to sleep there. But in criminal law, since
directly to the police and reported that A is the act of removing the panel indicates only
going to kill his wife. So the policemen went at most the intention to enter. He can only
to A’s house and found A still unwrapping be prosecuted for trespass. The removal of
the arsenic poison. The policemen asked A if the panelling is just an attempt to trespass,
he was planning to poison B and A said yes. not an attempt to rob. Although, Namaja
Police arrested him and charged him with was prosecuted for attempted robbery, the
attempted parricide. Is the charge correct? Supreme Court held it is only attempted
trespass because that is the crime that can
be directly linked to his act of removing the though there was desistance on the part of
wood panel. the offender, if the desistance was made
There are some acts which are ingredients when acts done by him already resulted to a
of a certain crime, but which are, by felony, that offender will still be criminally
themselves, already criminal offenses. liable for the felony brought about his act.
What is negated is only the attempted
In abduction, your desire may lead to acts of stage, but there may be other felony
lasciviousness. In so far the woman being constituting his act.
carried is concerned, she may already be
the victim of lascivious acts. The crime is
not attempted abduction but acts of
lasciviousness. You only hold him liable for
an attempt, so far as could be reasonably
linked to the overt act done by him. Do not Illustrations:
go far and imagine what you should do.
A fired at B and B was hit on the shoulder.
But B's wound was not mortal. What A then
Question & Answer did was to approach B, and told B, “Now you
are dead, I will kill you.” But A took pity and
A awakened one morning with a man kept the revolver and left. The crime
sleeping in his sofa. Beside the man was a committed is attempted homicide and not
bag containing picklocks and similar tools. physical injuries, because there was an
He found out that the man entered his sala intention to kill. The desistance was with
by cutting the screen on his window. If you the second shot and would not affect the
were to prosecute this fellow, for what crime first shot because the first shot had already
are you going to prosecute him? hit B. The second attempt has nothing to do
with the first.
The act done by him of entering through an
opening not intended for the purpose is only In another instance, A has a very seductive
qualified trespass. Qualified trespass neighbor in the person of B. A had always
because he did so by cutting through the been looking at B and had wanted to
screen. There was force applied in order to possess her but their status were not the
enter. Other than that, under Article 304 of same. One evening, after A saw B at her
the Revised Penal Code, illegal possession house and thought that B was already
of picklocks and similar tools is a crime. asleep, he entered the house of B through
Thus, he can be prosecuted for two crimes: the window to abuse her. He, however,
(1) qualified trespass to dwelling, and (2) found out that B was nude, so he lost
illegal possession of picklocks and similar interest and left. Can a be accused of
tools; not complex because one is not attempted rape? No, because there was
necessary means to commit the other. desistance, which prevented the crime from
being consummated. The attempted stage
was erased because the offender desisted
Desistance after having commenced the commission of
the felony.
Desistance on the part of the offender
negates criminal liability in the attempted The attempted felony is erased by
stage. Desistance is true only in the desistance because the offender
attempted stage of the felony. If under the spontaneously desisted from pursuing the
definition of the felony, the act done is acts of execution. It does not mean,
already in the frustrated stage, no amount however, that there is no more felony
of desistance will negate criminal liability. committed. He may be liable for a
consummated felony constituted by his act
The spontaneous desistance of the offender of trespassing. When A entered the house
negates only the attempted stage but not through the window, which is not intended
necessarily all criminal liability. Even for entrance, it is always presumed to be
against the will of the owner. If the offender attempted stage. A corruptor gives money
proceeded to abuse the woman, but the to a public officer for the latter not to
latter screamed, and A went out of the prosecute him. The public officer received
window again, he could not be prosecuted the money but just the same, arrested him.
for qualified trespass. Dwelling is taken as He received the money to have evidence of
an aggravating circumstance so he will be corruption. Do not think that because the
prosecuted for attempted rape aggravated corruptor has already delivered the money,
by dwelling. he has already performed all the acts of
execution, and, therefore, the corruption is
In deciding whether a felony is already beyond the attempted stage. That
attempted or frustrated or thinking does away with the concept of the
consummated, there are three criteria crime that it requires two to commit. The
involved: manner of committing the crime requires
the meeting of the minds between the giver
(1) The manner of committing the and the receiver.
crime;
When the giver delivers the money to the
(2) The elements of the crime; and supposed receiver, but there is no meeting
of the minds, the only act done by the giver
(3) The nature of the crime itself. is an attempt. It is not possible for him to
perform all the acts of execution because in
the first place, the receiver has no intention
of being corrupted.
Manner of committing a crime Similarly, when a public officer demands a
consideration by official duty, the corruptor
For example, let us take the crime of turns down the demand, there is no bribery.
bribery. Can the crime of frustrated bribery
be committed? No. (Incidentally, the If the one to whom the demand was made
common concept of bribery is that it is the pretended to give, but he had reported the
act of one who corrupts a public officer. matter to higher authorities, the money was
Actually, bribery is the crime of the receiver marked and this was delivered to the public
not the giver. The crime of the giver is officer. If the public officer was arrested, do
corruption of public official. Bribery is the not think that because the public officer
crime of the public officer who in already had the money in his possession,
consideration of an act having to do with his the crime is already frustrated bribery, it is
official duties would receive something, or only attempted bribery. This is because the
accept any promise or present in supposed corruptor has no intention to
consideration thereof.) corrupt. In short, there is no meeting of the
minds. On the other hand, if there is a
The confusion arises from the fact that this meeting of the minds, there is
crime requires two to commit -- the giver consummated bribery or consummated
and the receiver. The law called the crime of corruption. This leaves out the frustrated
the giver as corruption of public official and stage because of the manner of committing
the receiver as bribery. Giving the idea that the crime.
these are independent crimes, but actually,
they cannot arise without the other. Hence, But indirect bribery is always consummated.
if only one side of the crime is present, only This is because the manner of
corruption, you cannot have a consummating the crime does not admit of
consummated corruption without the attempt or frustration.
corresponding consummated bribery. There
cannot be a consummated bribery without You will notice that under the Revised Penal
the corresponding consummated corruption. Code, when it takes two to commit the
If you have bribery only, it is only possible in crime, there could hardly be a frustrated
the attempted stage. If you have a stage. For instance, the crime of adultery.
corruption only, it is possible only in the There is no frustrated adultery. Only
attempted or consummated. This is because that, the frustrated stage of arson has been
it requires the link of two participants. If that eased out. The reasoning is that one cannot
link is there, the crime is consummated; if say that the offender, in the crime of arson,
such link is absent, there is only an has already performed all the acts of
attempted adultery. There is no middle execution which could produce the
ground when the link is there and when the destruction of the premises through the use
link is absent. of fire, unless a part of the premises has
begun to burn. If it has not begun to burn,
There are instances where an intended that means that the offender has not yet
felony could already result from the acts of performed all the acts of execution. On the
execution already done. Because of this, other hand, the moment it begins to burn,
there are felonies where the offender can the crime is consummated. Actually, the
only be determined to have performed all frustrated stage is already standing on the
the acts of execution when the resulting consummated stage except that the
felony is already accomplished. Without the outcome did not result. As far as the stage
resulting felony, there is no way of is concerned, the frustrated stage overlaps
determining whether the offender has the consummated stage.
already performed all the acts or not. It is in
such felonies that the frustrated stage does Because of this reasoning by the Court of
not exist because without the felony being Appeals in People v. Garcia, the Supreme
accomplished, there is no way of stating Court followed the analysis that one cannot
that the offender has already performed all say that the offender in the crime of arson
the acts of execution. An example of this is has already performed all the acts of
the crime of rape. The essence of the crime execution which would produce the arson as
is carnal knowledge. No matter what the a consequence, unless and until a part of
offender may do to accomplish a the premises had begun to burn.
penetration, if there was no penetration yet,
it cannot be said that the offender has In US v. Valdez, the offender had tried to
performed all the acts of execution. We can burn the premises by gathering jute sacks
only say that the offender in rape has laying these inside the room. He lighted
performed all the acts of execution when he these, and as soon as the jute sacks began
has effected a penetration. Once there is to burn, he ran away. The occupants of the
penetration already, no matter how slight, room put out the fire. The court held that
the offense is consummated. For this what was committed was frustrated arson.
reason, rape admits only of the attempted
and consummated stages, no frustrated This case was much the way before the
stage. This was the ruling in the case of decision in the case of People v. Garcia was
People v. Orita. handed down and the Court of Appeals ruled
that there is no frustrated arson. But even
In rape, it requires the connection of the then, the analysis in the case of US v.
offender and the offended party. No Valdez is correct. This is because, in
penetration at all, there is only an determining whether the felony is
attempted stage. Slightest penetration or attempted, frustrated or consummated, the
slightest connection, consummated. You will court does not only consider the definition
notice this from the nature of the crime under Article 6 of the Revised Penal Code,
requiring two participants. or the stages of execution of the felony.
When the offender has already passed the
This is also true in the crime of arson. It subjective stage of the felony, it is beyond
does not admit of the frustrated stage. In the attempted stage. It is already on the
arson, the moment any particle of the consummated or frustrated stage
premises intended to be burned is depending on whether a felony resulted. If
blackened, that is already an indication that the felony did not result, frustrated.
the premises have begun to burn. It does
not require that the entire premises be The attempted stage is said to be within the
burned to consummate arson. Because of subjective phase of execution of a felony.
On the subjective phase, it is that point in single burn of any instrument or agency of
time when the offender begins the the crime.
commission of an overt act until that point
where he loses control of the commission of The analysis made by the Court of Appeals
the crime already. If he has reached that is still correct: that they could not
point where he can no longer control the demonstrate a situation where the offender
ensuing consequence, the crime has already has performed all the acts of execution to
passed the subjective phase and, therefore, bring about the crime of arson and the
it is no longer attempted. The moment the situation where he has not yet performed all
execution of the crime has already gone to the acts of execution. The weight of the
that point where the felony should follow as authority is that the crime of arson cannot
a consequence, it is either already be committed in the frustrated stage. The
frustrated or consummated. If the felony reason is because we can hardly determine
does not follow as a consequence, it is whether the offender has performed all the
already frustrated. If the felony follows as a acts of execution that would result in arson,
consequence, it is consummated. as a consequence, unless a part of the
premises has started to burn. On the other
The trouble is that, in the jurisprudence hand, the moment a particle or a molecule
recognizing the objective phase and the of the premises has blackened, in law, arson
subjective phase, the Supreme Court is consummated. This is because
considered not only the acts of the offender, consummated arson does not require that
but also his belief. That although the the whole of the premises be burned. It is
offender may not have done the act to bring enough that any part of the premises, no
about the felony as a consequence, if he matter how small, has begun to burn.
could have continued committing those acts
but he himself did not proceed because he There are also certain crimes that do not
believed that he had done enough to admit of the attempted or frustrated stage,
consummate the crime, Supreme Court said like physical injuries. One of the known
the subjective phase has passed. This was commentators in criminal law has advanced
applied in the case of US v. Valdez, where the view that the crime of physical injuries
the offender, having already put kerosene can be committed in the attempted as well
on the jute sacks, lighted the same, he had as the frustrated stage. He explained that
no reason not to believe that the fire would by going through the definition of an
spread, so he ran away. That act attempted and a frustrated felony under
demonstrated that in his mind, he believed Article 6, if a person who was about to give
that he has performed all the acts of a fist blow to another raises his arms, but
execution and that it is only a matter of before he could throw the blow, somebody
time that the premises will burn. The fact holds that arm, there would be attempted
that the occupant of the other room came physical injuries. The reason for this is
out and put out the fire is a cause because the offender was not able to
independent of the will of the perpetrator. perform all the acts of execution to bring
about physical injuries.
The ruling in the case of US v. Valdez is still
correct. But in the case of People v. Garcia, On the other hand, he also stated that the
the situation is different. Here, the offender crime of physical injuries may be committed
who put the torch over the house of the in the frustrated stage when the offender
offended party, the house being a nipa hut, was able to throw the blow but somehow,
the torch which was lighted could easily the offended party was able to sidestep
burn the roof of the nipa hut. But the torch away from the blow. He reasoned out that
burned out. the crime would be frustrated because the
offender was able to perform all the acts of
In that case, you cannot say that the execution which would bring about the
offender believed that he had performed all felony were it not for a cause independent
the acts of execution. There was not even a of the will of the perpetrator.
The explanation is academic. You will Along this concept of deformity in law, the
notice that under the Revised Penal Code, plastic surgery applied to B is beside the
the crime of physical injuries is penalized on point. In law, what is considered is not the
the basis of the gravity of the injuries. artificial or the scientific treatment but the
Actually, there is no simple crime of physical natural healing of the injury. So the fact
injuries. You have to categorize because that there was plastic surgery applied to B
there are specific articles that apply does not relieve the offender from the
whether the physical injuries are serious, liability for the physical injuries inflicted.
less serious or slight. If you say physical The crime committed is serious physical
injuries, you do not know which article to injuries. It is consummated. In determining
apply. This being so, you could not punish whether a felony is attempted, frustrated or
the attempted or frustrated stage because consummated, you have to consider the
you do not know what crime of physical manner of committing the felony, the
injuries was committed. element of the felony and the nature of the
felony itself. There is no real hard and fast
rule.
Questions & Answers

1. Is there an attempted slight Elements of the crime

physical injuries?
In the crime of estafa, the element of
If there is no result, you do not know. damage is essential before the crime could
Criminal law cannot stand on any be consummated. If there is no damage,
speculation or ambiguity; otherwise, the even if the offender succeeded in carting
presumption of innocence would be away the personal property involved, estafa
sacrificed. Therefore, the commentator’s cannot be considered as consummated. For
opinion cannot stand because you cannot the crime of estafa to be consummated,
tell what particular physical injuries was there must be misappropriation already
attempted or frustrated unless the done, so that there is damage already
consequence is there. You cannot classify suffered by the offended party. If there is no
the physical injuries. damage yet, the estafa can only be
frustrated or attempted.
2. A threw muriatic acid on the face of
B. The injuries would have resulted in On the other hand, if it were a crime of
deformity were it not for timely plastic theft, damage or intent to cause damage is
surgery. After the surgery, B became more not an element of theft. What is necessary
handsome. What crime is committed? Is it only is intent to gain, not even gain is
attempted, frustrated or consummated? important. The mere intent to derive some
profit is enough but the thinking must be
The crime committed here is serious complete before a crime of theft shall be
physical injuries because of the deformity. consummated. That is why we made that
When there is deformity, you disregard the distinction between theft and estafa.
healing duration of the wound or the
medical treatment required by the wound. If the personal property was received by the
In order that in law, a deformity can be said offender, this is where you have to decide
to exist, three factors must concur: whether what was transferred to the
offender is juridical possession or physical
The injury should bring about the possession only. If the offender did not
ugliness; receive the personal property, but took the
same from the possession of the owner
(2) The ugliness must be visible; without the latter’s consent, then there is no
problem. That cannot be estafa; this is only
(3) The ugliness would not disappear theft or none at all.
through natural healing process.
In estafa, the offender receives the frustrated. If he is in the act of trying to take
property; he does not take it. But in the wallet or place it under, attempted.
receiving the property, the recipient may be
committing theft, not estafa, if what was “Taking” in the concept of theft, simply
transferred to him was only the physical or means exercising control over the thing.
material possession of the object. It can
only be estafa if what was transferred to If instead of the wallet, the man who
him is not only material or physical entered the room pretended to carry the
possession but juridical possession as well. table out of the room, and the wallet is
there. While taking the table out of the
When you are discussing estafa, do not talk room, I apprehended him. It turned out that
about intent to gain. In the same manner he is not authorized at all and is interested
that when you are discussing the crime of only in the wallet, not the table. The crime
theft, do not talk of damage. is not yet consummated. It is only frustrated
because as far as the table is concern, it is
The crime of theft is the one commonly the confines of this room that is the
given under Article 6. This is so because the container. As long as he has not taken this
concept of theft under the Revised Penal table out of the four walls of this room, the
Code differs from the concept of larceny taking is not complete.
under American common law. Under
American common law, the crime of larceny A man entered a room and found a chest on
which is equivalent to our crime of theft the table. He opened it found some
here requires that the offender must be able valuables inside. He took the valuables, put
to carry away or transport the thing being them in his pocket and was arrested. In this
stolen. Without that carrying away, the case, theft is consummated.
larceny cannot be consummated.
In our concept of theft, the offender need But if he does not take the valuables but
not move an inch from where he was. It is lifts the entire chest, and before he could
not a matter of carrying away. It is a matter leave the room, he was apprehended, there
of whether he has already acquired is frustrated theft.
complete control of the personal property
involved. That complete control simply If the thing is stolen from a compound or
means that the offender has already from a room, as long as the object has not
supplanted his will from the will of the been brought out of that room, or from the
possessor or owner of the personal property perimeter of the compound, the crime is
involved, such that he could exercise his only frustrated. This is the confusion raised
own control on the thing. in the case of US v. Diño compared with
People v. Adio and People v. Espiritu.
Illustration:
In US v. Diño, the accused loaded boxes of
I placed a wallet on a table inside a room. A rifle on their truck. When they were on their
stranger comes inside the room, gets the way out of the South Harbor, they were
wallet and puts it in his pocket. I suddenly checked at the checkpoint, so they were not
started searching him and I found the wallet able to leave the compound. It was held
inside his pocket. The crime of theft is that what was committed was frustrated
already consummated because he already Theft.
acquired complete control of my wallet. This
is so true when he removed the wallet from In People v. Espiritu, the accused were on
the confines of the table. He can exercise their way out of the supply house when they
his will over the wallet already, he can drop were apprehended by military police who
this on the floor, etc. found them secreting some hospital linen. It
But as long as the wallet remains on the was held that what was committed was
table, the theft is not yet consummated; consummated theft.
there can only be attempted or frustrated
theft. If he has started lifting the wallet, it is
The emphasis, which was erroneously laid in cocks. He discovered that the fighting
some commentaries, is that, in both cases, cocks were not physically fit for cockfighting
the offenders were not able to pass the so he returned it. The crime is
checkpoint. But why is it that in one, it is consummated theft. The will of the owner is
frustrated and in the other, it is to keep the fighting cock inside the chicken
consummated? coop. When the offender succeeded in
bringing the cock out of the coop, it is clear
In the case of US v. Diño, the boxes of rifle that his will completely governed or
were stocked file inside the compound of superseded the will of the owner to keep
the South Harbor. As far as the boxes of such cock inside the chicken coop. Hence,
rifle are concerned, it is the perimeter of the the crime was already consummated, and
compound that is the container. As long as being consummated, the return of the
they were not able to bring these boxes of owner’s property is not desistance anymore.
rifle out of the compound, the taking is not The offender is criminally liable but he will
complete. On the other hand, in the case of not be civilly liable because the object was
People v. Espiritu, what were taken were returned.
hospital linens. These were taken from a
warehouse. Hospital linens were taken from When the receptacle is locked or sealed,
boxes that were diffused or destroyed and and the offender broke the same, in lieu of
brought out of the hospital. From the theft, the crime is robbery with force upon
moment they took it out of the boxes where things. However, that the receptacle is
the owner or the possessor had placed it, locked or sealed has nothing to do with the
the control is complete. You do not have to stage of the commission of the crime. It
go out of the compound to complete the refers only to whether it is theft or robbery
taking or the control. with force upon things.

This is very decisive in the problem because

in most problems given in the bar, the Nature of the crime itself
offender, after having taken the object out
of the container changed his mind and In crimes involving the taking of human life
returned it. Is he criminally liable? Do not – parricide, homicide, and murder – in the
make a mistake by saying that there is a definition of the frustrated stage, it is
desistance. If the crime is one of theft, the indispensable that the victim be mortally
moment he brought it out, it was wounded. Under the definition of the
consummated. The return of the thing frustrated stage, to consider the offender as
cannot be desistance because in criminal having performed all the acts of execution,
law, desistance is true only in the attempted the acts already done by him must produce
stage. You cannot talk of desistance or be capable of producing a felony as a
anymore when it is already in the consequence. The general rule is that there
consummated stage. If the offender has must be a fatal injury inflicted, because it is
already acquired complete control of what only then that death will follow.
he intended to take, the fact that he
changed his mind and returned the same If the wound is not mortal, the crime is only
will no longer affect his criminal liability. It attempted. The reason is that the wound
will only affect the civil liability of the crime inflicted is not capable of bringing about the
because he will no longer be required to pay desired felony of parricide, murder or
the object. As far as the crime committed is homicide as a consequence; it cannot be
concerned, the offender is criminally liable said that the offender has performed all the
and the crime is consummated theft. acts of execution which would produce
parricide, homicide or murder as a result.
Illustration:
An exception to the general rule is the so-
A and B are neighbors. One evening, A called subjective phase. The Supreme Court
entered the yard of B and opened the has decided cases which applied the
chicken coop where B keeps his fighting subjective standard that when the offender
himself believed that he had performed all
the acts of execution, even though no When the conspiracy is only a basis of
mortal wound was inflicted, the act is incurring criminal liability, there must be an
already in the frustrated stage. overt act done before the co-conspirators
become criminally liable.

CONSPIRACY AND PROPOSAL TO When the conspiracy itself is a crime, this

COMMITE A FELONY cannot be inferred or deduced because
there is no overt act. All that there is the
Two ways for conspiracy to exist: agreement. On the other hand, if the co-
conspirator or any of them would execute
(1) There is an agreement. an overt act, the crime would no longer be
the conspiracy but the overt act itself.
(2) The participants acted in concert or
simultaneously which is indicative of a Illustration:
meeting of the minds towards a common
criminal goal or criminal objective. When A, B, C and D came to an agreement to
several offenders act in a synchronized, commit rebellion. Their agreement was to
coordinated manner, the fact that their acts bring about the rebellion on a certain date.
complimented each other is indicative of the Even if none of them has performed the act
meeting of the minds. There is an implied of rebellion, there is already criminal liability
agreement. arising from the conspiracy to commit the
rebellion. But if anyone of them has
Two kinds of conspiracy: committed the overt act of rebellion, the
crime of all is no longer conspiracy to
(1) Conspiracy as a crime; and commit rebellion but rebellion itself. This
(2) Conspiracy as a manner of incurring subsists even though the other co-
criminal liability conspirator does not know that one of them
had already done the act of rebellion.
When conspiracy itself is a crime, no overt
act is necessary to bring about the criminal This legal consequence is not true if the
liability. The mere conspiracy is the crime conspiracy is not a crime. If the conspiracy
itself. This is only true when the law is only a basis of criminal liability, none of
expressly punishes the mere conspiracy; the co-conspirators would be liable, unless
otherwise, the conspiracy does not bring there is an overt act. So, for as long as
about the commission of the crime because anyone shall desist before an overt act in
conspiracy is not an overt act but a mere furtherance of the crime was committed,
preparatory act. Treason, rebellion, such a desistance would negate criminal
sedition, and coup d’etat are the only liability.
crimes where the conspiracy and proposal
to commit to them are punishable. Illustration:

Three persons plan to rob a bank. For as

Question & Answer long as none of the conspirators has
committed an overt act, there is no crime
Union A proposed acts of sedition to Union yet. But when one of them commits any
B. Is there a crime committed? Assuming overt act, all of them shall be held liable,
Union B accepts the proposal, will your unless a co-conspirator was absent from the
answer be different? scene of the crime or he showed up, but he
tried to prevent the commission of the crime
There is no crime committed. Proposal to
commit sedition is not a crime. But if Union As a general rule, if there has been a
B accepts the proposal, there will be conspiracy to commit a crime in a particular
conspiracy to commit sedition which is a place, anyone who did not appear shall be
crime under the Revised Penal Code. presumed to have desisted. The exception
to this is if such person who did not appear the degree of injury inflicted by any one of
was the mastermind. them. All will be liable for the
consequences. A conspiracy is possible
We have to observe the distinction between even when participants are not known to
the two because conspiracy as a crime, each other. Do not think that participants
must have a clear and convincing evidence are always known to each other.
of its existence. Every crime must be
proved beyond reasonable doubt. Illustrations:

When the conspiracy is just a basis of A thought of having her husband killed
incurring criminal liability, however, the because the latter was maltreating her. She
same may be deduced or inferred from the hired some persons to kill him and pointed
acts of several offenders in carrying out the at her husband. The goons got hold of her
commission of the crime. The existence of a husband and started mauling him. The wife
conspiracy may be reasonably inferred from took pity and shouted for them to stop but
the acts of the offenders when such acts the goons continued. The wife ran away.
disclose or show a common pursuit of the The wife was prosecuted for parricide. But
criminal objective. This was the ruling in the Supreme Court said that there was
People v. Pinto, 204 SCRA 9. desistance so she is not criminally liable.

Although conspiracy is defined as two or A law student resented the fact that his
more person coming to an agreement brother was killed by A. He hired B to kill A
regarding the commission of a felony and and offered him P50,000.00. He disclosed
deciding to commit it, the word “person” to B that A was being arraigned in the City
here should not be understood to require a Hall of Manila and told him to execute the
meeting of the co-conspirator regarding the plan on the following day. In the evening of
commission of the felony. A conspiracy of that same day, the law student changed his
the second kind can be inferred or deduced mind so he immediately went to the police
even though they have not met as long as and told them to dispatch police officers to
they acted in concert or simultaneously, prevent B from committing the crime.
indicative of a meeting of the minds toward Unfortunately, the police were caught in
a common goal or objective. traffic causing their delay, so that when
they reached the place, B had already killed
Conspiracy is a matter of substance which A. In this case, there was no proposal but a
must be alleged in the information, conspiracy. They have conspired to execute
otherwise, the court will not consider the a crime but the crime involved here is
same. murder and a conspiracy to commit murder
is not a crime in itself but merely a basis for
In People v. Laurio, 200 SCRA 489, it was incurring criminal liability. This is just a
held that it must be established by positive preparatory act, and his desistance negates
and conclusive evidence, not by conjectures criminal liability.
or speculations.
Proposal is true only up to the point where
In Taer v. CA, 186 SCRA 5980, it was held the party to whom the proposal was made
that mere knowledge, acquiescence to, or has not yet accepted the proposal. Once
approval of the act, without cooperation or the proposal was accepted, a conspiracy
at least, agreement to cooperate, is not arises. Proposal is unilateral, one party
enough to constitute a conspiracy. There makes a proposition to the other; conspiracy
must be an intentional participation in the is bilateral, it requires two parties.
crime with a view to further the common
felonious objective. As pointed out earlier, desistance is true
only in the attempted stage. Before this
When several persons who do not know stage, there is only a preparatory stage.
each other simultaneously attack the victim, Conspiracy is only in the preparatory stage.
the act of one is the act of all, regardless of
The Supreme Court has ruled that one who and C learned about this, they all stood up
desisted is not criminally liable. “When a to leave the house of the young lady feeling
person has set foot to the path of disappointed. When A looked back at the
wickedness and brings back his foot to the young lady with D, he saw D laughing
path of righteousness, the law shall reward menacingly. At that instance, A stabbed D.
him for doing so.” C and B followed. In this case, it was held
that conspiracy was present.
Where there are several persons who
participated, like in a killing, and they The common notion is that when there is
attacked the victim simultaneously, so much conspiracy involved, the participants are
so that it cannot be known what punished as principals. This notion is no
participation each one had, all these longer absolute. In the case of People v.
participants shall be considered as having Nierra, the Supreme Court ruled that even
acted in conspiracy and they will be held though there was conspiracy, if a co-
collectively responsible. conspirator merely cooperated in the
Do not search for an agreement among the commission of the crime with insignificant
participants. If they acted simultaneously to or minimal acts, such that even without his
bring about their common intention, cooperation, the crime could be carried out
conspiracy exists. And when conspiracy as well, such co-conspirator should be
exists, do not consider the degree of punished as an accomplice only. The
participation of each conspirator because reason given is that penal laws always favor
the act of one is the act of all. As a general a milder form of responsibility upon an
rule, they have equal criminal responsibility. offender. So it is no longer accurate to think
that when there is a conspiracy, all are
principals.
Question & Answer
Notwithstanding that there is conspiracy, a
There are several offenders who acted co-conspirator may be held liable only as an
simultaneously. When they fled, a victim accomplice. That means the penalty which
was found dead. Who should be liable for shall be imposed upon him is one degree
the killing if who actually killed the victim is lower.
not known? For example, there was a planned robbery,
and the taxi driver was present during the
There is collective responsibility here. planning. There, the conspirators told the
Without the principle of conspiracy, nobody taxi driver that they are going to use his
would be prosecuted; hence, there is the taxicab in going to the place of robbery.
rule on collective responsibility since it The taxi driver agreed but said, “I will bring
cannot be ascertained who actually killed you there, and after committing the robbery
the victim. I will return later”. The taxi driver brought
the conspirators where the robbery would
There is conspiracy when the offenders be committed. After the robbery was
acted simultaneously pursuing a common finished, he took the conspirators back to
criminal design; thus, acting out a common his taxi and brought them away. It was held
criminal intent. that the taxi driver was liable only as an
accomplice. His cooperation was not really
Illustration: indispensable. The robbers could have
engaged another taxi. The taxi driver did
A, B and C have been courting the same not really stay during the commission of the
lady for several years. On several robbery. At most, what he only extended
occasions, they even visited the lady on was his cooperation. That is why he was
intervening hours. Because of this, A, B and given only that penalty for an accomplice.
C became hostile with one another. One
day, D invited the young lady and she A, B, and C, under the influence of
accepted the invitation. Eventually, the marijuana, broke into a house because they
young lady agreed to marry D. When A, B learned that the occupants have gone on an
excursion. They ransacked the house. A designated areas in pursuit of the plan.
got a colored TV, B saw a camera and took While A was ransacking the second floor,
that, and C found a can of salmon and took the owner was awakened. A killed him. A,
that. In the crime of robbery with force B and C will be liable for robbery with
upon things, the penalty is based on the homicide. This is because, it is well settled
totality of the value of the personal property that any killing taking place while robbery is
taken and not on the individual property being committed shall be treated as a single
taken by him. indivisible offense.

In Siton v. CA, it was held that the idea of a As a general rule, when there is conspiracy,
conspiracy is incompatible with the idea of a the rule is that the act of one is the act of
free for all. There is no definite opponent or all. This principle applies only to the crime
definite intent as when a basketball crowd agreed upon.
beats a referee to death.
The exception is if any of the co-conspirator
would commit a crime not agreed upon.
Composite crimes This happens when the crime agreed upon
and the crime committed by one of the co-
Composite crimes are crimes which, in conspirators are distinct crimes.
substance, consist of more than one crime
but in the eyes of the law, there is only one Exception to the exception: In acts
crime. For example, the crimes of robbery constituting a single indivisible offense,
with homicide, robbery with rape, robbery even though the co-conspirator performed
with physical injuries. different acts bringing about the composite
crime, all will be liable for such crime. They
In case the crime committed is a composite can only evade responsibility for any other
crime, the conspirator will be liable for all crime outside of that agreed upon if it is
the acts committed during the commission proved that the particular conspirator had
of the crime agreed upon. This is because, tried to prevent the commission of such
in the eyes of the law, all those acts done in other act.
pursuance of the crime agreed upon are
acts which constitute a single crime. The rule would be different if the crime
committed was not a composite crime.
Illustrations:

A, B, and C decided to commit robbery in Illustration:

the house of D. Pursuant to their A, B and C agreed to kill D. When they saw
agreement, A would ransack the second the opportunity, A, B and C killed D and
floor, B was to wait outside, and C would after that, A and B ran into different
stay on the first floor. Unknown to B and C, directions. C inspected the pocket of the
A raped the girl upstairs. All of them will be victim and found that the victim was
liable for robbery with rape. The crime wearing a ring – a diamond ring – and he
committed is robbery with rape, which is not took it. The crimes committed are homicide
a complex crime, but an indivisible felony and theft. As far as the homicide is
under the Article 294 of the Revised Penal concerned, A, B and C are liable because
Code. Even if B and C did not know that that was agreed upon and theft was not an
rape was being committed and they agreed integral part of homicide. This is a distinct
only and conspired to rob, yet rape was part crime so the rule will not apply because it
of robbery. Rape can not be separated from was not the crime agreed upon. Insofar as
robbery. the crime of theft is concerned, C will be the
only one liable. So C will be liable for
A, B and C agreed to rob the house of D. It homicide and theft.
was agreed that A would go the second
floor, B would stay in the first floor, and C
stands guard outside. All went to their CLASSIFICATION OF FELONIES
 commission of which the penalty is arresto
This question was asked in the bar menor.
examination: How do you classify felonies or
how are felonies classified? Why is it necessary to determine
whether the crime is grave, less grave
What the examiner had in mind was Articles or light?
3, 6 and 9. Do not write the classification of
felonies under Book 2 of the Revised Penal To determine whether these felonies can be
Code. That was not what the examiner had complexed or not, and to determine the
in mind because the question does not prescription of the crime and the
require the candidate to classify but also to prescription of the penalty. In other words,
define. Therefore, the examiner was after these are felonies classified according to
the classifications under Articles 3, 6 and 9. their gravity, stages and the penalty
attached to them. Take note that when the
Felonies are classified as follows: Revised Penal Code speaks of grave and
less grave felonies, the definition makes a
According to the manner of their reference specifically to Article 25 of the
commission Revised Penal Code. Do not omit the phrase
“In accordance with Article 25” because
Under Article 3, they are classified as, there is also a classification of penalties
intentional felonies or those committed with under Article 26 that was not applied.
deliberate intent; and culpable felonies or
those resulting from negligence, reckless If the penalty is fine and exactly P200.00, it
imprudence, lack of foresight or lack of skill. is only considered a light felony under
Article 9.
According to the stages of their
execution If the fine is imposed as an alternative
penalty or as a single penalty, the fine of
Under Article 6., felonies are classified as P200.00 is considered a correctional penalty
attempted felony when the offender under Article 26.
commences the commission of a felony
directly by overt acts, and does not perform If the penalty is exactly P200.00, apply
all the acts of execution which should Article 26. It is considered as correctional
produce the felony by reason of some cause penalty and it prescribes in 10 years. If the
or accident other than his own spontaneous offender is apprehended at any time within
desistance; frustrated felony when the ten years, he can be made to suffer the fine.
offender commences the commission of a
felony as a consequence but which would This classification of felony according to
produce the felony as a consequence but gravity is important with respect to the
which nevertheless do not produce the question of prescription of crimes.
felony by reason of causes independent of
the perpetrator; and, consummated felony In the case of light felonies, crimes
when all the elements necessary for its prescribe in two months. After two months,
execution are present. the state loses the right to prosecute unless
the running period is suspended. If the
According to their gravity offender escapes while in detention after he
has been loose, if there was already
Under Article 9, felonies are classified as judgment that was passed, it can be
grave felonies or those to which attaches promulgated even if absent under the New
the capital punishment or penalties which in Rules on Criminal Procedure. If the crime is
any of their periods are afflictive; less grave correctional, it prescribes in ten years,
felonies or those to which the law punishes except arresto mayor, which prescribes in
with penalties which in their maximum five years.
period was correccional; and light felonies
or those infractions of law for the
SUPPLETORY APPLICATION OF THE In the crime of sedition, the use of firearms
REVISED PENAL CODE is not an ingredient of the crime. Hence,
two prosecutions can be had: (1) sedition;
Article 10 is the consequence of the legal and (2) illegal possession of firearms.
requirement that you have to distinguish
those punished under special laws and But do not think that when a crime is
those under the Revised Penal Code. With punished outside of the Revised Penal Code,
regard to Article 10, observe the it is already a special law. For example, the
distinction. crime of cattle-rustling is not a mala
prohibitum but a modification of the crime
In Article 10, there is a reservation theft of large cattle. So Presidential Decree
“provision of the Revised Penal Code may No. 533, punishing cattle-rustling, is not a
be applied suppletorily to special laws”. You special law. It can absorb the crime of
will only apply the provisions of the Revised murder. If in the course of cattle rustling,
Penal Code as a supplement to the special murder was committed, the offender cannot
law, or simply correlate the violated special be prosecuted for murder. Murder would be
law, if needed to avoid an injustice. If no a qualifying circumstance in the crime of
justice would result, do not give suppletorily qualified cattle rustling. Thias was the
application of the Revised Penal Code to ruling in People v. Martinada.
that of special law.
The amendments of Presidential Decree No.
For example, a special law punishes a 6425 (The Dangerous Drugs Act of 1972) by
certain act as a crime. The special law is Republic Act No. 7659, which adopted the
silent as to the civil liability of one who scale of penalties in the Revised Penal Code,
violates the same. Here is a person who means that mitigating and aggravating
violated the special law and he was circumstances can now be considered in
prosecuted. His violation caused damage or imposing penalties. Presidential Decree No.
injury to a private party. May the court 6425 does not expressly prohibit the
pronounce that he is civilly liable to the suppletory application of the Revised Penal
offended party, considering that the special Code. The stages of the commission of
law is silent on this point? Yes, because felonies will also apply since suppletory
Article 100 of the Revised Penal Code may application is now allowed.
be given suppletory application to prevent
an injustice from being done to the offended
party. Article 100 states that every person Circumstances affecting criminal
criminally liable for a felony is also civilly liability
liable. That article shall be applied
suppletory to avoid an injustice that would There are five circumstances affecting
be caused to the private offended party, if criminal liability:
he would not be indemnified for the
damages or injuries sustained by him. Justifying circumstances;

In People v. Rodriguez, it was held that the Exempting circumstances;

use of arms is an element of rebellion, so a
rebel cannot be further prosecuted for Mitigating circumstances;
possession of firearms. A violation of a
special law can never absorb a crime Aggravating circumstances; and
punishable under the Revised Penal Code,
because violations of the Revised Penal Alternative circumstances.
Code are more serious than a violation of a
special law. But a crime in the Revised There are two others which are found
Penal Code can absorb a crime punishable elsewhere in the provisions of the
by a special law if it is a necessary Revised Penal Code:
ingredient of the crime in the Revised Penal
Code. Absolutory cause; and
 Prescription of the crime;
Extenuating circumstances.
Prescription of the penalty; and
In justifying and exempting circumstances,
there is no criminal liability. When an Marriage of the offended woman as
accused invokes them, he in effect admits provided in Article 344.
the commission of a crime but tries to avoid
the liability thereof. The burden is upon him Under Article 247, a legally married person
to establish beyond reasonable doubt the who kills or inflicts physical injuries upon his
required conditions to justify or exempt his or her spouse whom he surprised having
acts from criminal liability. What is shifted sexual intercourse with his or her paramour
is only the burden of evidence, not the or mistress in not criminally liable.
burden of proof.
Under Article 219, discovering secrets
Justifying circumstances contemplate through seizure of correspondence of the
intentional acts and, hence, are ward by their guardian is not penalized.
incompatible with dolo. Exempting
circumstances may be invoked in culpable Under Article 332, in the case of theft,
felonies. swindling and malicious mischief, there is no
criminal liability but only civil liability, when
the offender and the offended party are
Absolutory cause related as spouse, ascendant, descendant,
brother and sister-in-law living together or
The effect of this is to absolve the offender where in case the widowed spouse and the
from criminal liability, although not from property involved is that of the deceased
civil liability. It has the same effect as an spouse, before such property had passed on
exempting circumstance, but you do not call to the possession of third parties.
it as such in order not to confuse it with the
circumstances under Article 12. Under Article 344, in cases of seduction,
abduction, acts of lasciviousness, and rape,
Article 20 provides that the penalties the marriage of the offended party shall
prescribed for accessories shall not be extinguish the criminal action.
imposed upon those who are such with
respect to their spouses, ascendants, Absolutory cause has the effect of an
descendants, legitimate, natural and exempting circumstance and they are
adopted brothers and sisters, or relatives by predicated on lack of voluntariness like
affinity within the same degrees with the instigation. Instigation is associated with
exception of accessories who profited criminal intent. Do not consider culpa in
themselves or assisting the offender to connection with instigation. If the crime is
profit by the effects of the crime. culpable, do not talk of instigation. In
instigation, the crime is committed with
Then, Article 89 provides how criminal dolo. It is confused with entrapment.
liability is extinguished: Entrapment is not an absolutory cause.
Entrapment does not exempt the offender
Death of the convict as to the personal or mitigate his criminal liability. But
penalties, and as to pecuniary penalties, instigation absolves the offender from
liability therefor is extinguished if death criminal liability because in instigation, the
occurs before final judgment; offender simply acts as a tool of the law
enforcers and, therefore, he is acting
Service of the sentence; without criminal intent because without the
instigation, he would not have done the
Amnesty; criminal act which he did upon instigation of
the law enforcers.
Absolute pardon;
Difference between instigation and him the cigarette he was smoking and found
entrapment out that it was loaded with a dangerous
drug. He arrested the fellow. Defense was
In instigation, the criminal plan or design that he would not give a cigarette if he was
exists in the mind of the law enforcer with not asked. Is he criminally liable? Yes. This
whom the person instigated cooperated so it is a case of entrapment and not instigation.
is said that the person instigated is acting Even if the law enforcer did not ask for a
only as a mere instrument or tool of the law cigarette, the offender was already
enforcer in the performance of his duties. committing a crime. The law enforcer
ascertained if it is a violation of the
On the other hand, in entrapment, a Dangerous Drugs Act. The means employed
criminal design is already in the mind of the by the law enforcer did not make the
person entrapped. It did not emanate from accused commit a crime. Entrapment is not
the mind of the law enforcer entrapping an absolutory cause because in entrapment,
him. Entrapment involves only ways and the offender is already committing a crime.
means which are laid down or resorted to
facilitate the apprehension of the culprit. In another instance, a law enforcer
pretended to be a buyer of marijuana. He
approached a person suspected to be a
pusher and prevailed upon this person to
Illustrations: sell him two kilos of dried marijuana leaves
and this fellow gave him and delivered
An agent of the narcotics command had them. He apprehended the fellow. Defense
been tipped off that a certain house is being is instigation, because he would not have
used as an opium den by prominent come out for the marijuana leaves if the law
members of the society. The law enforcers enforcer had not instigated him. It is a case
cannot themselves penetrate the house of entrapment because the fellow is already
because they do not belong to that circle so committing the crime from the mere fact
what they did was to convince a prominent that he is possessing marijuana. Even
member of society to visit such house to without selling, there is a crime committed
find out what is really happening inside and by him: illegal possession of dangerous
that so many cars were congregating there. drugs. How can one sell marijuana if he is
The law enforcers told the undercover man not in possession thereof. The law enforcer
that if he is offered a cigarette, then he is only ascertaining if this fellow is selling
should try it to find out whether it is loaded marijuana leaves, so this is entrapment, not
with dangerous drugs or not. This fellow instigation. Selling is not necessary to
went to the place and mingled there. The commit the crime, mere possession is
time came when he was offered a stick of already a crime.
cigarette and he tried it to see if the
cigarette would affect him. Unfortunately, A fellow wants to make money. He was
the raid was conducted and he was among approached by a law enforcer and was
those prosecuted for violation of the asked if he wanted to deliver a package to a
Dangerous Drugs Act. Is he criminally certain person. When that fellow was
liable? No. He was only there upon delivering the package, he was
instigation of the law enforcers. On his own, apprehended. Is he criminally liable? This
he would not be there. The reason he is is a case of instigation; he is not committing
there is because he cooperated with the law a crime.
enforcers. There is absence of criminal
intent. A policeman suspected a fellow selling
marijuana. The law enforcer asked him, “Are
If the law enforcer were able to enter the you selling that? How much? Could you
house and mingle there, nobody would offer bring that to the other fellow there?” When
him a cigarette because he is unknown. he brought it there, the person, who
When he saw somebody, he pleaded to happens to be a law enforcer, to whom the
spare him a smoke so this fellow handed to package was brought to found it to be
marijuana. Even without bringing, he is
already possessing the marijuana. The fact In case of somnambulism or one who acts
that he was appointed to another person to while sleeping, the person involved is
find out its contents, is to discover whether definitely acting without freedom and
the crime is committed. This is entrapment. without sufficient intelligence, because he is
asleep. He is moving like a robot, unaware
The element which makes instigation an of what he is doing. So the element of
absolutory cause is the lack of criminal voluntariness which is necessary in dolo and
intent as an element of voluntariness. culpa is not present. Somnambulism is an
absolutory cause. If element of
If the instigator is a law enforcer, the person voluntariness is absent, there is no criminal
instigated cannot be criminally liable, liability, although there is civil liability, and if
because it is the law enforcer who planted the circumstance is not among those
that criminal mind in him to commit the enumerated in Article 12, refer to the
crime, without which he would not have circumstance as an absolutory cause.
been a criminal. If the instigator is not a law
enforcer, both will be criminally liable, you Mistake of fact is not absolutory cause. The
cannot have a case of instigation. In offender is acting without criminal intent.
instigation, the private citizen only So in mistake of fact, it is necessary that
cooperates with the law enforcer to a point had the facts been true as the accused
when the private citizen upon instigation of believed them to be, this act is justified. If
the law enforcer incriminates himself. It not, there is criminal liability, because there
would be contrary to public policy to is no mistake of fact anymore. The offender
prosecute a citizen who only cooperated must believe he is performing a lawful act.
with the law enforcer. The private citizen
believes that he is a law enforcer and that is Extenuating circumstances
why when the law enforcer tells him, he
believes that it is a civil duty to cooperate. The effect of this is to mitigate the criminal
liability of the offender. In other words, this
If the person instigated does not know that has the same effect as mitigating
the person is instigating him is a law circumstances, only you do not call it
enforcer or he knows him to be not a law mitigating because this is not found in
enforcer, this is not a case of instigation. Article 13.
This is a case of inducement, both will be
criminally liable. Illustrations:

In entrapment, the person entrapped should An unwed mother killed her child in order to
not know that the person trying to entrap conceal a dishonor. The concealment of
him was a law enforcer. The idea is dishonor is an extenuating circumstance
incompatible with each other because in insofar as the unwed mother or the
entrapment, the person entrapped is maternal grandparents is concerned, but
actually committing a crime. The officer not insofar as the father of the child is
who entrapped him only lays down ways concerned. Mother killing her new born
and means to have evidence of the child to conceal her dishonor, penalty is
commission of the crime, but even without lowered by two degrees. Since there is a
those ways and means, the person material lowering of the penalty or
entrapped is actually engaged in a violation mitigating the penalty, this is an
of the law. extenuating circumstance.

Instigation absolves the person instigated The concealment of honor by mother in the
from criminal liability. This is based on the crime of infanticide is an extenuating
rule that a person cannot be a criminal if his circumstance but not in the case of parricide
mind is not criminal. On the other hand, when the age of the victim is three days old
entrapment is not an absolutory cause. It is and above.
not even mitigating.
In the crime of adultery on the part of a
married woman abandoned by her husband, Since the act complained of is actually
at the time she was abandoned by her wrongful, there is a crime. But because the
husband, is it necessary for her to seek the actor acted without voluntariness, there is
company of another man. Abandonment by absence of dolo or culpa. There is no
the husband does not justify the act of the criminal;
woman. It only extenuates or reduces
criminal liability. When the effect of the Since there is a crime committed but there
circumstance is to lower the penalty there is is no criminal, there is civil liability for the
an extenuating circumstance. wrong done. But there is no criminal
liability. However, in paragraphs 4 and 7 of
A kleptomaniac is one who cannot resist the Article 12, there is neither criminal nor civil
temptation of stealing things which appeal liability.
to his desire. This is not exempting. One
who is a kleptomaniac and who would steal When you apply for justifying or exempting
objects of his desire is criminally liable. But circumstances, it is confession and
he would be given the benefit of a avoidance and burden of proof shifts to the
mitigating circumstance analogous to accused and he can no longer rely on
paragraph 9 of Article 13, that of suffering weakness of prosecution’s evidence
from an illness which diminishes the
exercise of his will power without, however,
depriving him of the consciousness of his Justifying circumstances
act. So this is an extenuating circumstance.
The effect is to mitigate the criminal Since the justifying circumstances are in the
liability. nature of defensive acts, there must be
always unlawful aggression. The
reasonableness of the means employed
Distinctions between justifying depends on the gravity of the aggression. If
circumstances and exempting the unlawful aggressor was killed, this can
circumstances only be justified if it was done to save the
life of the person defending or the person
In justifying circumstances – being defended. The equation is “life was
taken to save life.”
The circumstance affects the act, not the
actor;
Self Defense
The act complained of is considered to have
been done within the bounds of law; hence, In justifying circumstances, the most
it is legitimate and lawful in the eyes of the important is self-defense. When this is
law; given in the bar, it is the element of
unlawful aggression that is in issue. Never
Since the act is considered lawful, there is confuse unlawful aggression with
no crime, and because there is no crime, provocation. Mere provocation is not
there is no criminal; enough.

Since there is no crime or criminal, there is Illustration:

no criminal liability as well as civil liability.
A and B are long standing enemies.
In exempting circumstances – Because of their continuous quarrel over the
boundaries of their adjoining properties,
The circumstances affect the actor, not the when A saw B one afternoon, he approached
act; the latter in a menacing manner with a bolo
The act complained of is actually wrongful, in his hand. When he was about five feet
but the actor acted without voluntariness. away from B, B pulled out a revolver and
He is a mere tool or instrument of the crime; shot A on the chest, killing him. Is B
criminally liable? What crime was equated with one of abuse of chastity of a
committed, if any? woman. In this case, the offended party
placed his hand on the thigh of the woman
The act of A is nothing but a provocation. It who was then praying. There was already
cannot be characterized as an unlawful some sort of aggression but it was not
aggression because in criminal law, an enough to warrant the act resorted to by the
unlawful aggression is an attack or a accused in getting a small knife from her
threatened attack which produces an bag and thrusting it on the chest of the
imminent danger to the life and limb of the offended party.
one resorting to self-defense. In the facts of
the problem given above, what was said Do not confuse unlawful aggression with
was that A was holding a bolo. That bolo provocation. What justifies the killing of a
does not produce any real or imminent supposed unlawful aggressor is that if the
danger unless a raises his arm with the offender did not kill the aggressor, it will be
bolo. As long as that arm of A was down his own life that will be lost. That will be the
holding the bolo, there is no imminent situation. If that is not the situation, even if
danger to the life or limb of B. Therefore, there was an unlawful aggression that has
the act of B in shooting A is not justified. already begun, you cannot invoke self-
defense.
Defense of rights is included in the
circumstances of defense and so is defense Illustration:
of honor.
Two policemen quarreled inside a police
In US v. Mateo, while a woman was precinct. One shot the other. The other
sleeping, her sister and brother-in-law went was wounded on his thigh. The policeman
to see a movie and came home late that who was wounded on the thigh jumped on
evening. The accused was already asleep. the arm of the fellow who shot him. In the
The brother-in-law came up first while his process, they wrestled for possession of the
wife was still in the staircase. He started gun. The policeman who shot the other guy
feeling through the dark, and in the process, fell on the floor. On that point, this
he awakened the accused. Believing that policeman who was shot at the thigh was
her honor was at stake, she got a pair of already able to get hold of the revolver. In
scissors and stabbed the man. When the that position, he started emptying the
lights were turned on, she realized that she revolver of the other policeman who was
had stabbed her brother-in-law. The lying on the floor. In this case, it was held
accused claimed as having acted in defense that the defense of self-defense is no
of her honor and mistake of fact. She said available. The shooting was not justified.
that she believed that her own honor was at
stake. It was held that the whole matter is In People v. Rodriguez, a woman went into
purely her imagination. Touching the arm the house of another woman whom she
could not produce such danger as would suspected of having an affair with her
really be imminent to the honor of the husband. She started pouring gasoline on
woman. the house of the woman. Since the woman
has children inside the house, she jumped
Apparently, under the Revised Penal Code, out to prevent this other woman from
the honor of a woman in respect of her pouring gasoline around the house. The
defense is equated with her virginity. woman who was pouring gasoline had a
bolo, so she started hacking the other
In US v. Jaurigue, it was held that it was not woman with it. They grappled with the bolo.
possible to rape the accused because the At that moment, the one who jumped out of
whole thing transpired in the church, where the house was able to wrest the bolo away
there were so many people. Therefore, her and started hacking the other woman. It
availing of defense of honor is not tenable. was held that the hacking was not justified.
She could not possibly be raped in that Actually, when she killed the supposed
place. Defense of honor here is being unlawful aggressor, her life and limb were
no longer in imminent danger. That is the
focal point. Yes. In law, the condition that a person
making the defense did not act out of
At the time the accused killed the supposed revenge, resentment or evil motive is not a
unlawful aggressor, was her life in danger? requirement in defense of relative. This is
If the answer is no, there is no self-defense. only required in defense of strangers.
But while there may be no justifying
circumstance, do not forget the incomplete
self-defense. This is a mitigating Incomplete self-defense or incomplete
circumstance under paragraph 1 of Article justifying circumstance or incomplete
13. This mitigating circumstance is either exempting circumstances
privileged or ordinary. If ordinary, it has the
effect of reducing the imposable penalty to When you say incomplete justifying
the minimum period. But if it is privileged, circumstance, it means that not all the
it has the effect of lowering the penalty by requisites to justify the act are present or
one to two degrees, depending on how the not the requisites to exempt from criminal
court will regard the absence or presence of liability are present.
conditions to justify the act.
How, if at all, may incomplete self-defense
affect the criminal liability of the offender?
Defense of property rights
If the question specifically refers to
This can only be invoked if the life and limb incomplete self-defense, defense of relative
of the person making the defense is also the or defense of stranger, you have to qualify
subject of unlawful aggression. Life cannot your answer.
be equal to property.
First, to have incomplete self-defense, the
Defense of stranger offended party must be guilty of unlawful
aggression. Without this, there can be no
If the person being defended is already a incomplete self-defense, defense of relative,
second cousin, you do not invoke defense of or defense of stranger.
relative anymore. It will be defense of
stranger. This is vital because if the person Second, if only the element of unlawful
making the defense acted out or revenge, aggression is present, the other requisites
resentment or some evil motive in killing being absent, the offender shall be given
the aggressor, he cannot invoke the only the benefit of an ordinary mitigating
justifying circumstance if the relative circumstance.
defended is already a stranger in the eyes
of the law. On the other hand, if the relative Third, if aside from the element of unlawful
defended is still within the coverage of aggression another requisite, but not all, are
defense of relative, even though he acted present, the offender shall be given the
out of some evil motive, it would still apply. benefit of a privileged mitigating
It is enough that there was unlawful circumstance. In such a case, the
aggression against the relative defended, imposable penalty shall be reduced by one
and that the person defending did not or two degrees depending upon how the
contribute to the unlawful aggression. court regards the importance of the
requisites present. Or absent.

Question & Answer If the question refers generally to justifying

or exempting circumstances, the question
The person being defended was a relative – should be, “how may incomplete justifying
a first cousin. But the fellow who killed the circumstance affect criminal liability of the
aggressor had some score to settle with the offender, if at all?”
aggressor. Is he entitled to a justifying
circumstance?
Make a separate answer with respect to liability, on the principle that “no one should
self-defense, defense of relative or defense enrich himself at the expense of another”.
of stranger because in these cases, you
always have to specify the element of Illustration:
unlawful aggression; otherwise, there would
be no incomplete self-defense, defense of A and B are owners of adjoining lands. A
relative or defense of stranger. In general, owns the land for planting certain crops. B
with respect to other circumstances, you owns the land for raising certain goats. C
need only to say this: used another land for a vegetable garden.
If less than a majority of the requisites There was heavy rain and floods. Dam was
necessary to justify the act or exempt from opened. C drove all the goats of B to the
criminal liability are present, the offender land of A. The goats rushed to the land of A
shall only be entitled to an ordinary to be saved, but the land of A was
mitigating circumstance. destroyed. The author of the act is C, but C
is not civilly liable because he did not
If a majority of the requisites needed to receive benefits. It was B who was
justify the act or exempt from criminal benefited, although he was not the actor.
liability are present, the offender shall be He cannot claim that it was fortuitous event.
given the benefit of a privileged mitigating B will answer only to the extent of the
circumstance. The penalty shall be lowered benefit derived by him. If C who drove all
by one or two degrees. When there are only the goats is accused of malicious mischief,
two conditions to justify the act or to his defense would be that he acted out of a
exempt from criminal liability, the presence state of necessity. He will not be civilly
of one shall be regarded as the majority. liable.
Fulfillment of duty

State of necessity In the justifying circumstance of a person

having acted out of fulfillment of a duty and
The state of necessity must not have been the lawful exercise of a right or office, there
created by the one invoking the justifying are only two conditions:
circumstances. For example, A drove his
car beyond the speed limit so much so that The felony was committed while the
when he reached the curve, his vehicle offender was in the fulfillment of a duty or in
skidded towards a ravine. He swerved his the lawful exercise of a right or office; and
car towards a house, destroying it and
killing the occupant therein. A cannot be The resulting felony is the unavoidable
justified because the state of necessity was consequence of the due fulfillment of the
brought about by his own felonious act. duty or the lawful exercise of the right or
office.
Civil liability referred to in a state of Invariably, when you are given a problem on
necessity is based not on the act committed this premise, and the first condition is
but on the benefit derived from the state of present, but the second is not because the
necessity. So the accused will not be civilly offender acted with culpa, the offender will
liable if he did not receive any benefit out of be entitled to a privelege mitigating
the state of necessity. On the other hand, circumstance. This is what you call
persons who did not participate in the incomplete justification of fulfillment of duty
damage or injury would be pro tanto civilly or incomplete justification of exercise of a
liable if they derived benefit out of the state right. In that case, the penalty would be
of necessity. reduced by one or two degrees.

Civil liability is based on the benefit derived In People v. Oanis and Callanta, the
and not on the act, damage or injury accused Chief of Police and the
caused. It is wrong to treat this as an constabulary soldier were sent out to arrest
exception to the rule that in justifying a certain Balagtas, supposedly a notorious
circumstances, there is no criminal nor civil bandit. There was an order to kill Balagtas
if he would resist. The accused arrived at fired at the fleeing criminal, he cannot be
the house of a dancer who was supposedly made criminally liable. However, this is true
the girlfriend of Balagtas. When they were only if it was the person who stabbed was
there, they saw a certain person who the one killed. But if, let us say, the
resembled Balagtas in all his bodily policeman was stabbed and despite the fact
appearance sleeping on a bamboo bed but that the aggressor ran into a crowd of
facing the other direction. The accused, people, the policeman still fired
without going around the house, started indiscriminately. The policeman would be
firing at the man. They found out later on held criminally liable because he acted with
that the man was not really Balagtas. They imprudence in firing toward several people
tried to invoke the justifying circumstance of where the offender had run. But although
having acted in fulfillment of a duty. he will be criminally liable, he will be given
the benefit of an incomplete fulfillment of
The second requisite is absent because they duty.
acted with negligence. There was nothing
that prevented them from looking around
the house and looking at the face of the Exempting circumstances
fellow who was sleeping. There could not
be any danger on their life and limb. Hence, In exempting circumstances, the reason for
they were held guilty of the crime of murder the exemption lies on the involuntariness of
because the fellow was killed when he was the act – one or some of the ingredients of
sleeping and totally defenseless. However, voluntariness such as criminal intent,
the Supreme Court granted them the intelligence, or freedom of action on the
benefit of incomplete justification of part of the offender is missing. In case it is a
fulfillment of duty and the penalty was culpable felony, there is absence of freedom
reduced by one or two degrees. of action or intelligence, or absence of
negligence, imprudence, lack of foresight or
Do not confuse fulfillment of a duty with lack of skill.
self-defense.

Illustration: Imbecility and insanity

A, a policeman, while waiting for his wife to There is complete absence of intelligence.
go home, was suddenly stabbed at the back Imbecile has an IQ of 7. The intellectual
by B, a hoodlum, who mistook him for deficiency is permanent. There is no lucid
someone else. When A saw B, he drew his interval unlike in insanity.
revolver and went after B. After firing a
shot in the air, B did not stop so A shot B The insanity that is exempting is limited
who was hit at a vital part of the body. B only to mental aberration or disease of the
died. Is the act of A justified? mind and must completely impair the
intelligence of the accused. Under common
Yes. The justifying circumstance of self- law countries, emotional or spiritual insanity
defense cannot be invoked because the are exempting circumstances unlike in this
unlawful aggression had already ceased by jurisdiction because the Revised
the time A shot B. When the unlawful Administrative Code, as defined is limited to
aggressor started fleeing, the unlawful mental aberration of the mind. This was the
aggression ceased. If the person attacked ruling in People v. Dungo.
runs after him, in the eyes of the law, he
becomes the unlawful aggressor. Self- In People v. Rafanan, decided on November
defense cannot be invoked. You apply 21, 1991, the following are the two tests
paragraph 5 on fulfillment of duty. The for exemption on grounds of insanity:
offender was not only defending himself but
was acting in fulfillment of a duty, to bring (1) The test of cognition, or whether the
the criminal to the authorities. As long as accused acted with complete deprivation of
he was not acting out of malice when he intelligence in committing said crime; and
 How does the minority of the offender
(2) The test of volition, or whether the affect his criminal liability?
accused acted in total deprivation of (1) If the offender is within the bracket
freedom of will. of nine years old exactly or less, he is
exempt from criminal liability but not from
Schizoprenia (dementia praecox) can civil liability. This type of offenders are
only be considered a mitigating absolutely exempt. Even if the offender
circumstance because it does not nine years or below acted with discernment,
completely deprive the offender of this should not be taken against him
consciousness of his acts. because in this age bracket, the exemption
is absolute.

Minority (2) If over nine but below 15, a

distinction has to be made whether the
In exempting circumstances, the most offender acted with or without discernment.
important issue is how the minority of the The burden is upon the prosecution to prove
offender affected his criminal liability. It that the offender acted with discernment. It
seems that the view of many is that when is not for the minor to prove that he acted
the offender is a youthful offender, he must without discernment. All that the minor has
necessarily be confined in a reformatory. to show is that he is within the age bracket.
This is wrong. A youthful offender can only If the prosecution would want to pin criminal
be confined in a reformatory upon order of liability on him, it has to prove that the
the court. Under the amendment to crime was committed with discernment.
Presidential Decree No. 603, Presidential Here, if the offender was exempt from
Decree No. 1179 requires that before a criminal liability because the prosecution
youthful offender may be given the benefit was not able to prove that the offender
if a suspension of sentence, there must be acted with discernment, he is only civilly
an application filed with the court which liable but he will be committed to the
should pronounce sentence. Note that the surveillance of his parents who will be
commitment of the offender in a required to report to the court periodically
reformatory is just a consequence of the on the progress or development of the
suspension of the sentence. If the sentence offender.
is not suspended, there is no commitment in
a reformatory. The commitment is in a If the offender is proven to have acted with
penitentiary, since suspension of sentence discernment, this is where the court may
requires certain conditions: give him the benefit of a suspended
sentence. He may be given the benefit of a
The crime committed should not be suspended sentence under the conditions
punishable by reclusion perpetua or death mentioned earlier and only if he would file
penalty; an application therefor.

The offender should not have been given Suspension of sentence is not automatic. If
the benefit of a suspended sentence before. the youthful offender has filed an
This means he is a first timer; application therefor.

He must be below 18 years old because a (3) If at the time the judgment is to be
youthful offender is one who is below 18. promulgated he is already above 18, he
cannot avail of a suspended sentence. The
Note that the age of majority has been reason is because if the sentence were to be
reduced to 18. There is no more bracket suspended, he would be committed in a
where the offender is a minor yet no longer reformatory. Since he cannot be committed
entitled to a mitigating circumstance. An to a reformatory anymore because he is not
offender below 18 is always entitled to a less than 18 years old, he would have to be
mitigating or exempting circumstance. committed to a penitentiary. That means
promulgation of the sentence shall not be
suspended. If the sentence should not be criminal liability. The driver is not under
suspended, although the minor may be obligation to defray the medical expenses.
qualified, the court will promulgate the
sentence but the minor shall be entitled to However, correlate paragraph 4 of Article 12
the reduction of the penalty by at least two with the second paragraph of Article 275.
degrees. Article 275 gives you the crime of
abandoning the victim of one’s own
When the offender is over nine but below accident. It is a crime. Here, the accident
15, the penalty to be imposed is referred to in paragraph 2 of Article 275 is in
discretionary on the court, but lowered by at the concept of paragraph 4 of Article 12.
least two degrees. It may be lowered by This means that the offender must be
three or four degrees, depending upon performing a lawful act, that he was doing it
whether the court deems best for the with due care but somehow, injury resulted
interest of the offender. The limitation that by mere accident without fault or intention
it should be lowered by at least two degrees of causing it.
is just a limitation on the power of the court
to reduce the penalty. It cannot be less If at the very beginning, the offender was
than two degrees. negligent, you do not apply Article 275,
paragraph 2. Instead, it will be Article 365
(4) If the offender is 15 years old and on criminal negligence. Notice that in the
above but below 18, there is no exemption last paragraph of Article 365, in the case of
anymore but he is also given the benefit of the so-called hit and run drivers who have
a suspended sentence under the conditions injured somebody and would abandon the
stated earlier and if at the time the victim of the accident, the penalty is
sentence is promulgated, he is not 18 years qualified to a higher degree. Here, under
old or over yet. If the sentence is paragraph 4 of Article 12, the infliction of
promulgated, the court will impose a the injury by mere accident does not give
penalty one degree lower. This time it is rise to a criminal or civil liability, but the
fixed. It is to be imposed one degree lower person who caused the injury is duty bound
and in the proper periods subject to the to attend to the person who was injured. If
rules in Article 64. he would abandon him, it is in that
abandonment that the crime arises which is
punished under the second paragraph of
Damnum absque injuria Article 275.

Under Article 12, paragraph 4, the offender

is exempt not only from criminal but also Compulsion of irresistible force and under
from civil liability. This paragraph embodies the impulse of an uncontrollable fear
the Latin maxim “damnum absque injuria”.
The offender must be totally deprived of
Illustration: freedom. If the offender has still freedom of
choice, whether to act or not, even if force
A person who is driving his car within the was employed on him or even if he is
speed limit, while considering the condition suffering from uncontrollable fear, he is not
of the traffic and the pedestrians at that exempt from criminal liability because he is
time, tripped on a stone with one of his car still possessed with voluntariness. In
tires. The stone flew hitting a pedestrian on exempting circumstances, the offender
the head. The pedestrian suffered profuse must act without voluntariness.
bleeding. What is the liability of the driver?
In a situation where the offender would
There is no civil liability under paragraph 4 otherwise be exempt, but the requisites for
of Article 12. Although, this is just an exemption are not all present, the offender
exempting circumstance, where generally is still entitled to a mitigating circumstance
there is civil liability, yet, in paragraph 4 of of incomplete exemption under paragraph
Article 12, there is no civil liability as well as 1 of Article 13. Apply the rule if majority of
the requisites to exempt from criminal paragraph 1, where it is privilege, Article 69
liability are present. The offender shall be would apply. So also, paragraph 2, in cases
given the benefit of privelege mitigating where the offender is below 18 years old,
circumstances. That means that the penalty such an offender if criminally liable is
prescribed of the crime committed shall be entitled to the lowering of penalty by one
reduced by one or two degrees in degree. But if over nine but under 15, he is
accordance with Article 69 of the Revised entitled to a discretionary penalty of at least
Penal Code. If less than a majority of the two degrees lower. When there is a
requisites for exemption are present, the lowering of penalties by degrees, it is a
offender shall be given only the benefit of privilege. It cannot be offset by an
ordinary mitigating circumstances. That aggravating circumstance.
means the penalty shall be reduced to the
minimum period of the prescribed penalty, Although the bulk of the circumstances in
unless the mitigating circumstance is offset Article 13 are ordinary mitigating
by an aggravating circumstance. circumstances, yet, when the crime
committed is punishable by a divisible
penalty, two or more of this ordinary
Mitigating circumstances mitigating circumstances shall have the
effect of a privilege mitigating
Distinctions between ordinary mitigating circumstances if there is no aggravating
circumstances and privileged mitigating circumstance at all.
circumstances
Correlate Article 13 with Articles 63 and 64.
As to the nature of the circumstances Article 13 is meaningless without knowing
the rules of imposing the penalties under
Ordinary mitigating circumstances can be Articles 63 and 64.
offset by aggravating circumstances.
In bar problems, when you are given
Privilege mitigating circumstance can never indeterminate sentences, these articles are
be offset by any aggravating circumstance. very important.

(2) As to effect When the circumstance which mitigates

criminal liability is privileged, you give effect
Ordinary mitigating circumstances, if not to it above all considerations. In other
offset, will operate to reduce the penalty to words, before you go into any circumstance,
the minimum period, provided the penalty is lower first the penalty to the proper degree.
a divisible one. That is precisely why this circumstance is
considered privileged. It takes preference
Privilege mitigating circumstances operate over all other circumstances.
to reduce the penalty by one or two
degrees, depending upon what the law Question & Answer
provides.
A 17 year old boy committed parricide. Will
You can easily detect whether the he be given the benefit of Indeterminate
circumstance which mitigates the liability of Sentence Law? Then, the facts state,
the offender is privilege or not, that is, if the penalty for parricide is reclusion perpetua to
penalty is reduced by degree. If the penalty death.
is lowered by one or two degrees, it is
privilege; therefore, even if there is an You have learned that the Indeterminate
aggravating circumstance, do not Sentence Law does not apply, among other
compensate because that would be violating situations, when the penalty imposed is
the rules. death or life imprisonment. But then in the
problem given, the offender is a 17-year old
The circumstances under Article 13 are boy. That circumstance is privileged. So
generally ordinary mitigating, except in before you go in the Indeterminate
Sentence Law, you have to apply that
circumstance first. Being a 17-year old boy, The common circumstance given in the bar
therefore, the penalty would go one degree of praeter intentionem, under paragraph 3,
lower and the penalty for parricide which means that there must be a notable
now stands at reclusion perpetua will go disproportion between the means employed
down to reclusion temporal. Reclusion by the offender compared to that of the
temporal is already governed by the resulting felony. If the resulting felony could
Indeterminate Sentence Law. be expected from the means employed, this
circumstance does not avail. This
The answer, therefore, is yes. He shall be circumstance does not apply when the
given the benefit of the Indeterminate crime results from criminal negligence or
Sentence Law. Although the penalty culpa. When the crime is the product of
prescribed for the crime committed is reckless imprudence or simple negligence,
reclusion perpetua, that is not the mitigating circumstances does not apply.
imposable penalty, since being 17 years old This is one of the three instances where the
is a privilege mitigating circumstance. That offender has performed a felony different
privilege lowers the penalty by one degree. from that which he intended. Therefore,
The imposable penalty, therefore, is this is the product of intentional felony, not
reclusion temporal. The Indeterminate a culpable one.
Sentence Law applies to this and so the
offender will be given its benefit.
Sufficient threat or provocation
Criminal laws are to be construed always in
a manner liberal or lenient to the offender. This is mitigating only if the crime was
Between giving the offender the benefit of committed on the very person who made
the Indeterminate Sentence Law and the threat or provocation. The common set-
withholding it away from him, there is more up given in a bar problem is that of
reason to give him its benefit. It is wrong provocation was given by somebody. The
for you to determine whether the person provoked cannot retaliate against
Indeterminate Sentence Law will apply or him; thus, the person provoked retaliated on
not on the basis of reclusion perpetua a younger brother or on an elder father.
because that is not the imposable penalty. Although in fact, there is sufficient
The moment you do that, you disregard the provocation, it is not mitigating because the
privileged character of minority. You are one who gives the provocation is not the
only treating it as an ordinary mitigating one against whom the crime was
circumstance. Privilege mitigating committed.
circumstance will apply over and above all
other considerations. When you arrive at
the correct penalty, that is the time when Question & Answer
you find out whether the Indeterminate
Sentence Law will apply or not. A was walking in front of the house of B. B
at that time was with his brother C. C told B
For purposes of lowering the penalty by one that sometime in the past, A boxed him, and
or two degrees, the age of the offender at because he was small, he did not fight back.
the time of the commission of the crime B approached A and boxed him, but A
shall be the basis, not the age of the cannot hit back at B because B is bigger, so
offender at the time the sentence is to be A boxed C. Can A invoke sufficient
imposed. But for purposes of suspension of provocation to mitigate criminal liability?
the sentence, the age of the offender at the
time the crime was committed is not No. Sufficient provocation must come from
considered, it is the age of the offender at the offended party. There may actually be
the time the sentence is to be promulgated. sufficient provocation which immediately
preceded the act, but if provocation did not
come from the person offended, paragraph
Praeter intentionem 4, Article 13 will not apply.
 outrage emitted by the offended party as a
provocation upon the accused was still
The commission of the felony must be present when he committed the crime and,
immediate to the threat or provocation in therefore, the reason for paragraph 4 still
order that this circumstance be mitigating. applies. The accused was still acting under
If there is sufficient break of time before the a diminished self control because he was
provocation or threat and the consequent thinking of the humiliation he suffered in the
commission of the crime, the law hands of the offended party. The outrage
presupposes that during that interval, was so serious unless vindicated.
whatever anger or diminished self control
may have emerged from the offender had This is the correct interpretation of
already vanished or disappeared. In paragraph 4, Article 13. As long as the
applying this mitigating circumstance, the offender at the time he committed the
courts are generally considering that there felony was still under the influence of the
must be no break between the provocation outrage caused by the provocation or
or threat and the commission of the felony. threat, he is acting under a diminished self
In other words, the felony was committed control. This is the reason why it is
precisely because he was then and there mitigating.
provoked.
You have to look at two criteria:
However, the recent rulings of the Supreme
Court, as well as the Court of Appeals, has If from the element of time, there is a
stretched this criterion – it is not only a material lapse of time stated in the problem
matter of time anymore. Before, there was a and there is nothing stated in the problem
ruling that if a period of one hour had lapsed that the effect of the threat or provocation
between the provocation and the had prolonged and affected the offender at
commission of the felony, this mitigating the time he committed the crime, then you
circumstance is no longer applicable. use the criterion based on the time element.

Illustration: (2) However, if there is that time

element and at the same time, facts are
The accused went to a barrio dance. In that given indicating that at the time the
gathering, there was a bully and he told the offender committed the crime, he is still
accused that he is not allowed to go inside. suffering from outrage of the threat or
The accused tried to reason out but the provocation done to him, then he will still
bully slapped him several times in front of get the benefit of this mitigating
so many people, some of whom were ladies circumstance.
who were being courted by the accused, so
he was humiliated and embarrassed. In People v. Diokno, a Chinaman eloped with
However, he cannot fight the bully at that a woman. Actually, it was almost three days
time because the latter was much bigger before accused was able to locate the house
and heavier. Accused had no choice but to where the Chinaman brought the woman.
go home. When he saw the bully again, this Here, sufficient provocation was one of the
time, he was armed with a knife and he mitigating circumstances considered by the
stabbed the bully to death. The evidence Supreme Court in favor of the accused.
for the accused showed that when he went
home, he was not able to sleep throughout
the night, thinking of the humiliation and Vindication of a grave offense
outrage done to him, despite the lapse of
about 22 hours. The Supreme Court gave The word “offense” should not be taken as a
him the benefit of this mitigating crime. It is enough if what was imputed or
circumstance. The reason stated by the what was done was wrong. In considering
Supreme Court for allowing the accused to whether the wrong is a grave one upon the
be benefited by this mitigating circumstance person who committed the crime, his age,
is that the effect of the humiliation and
education and social status will be If the case involves a series of facts, then
considered. you can predicate any one of these
circumstances on one fact and the other on
Here, in vindication of a grave offense, the another fact and so on.
vindication need not be done by the person
upon whom the grave offense was The passion must be legitimate. As a rule, it
committed. So, unlike in sufficient threat or cannot be based on common law
provocation where the crime should be relationship because common law
inflicted upon the very person who made relationships are illicit. However, consider
the threat or provocation, here, it need not whether passion or obfuscation is generated
be the same person who committed the by common law relationship or by some
grave offense or who was offended by the other human consideration.
wrong done by the offended party.
In a case where the relationship between
The word “immediate” here does not carry the accused and the woman he was living
the same meaning as that under paragraph with was one of common law, he came
4. The word “immediate” here is an home and surprised his common law wife
erroneous Spanish translation because the having sexual intercourse with a friend. This
Spanish word is “proxima” and not infuriated him. He killed the friend and he
“immediatementa.” Therefore, it is enough claimed passion or obfuscation. The trial
that the offender committed the crime with court denied his claim because the
the grave offense done to him, his spouse, relationship was a common law one.
his ascendant or descendant or to his
brother or sister, whether natural, adopted On review, the accused was given the
or legitimate and that is the proximate benefit of the circumstances and the basis
cause of the commission of the crime. of considering passion or obfuscation in
favor of the accused was the act of the
common law wife in committing adultery
Passion or obfuscation right from the conjugal bed. Whether or not
they are married, any man who discovers
This stands on the premise or proposition that infidelity was committed on the very
that the offender is suffering from a bed provided by him to the woman would
diminished self control because of the naturally be subjected to obfuscation.
passion or obfuscation. The same is true
with the circumstances under paragraphs 4 When a married person surprised his better
and 5. So, there is a ruling to the effect that half in the act of sexual intercourse with
if the offender is given the benefit of another, he gets the benefit of Article 247.
paragraph 4, he cannot be given the benefit However, that requisite which in the first
of paragraph 5 or 6, or vice-versa. Only one place, the offender must have surprised
of the three mitigating circumstances his/her spouse actually committing sexual
should be given in favor of the offender. intercourse should be present. If the
surprising was done not in the actual act of
However, in one case, one of the mitigating sexual intercourse but before or after it,
circumstances under paragraphs 4, 5 and 6 then Article 247 does not apply.
stands or arises from a set of facts, and
another mitigating circumstance arises from Although this is the ruling, still, the accused
another set of facts. Since they are will be given the benefit of sufficient
predicated on different set of facts, they provocation if the intercourse was done in
may be appreciated together, although they his dwelling. If this act was done
arose from one and the same case. Hence, somewhere else and the accused kills the
the prohibition against considering all these paramour or the spouse, this may be
mitigating circumstances together and not considered as mitigation of a grave offense
as one applies only if they would be taken to him or otherwise as a situation sufficient
on the basis of the same set of facts. to create passion or obfuscation. Therefore,
when a married man upon coming home,
surprises his wife who was nude and lying As a general rule, if after committing the
with another man who was also nude, crime, the offender did not flee and he went
Article 247 does not apply. If he kills them, with the responding law enforcers meekly,
vindication of a grave offense will be voluntary surrender is not applicable.
mitigating in favor of the offender.
However, there is a ruling that if after
Illustrations: committing the crime, the offender did not
flee and instead waited for the law enforcers
A is courting B, a receptionist in a to arrive and he surrendered the weapon he
beerhouse. C danced with B. A saw this and used in killing the victim, the ruling was that
stabbed C. It was held that jealousy is an voluntary surrender is mitigating. In this
acknowledged basis of passion. case, the offender had the opportunity to go
into hiding, the fact that he did not flee is
A, a male classmate is escorting B, a female not voluntary surrender.
classmate. On the way out, some men
whistled lustfully. The male classmate However, if he comes out from hiding
stabbed said men. This was held to be because he is seriously ill and he went to
obfuscation. get medical treatment, the surrender is not
considered as indicative of remorse or
When a man saw a woman bathing, almost repentance. The surrender here is only done
naked, for which reason he raped her, such out of convenience to save his own self.
man cannot claim passion as a mitigating Hence, it is not mitigating.
circumstance. Even if the offender may have gone into
hiding, if the law enforcers had already
A man and a woman were living together known where he is hiding and it is just a
for 15 years. The man left the village where matter of time before he is flushed out of
they were living and never returned home. that place, then even if the law enforcers do
The common law wife learned that he was not know exactly where he was hiding and
getting married to a classmate. On the he would come out, this is not voluntary
scheduled wedding day, she stabbed the surrender.
groom in the chest, instantly killing him.
She confessed and explained that any Whether or not a warrant of arrest had been
woman cannot tolerate what he did to her. issued against the offender is immaterial
She gave him the best years of her life. She and irrelevant. The criterion is whether or
practically waited for him day and night. It not the offender had gone into hiding or had
was held that passion and obfuscation were the opportunity to go into hiding and the law
considered mitigating. Ingratitude was enforcers do not know of his whereabouts.
shown here. If he would give up, his act of surrendering
under such circumstance indicates that he is
willing to accept the consequences of the
Voluntary surrender wrong he has done and also thereby saves
the government the effort, the time and the
The essence of voluntary surrender requires expenses to be incurred in looking for him.
that the offender, after having committed
the crime, had evaded the law enforcers Where the offender went to the municipal
and the law enforcers do not know of his building not to own responsibility for the
whereabouts. In short, he continues to elude killing, such fact is not tantamount to
arrest. If, under this circumstance, the voluntary surrender as a mitigating
offender would come out in the open and he circumstance. Although he admitted his
gives himself up, his act of doing so will be participation in the killing, he tried to avoid
considered as indicative of repentance and responsibility by claiming self-defense which
he also saves the government the time and however he was not able to prove. People v.
the expense of looking for him. Mindac, decided December 14, 1992.
Surrender to be considered voluntary and authorities to the place where he disposed
thus mitigating, must be spontaneous, of the loot has been considered as
demonstrating an intent to submit himself analogous or equivalent to voluntary
unconditionally to the person in authority or surrender.
his agent in authority, because (1) he
acknowledges his guilt (2) he wishes to save Stealing by a person who is driven to do so
the government the trouble and expenses of out of extreme poverty is considered as
searching and capturing him. Where the analogous to incomplete state of necessity.
reason for the surrender of the accused was However, this is not so where the offender
to insure his safety, his arrest by policemen became impoverished because of his own
pursuing him being inevitable, the surrender way of living his life. If his lifestyle is one of
is not spontaneous. having so many vices, as a result of which
he became poor, his subsequent stealing
because of his poverty will not be
Physical defect considered mitigated by incomplete state of
necessity.
The physical defect that a person may have
must have a relation to the commission of
the crime. In a case where the offender is Aggravating circumstances
deaf and dumb, personal property was
entrusted to him and he misappropriated Kinds of aggravating circumstances:
the same. The crime committed was estafa.
The fact that he was deaf and dumb is not Generic or those that can generally apply
mitigating because that does not bear any to all crime;
relation to the crime committed.
Specific or those that apply only to a
Not any physical defect will affect the crime. particular crime;
It will only do so if it has some relation to
the crime committed. If a person is deaf Qualifying or those that change the nature
and dumb and he has been slandered, he of the crime;
cannot talk so what he did was, he got a
piece of wood and struck the fellow on the Inherent or those that must of necessity
head. The crime committed was physical accompany the commission of the crime.
injuries. The Supreme Court held that being
a deaf and dumb is mitigating because the The aggravating circumstances must be
only way is to use his force because he established with moral certainty, with the
cannot strike back. same degree of proof required to establish
the crime itself.
If the offender is blind in one eye, as long as
his means of action, defense or Most important of the classification of
communication with others are not aggravating circumstances are the
restricted, such circumstance is not qualifying and the generic aggravating
mitigating. This circumstance must also circumstances.
have a bearing on the crime committed and
must depend on how the crime was In practice, the so-called generic
committed. aggravating circumstances are referred to
simply as aggravating circumstances. The
so-called qualifying aggravating
Analogous cases circumstances are simply referred to as
qualifying circumstances. This is so because
The act of the offender of leading the law there is no qualifying circumstance that is
enforcers to the place where he buried the not aggravating. To say qualifying
instrument of the crime has been aggravating circumstance is redundant. In
considered as equivalent to voluntary the examination, if you find qualifying
surrender. The act of a thief in leading the circumstances, you have to think about
these as aggravating circumstances which treachery, evident premeditation and act
are the ingredients of the crime. was done in consideration of a price, reward
or promise were alleged as aggravating.
Distinctions between aggravating and Only one of these is qualifying. If any one of
qualifying circumstances: the three circumstances was proven, the
crime was already murder. If the other two
In aggravating circumstances – are also proven, even if they are alleged in
the information or complaint, they are only
The circumstance can be offset by an to be taken as generic. If there is any
ordinary mitigating circumstance; mitigating circumstance in favor of the
offender, the two other circumstances which
No need to allege this circumstance in the are otherwise qualifying could be offset by
information, as long as it is proven during the mitigating, provided the mitigating
trial. If it is proved during trial, the court circumstance is not a privileged mitigating
would consider the same in imposing the circumstance. Therefore, if there are three
penalty; of the qualifying circumstances alleged in
the complaint or information, only one will
It is not an ingredient of a crime. It only qualify the crime. The others will merely be
affects the penalty to be imposed but the considered as generic. Thus, if there is any
crime remains the same. ordinary mitigating circumstance in favor of
the accused, such will be wiped out by these
In qualifying circumstance – circumstances, although initially they are
considered as qualifying. Do not hesitate to
The circumstance affects the nature of the offset on the principle that a qualifying
crime itself such that the offender shall be circumstance cannot be offset by an
liable for a more serious crime. The ordinary mitigating circumstance because
circumstance is actually an ingredient of the only one is necessary.
crime;
Even if any of the qualifying circumstances
Being an ingredient of the crime, it cannot under Article 248 on murder was proven, if
be offset by any mitigating circumstance; that is not the circumstance alleged in the
information, it cannot qualify the crime. Let
Qualifying circumstances to be appreciated us say, what was alleged in the information
as such must be specifically alleged in the was treachery. During the trial, what was
complaint or information. If not alleged but proven was the price, reward or promise as
proven during the trial, it will be considered a consideration for killing. The treachery
only as generic aggravating circumstance. If was not proved. Just the same, the accused
this happens, they are susceptible of being cannot be convicted of murder because the
offset by a mitigating circumstance. circumstance proven is not qualifying but
merely generic. It is generic because it is
An aggravating circumstance is qualifying not alleged in the information at all. If any
when it is an ingredient of the crime. of these qualifying circumstances is not
Therefore it is included in the provision of alleged in the information, it cannot be
law defining the crime. If it is not so considered qualifying because a qualifying
included, it is not qualifying. is an ingredient of the crime and it cannot
be taken as such without having alleged in
In Article 248, in the crime of murder, the the information because it will violate the
law specifically mentions thereunder several right of the accused to be informed of the
circumstances which are aggravating under nature of the accusation against him.
Article 14. All of these will qualify a killing
from homicide to murder; however, you Correlate Article 14 with Article 62. Article
understand that only one is qualifying. 62 gives you the different rules regarding
aggravating circumstances. Aggravating
If let us say, the accused was charged with circumstances will not be considered when
murder. Three of these circumstances: it is the crime itself. If the crime charged is
qualified trespass to dwelling, dwelling is no Teachers, professors, supervisors of public
longer aggravating. When the aggravating and duly recognized private schools,
circumstance refers to the material colleges and universities, as well as lawyers
execution of the crime, like treachery, it will are persons in authority only for purposes of
only aggravate the criminal liability of those direct assault and simple resistance, but not
who employed the same. for purposes of aggravating circumstances
in paragraph 2, Article 14. (People v. Taoan,
Illustration: 182 SCRA 601).

A person induced another to kill somebody.

That fellow killed the other guy and Abuse of confidence
employed treachery. As far as the killing is
concerned, the treachery will qualify only Do not confuse this with mere betrayal of
the criminal liability of the actual trust. This is aggravating only when the
executioner. The fellow who induced him very offended party is the one who reposed
becomes a co-principal and therefore, he is the confidence. If the confidence is reposed
liable for the same crime committed. by another, the offended party is different
However, let us say, the fellow was hired to from the fellow who reposed the confidence
kill the parent of the one who hired him. He and abuse of confidence in this case is not
killed a stranger and not the parent. What aggravating.
was committed is different from what was
agreed upon. The fellow who hired him will Illustrations:
not be liable for the crime he had done
because that was not the crime he was A mother left her young daughter with the
hired to commit. accused because she had nobody to leave
the child with while she had to go on an
errand. The accused abused the child. It
Taking advantage of public position was held that the abuse of confidence is not
aggravating. What is present is betrayal of
Article 62 was also amended by the trust and that is not aggravating.
Republic Act No. 7659. The legal import of
this amendment is that the subject In a case where the offender is a servant,
circumstance has been made a qualifying or the offended party is one of the members of
special aggravating that shall not be offset the family. The servant poisoned the child.
or compensated by a mitigating It was held that abuse of confidence is
circumstance. If not alleged in the aggravating. This is only true however, if the
information, however, but proven during the servant was still in the service of the family
trial, it is only appreciated as a generic when he did the killing. If he was driven by
aggravating circumstance. the master already out of the house for
some time and he came back and poisoned
The mitigating circumstance referred to in the child, abuse of confidence is no longer
the amendment as not affecting the aggravating. The reason is because that
imposition of the penalty in the maximum confidence has already been terminated
are only ordinary mitigating circumstances. when the offender was driven out of the
Privileged mitigating circumstances always house.
lower the penalty accordingly.

Disrespect due to rank, age, sex Dwelling

Aggravating only in crimes against persons Dwelling will only be aggravating if it is the
and honor, not against property like dwelling of the offended party. It should also
Robbery with homicide (People v. Ga, 156 not be the dwelling of the offender. If the
SCRA 790). dwelling is both that of the offended party
and the offender, dwelling is not A man was killed in the house of his
aggravating. common law wife. Dwelling is aggravating in
this case because the house was provided
Dwelling need not be owned by the by the man.
offended party. It is enough that he used
the place for his peace of mind, rest, Dwelling should not be understood in the
comfort and privacy. The rule that dwelling, concept of a domicile. A person has more
in order to be aggravating must be owned than one dwelling. So, if a man has so many
by the offended party is no longer absolute. wives and he gave them a places of their
Dwelling can be aggravating even if it is not own, each one is his own dwelling. If he is
owned by the offended party, provided that killed there, dwelling will be aggravating,
the offended party is considered a member provided that he also stays there once in a
of the family who owns the dwelling and while. When he is only a visitor there,
equally enjoys peace of mind, privacy and dwelling is not aggravating.
comfort.
The crime of adultery was committed.
Illustration: Dwelling was considered aggravating on the
part of the paramour. The paramour is not a
Husband and wife quarreled. Husband resident of the same dwelling. However, if
inflicted physical violence upon the wife. the paramour was also residing on the same
The wife left the conjugal home and went to dwelling, dwelling is not considered
the house of her sister bringing her personal aggravating.
belongings with her. The sister
accommodated the wife in the formers The term “dwelling” includes all the
home. The husband went to the house of dependencies necessary for a house or for
the sister-in-law and tried to persuade the rest or for comfort or a place of privacy. If
wife to come back to the conjugal home but the place used is on the second floor, the
the wife refused because she is more at stairs which are used to reach the second
peace in her sister's house than in the floor is considered a dwelling because the
conjugal abode. Due to the wife's refusal to second floor cannot be enjoyed without the
go back to the conjugal home and live with stairs. If the offended party was assaulted
the husband, the husband pulled out a knife while on the stairs, dwelling is already
and stabbed the wife which caused her aggravating. For this reason, considering
death. It was held that dwelling was that any dependency necessary for the
aggravating although it is not owned by the enjoyment of a place of abode is considered
offended party because the offended party a dwelling.
is considered as a member of the family
who owns the dwelling and that dwelling is Illustrations:
where she enjoyed privacy. Peace of mind
and comfort. A and B are living in one house. A occupies
the ground floor while B the upper floor. The
Even a room in a hotel if rented as a stairs here would form part only of B's
dwelling, like what the salesmen do when dwelling, the same being necessary and an
they are assigned in the provinces and they integral part of his house or dwelling.
rent rooms, is considered a dwelling. A Hence, when an attack is made while A is on
room in a hotel or motel will be considered the stairs, the aggravating circumstance of
dwelling if it is used with a certain degree of dwelling is not present. If the attack is made
permanence, where the offended party while B was on the stairs, then the
seeks privacy, rest, peace of mind and aggravating circumstance of dwelling is
comfort. present.

If a young man brought a woman in a motel Whenever one is in his dwelling, the law is
for a short time and there he was killed, presuming that he is not intending to
dwelling is not aggravating. commit a wrong so one who attacks him
while in the tranquility of his home shows a
degree of perversity in him. Hence, this separate entrance to the portion used for
aggravating circumstance. dwelling, the circumstance is aggravating.
However, in case the store is closed,
Dwelling is not limited to the house proper. dwelling is aggravating since here, the store
All the appurtenances necessary for the is not a public place as in the first case.
peace and comfort, rest and peace of mind
in the abode of the offended party is Balcony is part of the dwelling because it is
considered a dwelling. appurtenant to the house

Illustrations: Dwelling is aggravating in robbery with

homicide because the crime can be
A man was fixing something on the roof of committed without necessarily
his house when he was shot. It was held transgressing the sanctity of the home
that dwelling is aggravating. Roof still part (People v. De Los Reyes, decided October
of the house. 22, 1992).

In the provinces where the comfort rooms Dwelling is aggravating where the place is,
are usually far from the house proper, if the even for a brief moment, a “home”,
offended party while answering the call of although he is not the owner thereof as
nature is killed, then dwelling is aggravating when victim was shot in the house of his
because the comfort room is a necessary parents.
dependency of the house proper.

A person while in the room of his house, Band

maintaining the room, was shot. Dwelling is
aggravating. In band, there should at least be four
If the offender entered the house and the persons. All of them should be armed. Even
offended party jumped out of the house, if there are four, but only three or less are
even if the offender caught up with him armed, it is not a band. Whenever you talk
already out of the house, dwelling is still of band, always have in mind four at least.
aggravating. The reason is because he could Do not say three or more because it is four
not have left his dwelling were it not for the or more. The way the law defines a band is
fact that the attacker entered the house. somewhat confusing because it refers
simply to more than 3, when actually it
If the offended party was inside the house should be 4 or more.
and the offender was outside and the latter
shot the former inside the house while he Correlate this with Article 306 - Brigandage.
was still outside. Dwelling is still The crime is the band itself. The mere
aggravating even if the offender did not forming of a band even without the
enter the house. commission of a crime is already a crime so
that band is not aggravating in brigandage
A garage is part of the dwelling when because the band itself is the way to
connected with an interior passage to the commit brigandage.
house proper. If not connected, it is not
considered part of the dwelling. However, where brigandage is actually
committed, band becomes aggravating.
One-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 Uninhabited place
is attacked, dwelling is not aggravating It is determined not by the distance of the
because whenever a store is open for nearest house to the scene of the crime but
business, it is a public place and as such is whether or not in the place of the
not capable of being the subject of trespass. commission of the offense , there was a
If the dwelling portion is attacked where reasonable possibility of the victim receiving
even if the store is open, there is another some help.
 advantage of nighttime to facilitate the
Illustration: commission of the offense.

A is on board a banca, not so far away. B Nocturnity is the period of time after
and C also are on board on their respective sunset to sunrise, from dusk to dawn.
bancas. Suddenly, D showed up from
underwater and stabbed B. Is there an
aggravating circumstance of uninhabited Different forms of repetition or
place here? Yes, considering the fact that A habituality of the offender
and C before being able to give assistance
still have to jump into the water and swim Recidivism under Article 14 (9) – The
towards B and the time it would take them offender at the time of his trial for one crime
to do that, the chances of B receiving some shall have been previously convicted by
help was very little, despite the fact that final judgment of another embraced in the
there were other persons not so far from the same title of the Revised Penal Code.
scene.
Repetition or reiteracion under Article
Evidence tending to prove that the offender 14 (10) – The offender has been previously
took advantage of the place and purposely punished for an offense which the law
availed of it is to make it easier to commit attaches an equal or greater penalty or for
the crime, shall be necessary. two or more crimes to which it attaches a
lighter penalty.

Nighttime Habitual delinquency under Article 62

(5) – The offender within the period of 10
What if the crime started during the daytime years from the date of his release or last
and continued all the way to nighttime? conviction of the crimes of serious or less
This is not aggravating. serious physical injuries, robo, hurto, estafa
or falsification, is found guilty of the any of
As a rule, the crime must begin and end said crimes a third time or oftener.
during the nighttime. Crime began at day
and ended at night, as well as crime began Quasi-recidivism under Article 160 –
at night and ended at day is not aggravated Any person who shall commit a felony after
by the circumstance of nighttime. having been convicted by final judgment
before beginning to serve such sentence or
Darkness is what makes this circumstance while serving such sentence shall be
aggravating. punished by the maximum period
prescribed by law for the new felony.
Illustration:
Distinctions between recidivism and
One evening, a crime was committed near habitual delinquency
the lamp post. The Supreme Court held
that there is no aggravating circumstance of In recidivism –
nighttime. Even if the crime was committed Two convictions are enough.
at night, but there was light, hence,
darkness was not present, no aggravating The crimes are not specified; it is enough
circumstance just by the fact of nighttime that they may be embraced under the same
alone. title of the Revised Penal Code.

Even if there was darkness but the There is no time limit between the first
nighttime was only an incident of a chance conviction and the subsequent conviction.
meeting, there is no aggravating Recidivism is imprescriptible.
circumstance here. It must be shown that
the offender deliberately sought the cover It is a generic aggravating circumstance
of darkness and the offender purposely took which can be offset by an ordinary
mitigating circumstance. If not offset, it circumstance is present. It is important that
would only increase the penalty prescribed the conviction which came earlier must refer
by law for the crime committed to its to the crime committed earlier than the
maximum period. subsequent conviction.

The circumstance need not be alleged in the Illustration:

information.
In 1980, A committed robbery. While the
In habitual delinquency – case was being tried, he committed theft in
1983. He was found guilty and was
(1) At least three convictions are convicted of theft also in 1983. The
required. conviction became final because he did not
appeal anymore and the trial for his earlier
The crimes are limited and specified to: (a) crime which was robbery ended in 1984
serious physical injuries, (b) less serious where he was also convicted. He also did
physical injuries, (c) robbery, (d) theft, (e) not appeal this decision. Is the accused a
estafa or swindling and (f) falsification. recidivist? The subsequent conviction must
refer to a felony committed later in order to
(3) There is a time limit of not more than constitute recidivism. The reason for this is
10 years between every convictions as the time the first crime was committed,
computed from the first conviction or there was no other crime of which he was
release from punishment thereof to convicted so he cannot be regarded as a
conviction computed from the second repeater.
conviction or release therefrom to the third
conviction and so on . . . In recidivism, the crimes committed should
(4) Habitual delinquency is a special be felonies. Recidivism cannot be had if the
aggravating circumstance, hence it cannot crime committed is a violation of a special
be offset by any mitigating circumstance. law.
Aside from the penalty prescribed by law for
the crime committed, an additional penalty Recidivism does not prescribe. No matter
shall be imposed depending upon whether it how long ago the offender was convicted, if
is already the third conviction, the fourth, he is subsequently convicted of a crime
the fifth and so on . . . embraced in the same title of the Revised
Penal Code, it is taken into account as
(5) The circumstance must be alleged in aggravating in imposing the penalty.
the information; otherwise the court cannot
acquire jurisdiction to impose additional Pardon does not erase recidivism, even if it
penalty. is absolute because only excuses the
service of the penalty, but not the
conviction.
Recidivism
If the offender has already served his
In recidivism, the emphasis is on the fact sentence and he was extended an absolute
that the offender was previously convicted pardon, the pardon shall erase the
by final judgement of a felony and conviction including recidivism because
subsequently found guilty of another felony there is no more penalty so it shall be
embraced in the same title of the Revised understood as referring to the conviction or
Penal Code. The law considers this the effects of the crime.
aggravating when a person has been
committing felonies embraced in the same Recidivism may be considered even though
title because the implication is that he is not alleged in the information because this
specializing on such kind of crime and the is only a generic aggravating circumstance.
law wants to prevent any specialization.
Hence, ordinarily, when a person commits a It is necessary to allege recidivism in the
crime under different titles, no aggravating information, but if the defense does not
object to the presentation of evidence because no two crimes fall under the same
during the trial and the same was proven, title of the Code.
the court shall consider such aggravating
circumstance because it is only generic. If the first conviction is for serious physical
injuries or less serious physical injuries and
In recidivism, although the law defines it as the second conviction is for robbery, theft or
a circumstance where a person having been estafa and the third is for falsification, then
convicted by final judgement was previously the moment the habitual delinquent is on
convicted also by final judgement for a his fourth conviction already, you cannot
crime embraced in the same title in the avoid that he is a habitual delinquent and at
Revised Penal Code, it is necessary that the the same time a recidivist because at least,
conviction must come in the order in which the fourth time will have to fall under any of
they are committed. the three categories.

When the offender is a recidivist and at the

Question & Answer same time a habitual delinquent, the
penalty for the crime for which he will be
In 1975, the offender committed robbery. convicted will be increased to the maximum
While the same was being tried in 1978, he period unless offset by a mitigating
committed theft. In 1980, he was convicted circumstance. After determining the correct
of theft and he did not appeal this decision. penalty for the last crime committed, an
The trial for robbery ended in 1981. May added penalty will be imposed in
the judge in imposing the penalty for accordance with Article 62.
robbery consider the accused a recidivist
considering that he was already convicted in Habitual delinquency, being a special or
1980 for the crime of theft which is under specific aggravating circumstance must be
the same title of the Revised Penal Code as alleged in the information. If it is not alleged
that of robbery? in the information and in the course of the
trial, the prosecution tried to prove that the
No, because the robbery which was offender is a habitual delinquent over the
committed earlier would be decided later. It objection of the accused, the court has no
must be the other way around. This is jurisdiction to consider the offender a
because in 1975 when he committed the habitual delinquent. Even if the accused is
robbery, there was no crime committed yet. in fact a habitual delinquent but it is not
Thus, even though in imposing the penalty alleged in the information, the prosecution
for the robbery, there was already a when introducing evidence was objected to,
previous conviction, if that conviction is the court cannot admit the evidence
subsequent to the commission of the presented to prove habitual delinquency
robbery, he is not a recidivist. If you will over the objection of the accused.
interpret the definition of recidivism, this
would seem to be covered but that is not so. On the other hand, recidivism is a generic
aggravating circumstance. It need not be
alleged in the information. Thus, even if
Habitual delinquency recidivism is not alleged in the information,
if proven during trial, the court can
We have to consider the crimes in it and appreciate the same. If the prosecution tried
take note of the titles of crimes in the to prove recidivism and the defense
Revised Penal Code. objected, the objection should be overruled.
The reason is recidivism is a generic
If the offender had committed and was aggravating circumstance only. As such, it
convicted of each of the crimes under each does not have to be alleged in the
category so that no two crimes fall under information because even if not alleged, if
the same title of the Revised Penal Code, proven during trial, the trial court can
you have a situation where the offender is a appreciate it.
habitual delinquent but not a recidivist
Right now, the present rule is that it can be tasted the bitterness of life but if he had
appreciated even if not alleged in the already served out the penalty, the law
information. This is the correct view expects that since he has already tasted
because recidivism is a generic aggravating punishment, he will more or less refrain
circumstance. The reason why habitual from committing crimes again. That is why
delinquency cannot be appreciated unless if the offender committed a subsequent
alleged in the information is because felony which carries with it a penalty lighter
recidivism has nothing to do with the crime than what he had served, reiteracion is not
committed. Habitual delinquency refers to aggravating because the law considers that
prior conviction and therefore this must be somehow, this fellow was corrected because
brought in the information before the court instead of committing a serious crime, he
can acquire jurisdiction over this matter. committed a lesser one. If he committed
another lesser one, then he becomes a
Generally, the procedure you know that repeater.
when the prosecutor alleges habitual So, in reiteracion, the penalty attached to
delinquency, it must specify the crimes the crime subsequently committed should
committed, the dates when they were be higher or at least equal to the penalty
committed, the court which tried the case, that he has already served. If that is the
the date when the accused was convicted or situation, that means that the offender was
discharged. If these are not alleged, the never reformed by the fact that he already
information is defective. served the penalty imposed on him on the
first conviction. However, if he commits a
However, in a relatively recent ruling of the felony carrying a lighter penalty;
Supreme Court, it was held that even subsequently, the law considers that
though the details of habitual delinquency somehow he has been reformed but if he,
was not set forth in the information, as long again commits another felony which carries
as there is an allegation there that the a lighter penalty, then he becomes a
accused is a habitual delinquent, that is repeater because that means he has not yet
enough to confer jurisdiction upon the court reformed.
to consider habitual delinquency. In the
absence of the details set forth in the You will only consider the penalty in
information, the accused has the right to reiteracion if there is already a second
avail of the so-called bill of particulars. Even conviction. When there is a third conviction,
in a criminal case, the accused may file a you disregard whatever penalty for the
motion for bill of particulars. If the accused subsequent crimes committed. Even if the
fails to file such, he is deemed to have penalty for the subsequent crimes
waived the required particulars and so the committed are lighter than the ones already
court can admit evidence of the habitual served, since there are already two of them
delinquency, even though over and above subsequently, the offender is already a
the objection of the defense. repeater.

However, if there is only a second

Reiteracion conviction, pay attention to the penalty
attached to the crime which was committed
This has nothing to do with the classification for the second crime. That is why it is said
of the felonies. In reiteracion, the offender that reiteracion is not always aggravating.
has already tasted the bitterness of the This is so because if the penalty attached to
punishment. This is the philosophy on which the felony subsequently committed is not
the circumstance becomes aggravating. equal or higher than the penalty already
served, even if literally, the offender is a
It is necessary in order that there be repeater, repetition is not aggravating.
reiteracion that the offender has already
served out the penalty. If the offender had
not yet served out his penalty, forget about Quasi-recidivism
reiteracion. That means he has not yet
This is found in Article 160. The offender mitigating circumstance. When there is a
must already be convicted by final privileged mitigating circumstance, the
judgement and therefore to have served the penalty prescribed by law for the crime
penalty already, but even at this stage, he committed shall be lowered by 1 or 2
committed a felony before beginning to degrees, as the case may be, but then it
serve sentence or while serving sentence. shall be imposed in the maximum period if
the offender is a quasi-recidivist.
Illustration:

Offender had already been convicted by In consideration of a price, reward or

final judgement. Sentence was promulgated promise
and he was under custody in Muntinlupa.
While he was in Muntinlupa, he escaped The Supreme Court rulings before indicate
from his guard and in the course of his that this circumstance aggravates only the
escape, he killed someone. The killing was criminal liability of the person who
committed before serving sentence but committed the crime in consideration of the
convicted by final judgement. He becomes a price, promise, or reward but not the
quasi-recidivist because the crime criminal liability of the person who gave the
committed was a felony. price, reward or consideration. However,
when there is a promise, reward or price
The emphasis here is on the crime offered or given as a consideration for the
committed before sentence or while serving commission of the crime, the person making
sentence which should be a felony, a the offer is an inducer, a principal by
violation of the Revised Penal Code. In so far inducement while the person receiving the
as the earlier crime is concerned, it is price, reward or promise who would execute
necessary that it be a felony. the crime is a principal by direct
participation. Hence, their responsibilities
Illustration: are the same. They are both principals and
that is why the recent rulings of the
The offender was convicted of homicide. Supreme Court are to the effect that this
While serving sentence in Muntinlupa, he aggravating circumstance affects or
was found smoking marijuana. He was aggravates not only the criminal liability of
prosecuted for illegal use of prohibited the receiver of the price, reward or promise
drugs and was convicted. Is he a quasi- but also the criminal liability of the one
recidivist? No, because the crime committed giving the offer.
while serving sentence is not a felony.

Reverse the situation. Assume that the By means of inundation or fire

offender was found guilty of illegal use of
prohibited drugs. While he was serving Fire is not aggravating in the crime of arson.
sentence, he got involved in a quarrel and Whenever a killing is done with the use of
killed a fellow inmate. Is he a quasi- fire, as when to kill someone, you burn
recidivist? Yes, because while serving down his house while the latter is inside,
sentence, he committed a felony. this is murder.

The emphasis is on the nature of the crime There is no such crime as murder with arson
committed while serving sentence or before or arson with homicide. The crime
serving sentence. It should not be a committed is only murder.
violation of a special law.
If the victim is already dead and the house
Quasi-recidivism is a special aggravating is burned, the crime is arson. It is either
circumstance. This cannot be offset by any arson or murder.
mitigating circumstance and the imposition
of the penalty in the maximum period If the intent is to destroy property, the crime
cannot be lowered by any ordinary is arson even if someone dies as a
consequence. If the intent is to kill, there is evident premeditation? None but there is
murder even if the house is burned in the treachery as the attack was sudden.
process.
Can there be evident premeditation when
Illustration: the killing is accidental? No. In evident
premeditation, there must be a clear
A and B were arguing about something. reflection on the part of the offender.
One argument led to another until A struck However, if the killing was accidental, there
B to death with a bolo. A did not know that was no evident premeditation. What is
C, the son of B was also in their house and necessary to show and to bring about
who was peeping through the door and saw evident premeditation aside from showing
what A did. Afraid that A might kill him, too, that as some prior time, the offender has
he hid somewhere in the house. A then manifested the intention to kill the victim,
dragged B's body and poured gasoline on it and subsequently killed the victim.
and burned the house altogether. As a
consequence, C was burned and eventually Illustrations:
died too.
A and B fought. A told B that someday he
As far as the killing of B is concerned, it is will kill B. On Friday, A killed B. A and B
homicide since it is noted that they were fought on Monday but since A already
arguing. It could not be murder. As far as suffered so many blows, he told B, "This
the killing of C is concerned, the crime is week shall not pass, I will kill you." On
arson since he intended to burn the house Friday, A killed B. Is there evident
only. premeditation in both cases? None in both
cases. What condition is missing to bring
No such crime as arson with homicide. Law about evident premeditation? Evidence to
enforcers only use this to indicate that a show that between Monday and Friday, the
killing occurred while arson was being offender clung to his determination to kill
committed. At the most, you could the victim, acts indicative of his having
designate it as “death as a consequence of clung to his determination to kill B.
arson.”
A and B had a quarrel. A boxed B. A told B,
"I will kill you this week." A bought firearms.
Evident premeditation On Friday, he waited for B but killed C
instead. Is there evident premeditation?
For evident premeditation to be There is aberratio ictus. So, qualify. Insofar
aggravating, the following conditions must as B is concerned, the crime is attempted
concur: murder because there is evident
premeditation. However, that murder
(1) The time when the accused cannot be considered for C. Insofar as C is
determined to commit the crime; concerned, the crime is homicide because
there was no evident premeditation.
(2) An act manifestly indicating that the
accused has clung to his determination; Evident premeditation shall not be
considered when the crime refers to a
(3) Sufficient lapse of time between such different person other than the person
determination and execution, to allow him premeditated against.
to reflect upon the consequences of his act.
Illustration: While it is true that evident premeditation
may be absorbed in treachery because the
A, on Monday, thought of killing B on Friday. means, method and form of attack may be
A knew that B is coming home only on premeditated and would be resorted to by
Friday so A decided to kill B on Friday the offender. Do not consider both
evening when he comes home. On aggravating circumstances of treachery and
Thursday, A met B and killed him. Is there evident premeditation against the offender.
It is only treachery because the evident then bought a knife, sharpened it and
premeditation is the very conscious act of stabbed the first man he met on the street.
the offender to ensure the execution. It was held that evident premeditation is not
present. It is essential for this aggravating
But there may be evident premeditation and circumstance for the victim to be identified
there is treachery also when the attack was from the beginning.
so sudden.
A premeditated to kill any member of
A and B are enemies. They fought on particular fraternity. He then killed one.
Monday and parted ways. A decided to seek This is murder – a homicide which has been
revenge. He bought a firearm and practiced qualified into murder by evident
shooting and then sought B. When A saw B premeditation which is a qualifying
in the restaurant with so many people, A did circumstance. Same where A planned to kill
not dare fire at B for fear that he might hit a any member of the Iglesio ni Kristo.
stranger but instead, A saw a knife and used
it to stab B with all suddenness. Evident There are some crimes which cannot be
premeditation was not absorbed in aggravated by evident premeditation
treachery because treachery refers to the because they require some planning before
manner of committing the crime. Evident they can be committed. Evident
premeditation is always absorbed in premeditation is part of the crime like
treachery. kidnapping for ransom, robbery with force
upon things where there is entry into the
This is one aggravating circumstance where premises of the offended party, and estafa
the offender who premeditated, the law through false pretenses where the offender
says evident. It is not enough that there is employs insidious means which cannot
some premeditation. Premeditation must be happen accidentally.
clear. It is required that there be evidence
showing meditation between the time when
the offender determined to commit the Craft
crime and the time when the offender
executed the act. It must appear that the Aggravating in a case where the offenders
offender clung to his determination to pretended to be bona fide passengers of a
commit the crime. The fact that the offender jeepney in order not to arouse suspicion, but
premeditated is not prima facie indicative of once inside the jeepney, robbed the
evident premeditation as the meeting or passengers and the driver (People v. Lee,
encounter between the offender and the decided on December 20, 1991).
offended party was only by chance or
accident.
Abuse of superior strength
In order for evident premeditation to be
considered, the very person/offended party There must be evidence of notorious
premeditated against must be the one who inequality of forces between the offender
is the victim of the crime. It is not necessary and the offended party in their age, size and
that the victim is identified. It is enough that strength, and that the offender took
the victim is determined so he or she advantage of such superior strength in
belongs to a group or class who may be committing the crime. The mere fact that
premeditated against. This is a there were two persons who attacked the
circumstance that will qualify a killing from victim does not per se constitute abuse of
homicide to murder. superior strength (People v. Carpio, 191
SCRA 12).
Illustration:

A person who has been courting a lady for Treachery

several years now has been jilted. Because
of this, he thought of killing somebody. He,
Treachery refers to the employment of his way home. One evening, A waited for B
means, method and form in the commission and stabbed B. However, B pulled a knife as
of the crime which tend directly and well and stabbed A also. A was wounded but
specially to insure its execution without risk not mortal so he managed to run away. B
to himself arising from the defense which was able to walk a few steps before he fell
the offended party might make. The means, and died. What crime was committed?
method or form employed my be an
aggravating circumstance which like The crime is only homicide because the
availing of total darkness in nighttime or aggravating circumstance is only nocturnity
availing of superior strength taken and nocturnity is not a qualifying
advantage of by the offender, employing circumstance. The reason why treachery
means to weaken the defense. cannot be considered as present here is
because the offended party was able to put
Illustration: up a defense and that negates treachery. In
treachery, the offended party, due to the
A and B have been quarreling for some means, method or form employed by the
time. One day, A approached B and offender, the offended party was denied the
befriended him. B accepted. A proposed chance to defend himself. If because of the
that to celebrate their renewed friendship, cover of darkness, B was not able to put up
they were going to drink. B was having too a defense and A was able to flee while B
much to drink. A was just waiting for him to died, the crime is murder because there is
get intoxicated and after which, he stabbed already treachery. In the first situation, the
B. crime was homicide only, the nighttime is
generic aggravating circumstance.
A pretended to befriend B, just to intoxicate
the latter. Intoxication is the means In the example where A pretended to
deliberately employed by the offender to befriend B and invited him to celebrate their
weaken the defense of the offended party. If friendship, if B despite intoxication was able
this was the very means employed, the to put up some fight against A but
circumstance may be treachery and not eventually, B died, then the attendant
abuse of superior strength or means to circumstance is no longer treachery but
weaken the defense. means employed to weaken the defense.
But in murder, this is also a qualifying
What is the essence of treachery? circumstance. The crime committed is
murder but then the correct circumstance is
The essence of treachery is that by virtue of not treachery but means employed to
the means, method or form employed by weaken the defense.
the offender, the offended party was not
able to put up any defense. If the offended In the same manner, if the offender avails of
party was able to put up a defense, even the services of men and in the commission
only a token one, there is no treachery of the crime, they took advantage of
anymore. Instead some other aggravating superior strength but somehow, the
circumstance may be present but not offended party fought back, the crime is still
treachery anymore. murder if the victim is killed. Although the
qualifying circumstance is abuse of superior
Illustration: strength and not treachery, which is also a
qualifying circumstance of murder under
A and B quarreled. However A had no Article 248.
chance to fight with B because A is much
smaller than B. A thought of killing B but Treachery is out when the attack was
then he cannot just attack B because of the merely incidental or accidental because in
latter's size. So, A thought of committing a the definition of treachery, the implication is
crime at nighttime with the cover of that the offender had consciously and
darkness. A positioned himself in the deliberately adopted the method, means
darkest part of the street where B passes on and form used or employed by him. So, if A
and B casually met and there and then A pertains to the moral order, whether or not
stabbed B, although stabbing may be the victim is dead or alive. Cruelty pertains
sudden since A was not shown to have the to physical suffering of the victim so the
intention of killing B, treachery cannot be victim has to be alive. In plain language,
considered present. ignominy is adding insult to injury. A clear
example is a married woman being raped
There must be evidenced on how the crime before the eyes of her husband.
was committed. It is not enough to show
that the victim sustained treacherous In a case where the crime committed is rape
wound. Example: A had a gunshot wound at and the accused abused the victims from
the back of his head. The SC ruled this is behind, the Supreme Court considered the
only homicide because treachery must be crime as aggravated by ignominy. Hence,
proven. It must be shown that the victim raping a woman from behind is ignominous
was totally defenseless. because this is not the usual intercourse, it
is something which offends the moral of the
Suddenness of the attack does not by itself offended woman. This is how animals do it.
constitute treachery in the absence of
evidence that the manner of the attack was In a case of homicide, while the victim after
consciously adopted by the offender to having been killed by the offender, the
render the offended party defenseless offender shoved the body inside a canal,
(People v. Ilagan, 191 SCRA 643). ignominy is held aggravating.

But where children of tender years were After having been killed, the body was
killed, being one year old and 12 years old, thrown into pile of garbage, ignominy is
the killing is murder even if the manner of aggravating. The Supreme Court held that it
attack was not shown (People v. Gahon, added shame to the natural effects of the
decided on April 30, 1991). crime.

In People v. Lapan, decided on July 6, 1992, Cruelty and ignominy are circumstances
the accused was prosecuted for robbery brought about which are not necessary in
with homicide. Robbery was not proven the commission of the crime.
beyond reasonable doubt. Accused held
liable only for the killings. Although one of Illustration:
the victims was barely six years old, the
accused was convicted only for homicide, A and B are enemies. A upon seeing B
aggravated by dwelling and in disregard of pulled out a knife and stabbed B 60 times.
age. Will that fact be considered as an
aggravating circumstance of cruelty? No,
Treachery not appreciated where quarrel there is cruelty only when there are
and heated discussion preceded a killing, evidence that the offender inflicted the stab
because the victim would be put on guard wounds while enjoying or delighted to see
(People v. Gupo). But although a quarrel the victim in pain. For cruelty to exist as an
preceded the killing where the victim was aggravating circumstance, there must be
atop a coconut tree, treachery was evidence showing that the accused inflicted
considered as the victim was not in a the alleged cruel wounds slowly and
position to defend himself (People v. gradually and that he is delighted seeing
Toribio). the victim suffer in pain. In the absence of
evidence to this effect, there is no cruelty.
Sixty stab wounds do not ipso facto make
Distinction between ignominy and them aggravating circumstances of cruelty.
cruelty The crime is murder if 60 wounds were
inflicted gradually; absence of this evidence
Ignominy shocks the moral conscience of means the crime committed is only
man while cruelty is physical. Ignominy homicide.
refers to the moral effect of a crime and it
Cruelty is aggravating in rape where the helping one another for purposes of gain in
offender tied the victim to a bed and burnt the commission of a crime.
her face with a lighted cigarette while
raping her laughing all the way (People v. With this provision, the circumstance of an
Lucas, 181 SCRA 315). organized or syndicated crime group having
committed the crime has been added in the
Code as a special aggravating circumstance.
Unlawful entry The circumstance being special or
qualifying, it must be alleged in the
Unlawful entry is inherent in the crime of information and proved during the trial.
robbery with force upon things but Otherwise, if not alleged in the information,
aggravating in the crime of robbery with even though proven during the trial, the
violence against or intimidation of persons. court cannot validly consider the
circumstances because it is not among
those enumerated under Article 14 of the
Motor vehicle Code as aggravating. It is noteworthy,
however, that there is an organized or
The Supreme Court considers strictly the syndicated group even when only two
use of the word “committed”, that the crime persons collaborated, confederated, or
is committed with the use of a motor mutually helped one another in the
vehicle, motorized means of transportation commission of a crime, which acts are
or motorized watercraft. There is a decision inherent in a conspiracy. Where therefore,
by the Court of Appeals that a motorized conspiracy in the commission of the crime is
bicycle is a motor vehicle even if the alleged in the information, the allegation
offender used only the foot pedal because may be considered as procedurally
he does not know how to operate the motor sufficient to warrant receiving evidence on
so if a bicycle is used in the commission of the matter during trial and consequently,
the crime, motor vehicle becomes the said special aggravating circumstance
aggravating if the bicycle is motorized. can be appreciated if proven.

This circumstance is aggravating only when

used in the commission of the offense. If
motor vehicle is used only in the escape of
the offender, motor vehicle is not
aggravating. To be aggravating, it must
have been used to facilitate the commission
of the crime.

Aggravating when a motorized tricycle was

used to commit the crime

Organized or syndicated crime group

In the same amendment to Article 62 of the

Revised Penal Code, paragraphs were
added which provide that the maximum
penalty shall be imposed if the offense was
committed by any person who belongs to an
organized or syndicated crime group.

An organized or syndicated crime group

means a group of two or more persons
collaborating, confederating or mutually