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It is that branch of public substantive law which Territoriality means that the penal laws of the
defines offenses and prescribes their penalties. country have force and effect only within its
It is substantive because it defines the states territory. It cannot penalize crimes committed
right to inflict punishment and the liability of the outside the same. This is subject to certain
offenders. It is public law because it deals with exceptions brought about by international
the relation of the individual with the state. agreements and practice. The territory of the
country is not limited to the land where its
sovereignty resides but includes also its
Limitations on the power of Congress to maritime and interior waters as well as its
enact penal laws atmosphere.
dimension are part of our national territory. law had already taken effect. Vice-versa, this
Under this Rule, there is no more center lane, act or omission which has been committed
all these waters, regardless of their dimension before the effectivity of a penal law could not
or width are part of Philippine territory. be penalized by such penal law because penal
laws operate only prospectively.
So if a foreign merchant vessel is in the center
lane and a crime was committed, the crime will In some textbooks, an exemption is said to
be prosecuted before Philippine courts. exist when the penal law is favorable to the
offender, in which case it would have
retroactive application; provided that the
Three international law theories on aerial offender is not a habitual delinquent and there
jurisdiction is no provision in the law against its retroactive
application.
(1) The atmosphere over the country is
free and not subject to the jurisdiction of The exception where a penal law may be given
the subjacent state, except for the retroactive application is true only with a
protection of its national security and repealing law. If it is an original penal law, that
public order. exception can never operate. What is
contemplated by the exception is that there is
Under this theory, if a crime is an original law and there is a repealing law
committed on board a foreign aircraft at repealing the original law. It is the repealing
the atmosphere of a country, the law of law that may be given retroactive application to
that country does not govern unless the those who violated the original law, if the
crime affects the national security. repealing penal law is more favorable to the
offender who violated the original law. If there
(2) Relative Theory The subjacent state is only one penal law, it can never be given
exercises jurisdiction over its retroactive effect.
atmosphere only to the extent that it
can effectively exercise control thereof.
The Relative Theory Rule of prospectivity also applies to
administrative rulings and circulars
Under this theory, if a crime was
committed on an aircraft which is In Co v. CA, decided on October 28, 1993, it
already beyond the control of the was held that the principle of prospectivity of
subjacent state, the criminal law of that statutes also applies to administrative rulings
state will not govern anymore. But if and circulars. In this case, Circular No. 4 of
the crime is committed in an aircraft the Ministry of Justice, dated December 15,
within the atmosphere over a subjacent 1981, provides that where the check is issued
state which exercises control, then its as part of an arrangement to guarantee or
criminal law will govern. secure the payment of an obligation, whether
pre-existing or not, the drawer is not criminally
(3) Absolute Theory The subjacent state liable for either estafa or violation of BP22.
has complete jurisdiction over the Subsequently, the administrative interpretation
atmosphere above it subject only to of was reversed in Circular No. 12, issued on
innocent passage by aircraft of foreign August 8, 1984, such that the claim that the
country. check was issued as a guarantee or part of an
arrangement to secure an obligation or to
Under this theory, if the crime is facilitate collection, is no longer a valid defense
committed in an aircraft, no matter how for the prosecution of BP22. Hence, it was
high, as long as it can establish that it is ruled in Que v. People that a check issued
within the Philippine atmosphere, merely to guarantee the performance of an
Philippine criminal law will govern. This obligation is, nevertheless, covered by BP 22.
is the theory adopted by the But consistent with the principle of
Philippines. prospectivity, the new doctrine should not
apply to parties who had relied on the old
doctrine and acted on the faith thereof. No
PROSPECTIVITY retrospective effect.
In some commentaries, there are references they escape, they commit the crime of
as to whether the repeal is express or implied. evasion of sentence, even if there is no
What affects the criminal liability of an offender more legal basis to hold them in the
is not whether a penal law is expressly or penitentiary. This is so because
impliedly repealed; it is whether it is absolutely prisoners are accountabilities of the
or totally repealed, or relatively or partially government; they are not supposed to
repealed. step out simply because their sentence
has already been, or that the law under
Total or absolute, or partial or relative which they are sentenced has been
repeal. -- As to the effect of repeal of penal law declared null and void.
to the liability of offender, qualify your answer
by saying whether the repeal is absolute or If they are not discharged from
total or whether the repeal is partial or relative confinement, a petition for habeas
only. corpus should be filed to test the
legality of their continued confinement
A repeal is absolute or total when the crime in jail.
punished under the repealed law has been
decriminalized by the repeal. Because of the If the convict, on the other hand, is a
repeal, the act or omission which used to be a habitual delinquent, he will continue
crime is no longer a crime. An example is serving the sentence in spite of the fact
Republic Act No. 7363, which decriminalized that the law under which he was
subversion. convicted has already been absolutely
repealed. This is so because penal
A repeal is partial or relative when the crime laws should be given retroactive
punished under the repealed law continues to application to favor only those who are
be a crime inspite of the repeal. This means not habitual delinquents.
that the repeal merely modified the conditions
affecting the crime under the repealed law.
The modification may be prejudicial or
beneficial to the offender. Hence, the following Question & Answer
rule:
A, a prisoner, learns that he is already
Consequences if repeal of penal law is total or overstaying in jail because his jail guard, B,
absolute who happens to be a law student advised him
that there is no more legal ground for his
(1) If a case is pending in court involving continued imprisonment, and B told him that he
the violation of the repealed law, the can go. A got out of jail and went home. Was
same shall be dismissed, even though there any crime committed?
the accused may be a habitual
delinquent. This is so because all As far as A, the prisoner who is serving
persons accused of a crime are sentence, is concerned, the crime committed is
presumed innocent until they are evasion of sentence.
convicted by final judgment. Therefore,
the accused shall be acquitted. As far as B, the jail guard who allowed
A to go, is concerned, the crime committed is
(2) If a case is already decided and the infidelity in the custody of prisoners.
accused is already serving sentence by
final judgment, if the convict is not a
habitual delinquent, then he will be Consequences if repeal of penal law is partial
entitled to a release unless there is a or relative
reservation clause in the penal law that
it will not apply to those serving (1) If a case is pending in court involving
sentence at the time of the repeal. But the violation of the repealed law, and
if there is no reservation, those who are the repealing law is more favorable to
not habitual delinquents even if they are the accused, it shall be the one applied
already serving their sentence will to him. So whether he is a habitual
receive the benefit of the repealing law. delinquent or not, if the case is still
They are entitled to release. pending in court, the repealing law will
be the one to apply unless there is a
This does not mean that if they are not saving clause in the repealing law that it
released, they are free to escape. If
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 4
shall not apply to pending causes of those infractions of the law for the commission
action. of which a penalty of arresto mayor or a fine
not exceeding P200.00 or both is provided. On
(2) If a case is already decided and the the other hand, under Article 26, a fine whether
accused is already serving sentence by imposed as a single or an alternative penalty, if
final judgment, even if the repealing law it exceeds P6,000.00 but is not less than P
is partial or relative, the crime still 200.00, is considered a correctional penalty.
remains to be a crime. Those who are These two articles appear to be inconsistent.
not habitual delinquents will benefit on So to harmonize them, the Supreme Court
the effect of that repeal, so that if the ruled that if the issue involves the prescription
repeal is more lenient to them, it will be of the crime, that felony will be considered a
the repealing law that will henceforth light felony and, therefore, prescribes within
apply to them. two months. But if the issue involves
prescription of the penalty, the fine of P200.00
For example, under the original law, the will be considered correctional and it will
penalty is six years. Under the prescribe within 10 years. Clearly, the court
repealing law, it is four years. Those avoided the collision between the two articles.
convicted under the original law will be
subjected to the four-year penalty. This
retroactive application will not be
possible if there is a saving clause that
provides that it should not be given Consequences if repeal of penal law is express
retroactive effect. or implied
Under Article 22, even if the offender is (1) If a penal law is impliedly repealed, the
already convicted and serving subsequent repeal of the repealing law
sentence, a law which is beneficial shall will revive the original law. So the act or
be applied to him unless he is a omission which was punished as a
habitual delinquent in accordance with crime under the original law will be
Rule 5 of Article 62. revived and the same shall again be
crimes although during the implied
repeal they may not be punishable.
Express or implied repeal. Express or
implied repeal refers to the manner the repeal (2) If the repeal is express, the repeal of
is done. the repealing law will not revive the first
law, so the act or omission will no
Express repeal takes place when a longer be penalized.
subsequent law contains a provision that such
law repeals an earlier enactment. For These effects of repeal do not apply to self-
example, in Republic Act No. 6425 (The repealing laws or those which have automatic
Dangerous Drugs Act of 1972), there is an termination. An example is the Rent Control
express provision of repeal of Title V of the Law which is revived by Congress every two
Revised Penal Code. years.
Implied repeals are not favored. It requires a When there is a repeal, the repealing law
competent court to declare an implied repeal. expresses the legislative intention to do away
An implied repeal will take place when there is with such law, and, therefore, implies a
a law on a particular subject matter and a condonation of the punishment. Such
subsequent law is passed also on the same legislative intention does not exist in a self-
subject matter but is inconsistent with the first terminating law because there was no repeal
law, such that the two laws cannot stand at all.
together, one of the two laws must give way. It
is the earlier that will give way to the later law
because the later law expresses the recent BASIC MAXIMS IN CRIMINAL LAW
legislative sentiment. So you can have an
implied repeal when there are two inconsistent
laws. When the earlier law does not expressly Doctrine of Pro Reo
provide that it is repealing an earlier law, what
has taken place here is implied repeal. If the Whenever a penal law is to be construed or
two laws can be reconciled, the court shall applied and the law admits of two
always try to avoid an implied repeal. For interpretations one lenient to the offender
example, under Article 9, light felonies are and one strict to the offender that
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 5
The present Revised Penal Code During Martial Law, there are many
Presidential Decrees issued aside from the
When a committee to draft the Revised Penal special laws passed by the Philippine
Code was formed, one of the reference that Legislature Commission. All these special
they took hold of was the correctional code of laws, which are penal in character, are part of
Del Pan. In fact, many provisions of the our Penal Code.
Revised Penal Code were no longer from the
Spanish Penal Code; they were lifted from the
correctional code of Del Pan. So it was him
who formulated or paraphrased this provision
making it simpler and more understandable to
Filipinos because at that time, there were only
a handful who understood Spanish.
They are there to segregate the offenders from the crime is punished under a special law, if the
the good members of society. act punished is one which is inherently wrong,
the same is malum in se, and, therefore, good
From this philosophy came the jury system, faith and the lack of criminal intent is a valid
where the penalty is imposed on a case to defense; unless it is the product of criminal
case basis after examination of the offender by negligence or culpa.
a panel of social scientists which do not
include lawyers as the panel would not want Likewise when the special laws requires that
the law to influence their consideration. the punished act be committed knowingly and
willfully, criminal intent is required to be proved
Crimes are regarded as social phenomena before criminal liability may arise.
which constrain a person to do wrong although
not of his own volition. A tendency towards When the act penalized is not inherently
crime is the product of ones environment. wrong, it is wrong only because a law punishes
There is no such thing as a natural born killer. the same.
This philosophy is criticized as being too For example, Presidential Decree No. 532
lenient. punishes piracy in Philippine waters and the
special law punishing brigandage in the
highways. These acts are inherently wrong
Eclectic or Mixed Philosophy and although they are punished under special
law, the acts themselves are mala in se; thus,
This combines both positivist and classical good faith or lack of criminal intent is a
thinking. Crimes that are economic and social defense.
and nature should be dealt with in a positivist
manner; thus, the law is more compassionate.
Heinous crimes should be dealt with in a Distinction between crimes punished under the
classical manner; thus, capital punishment. Revised Penal Code and crimes punished
under special laws
Since the Revised Penal Code was adopted
from the Spanish Codigo Penal, which in turn 1. As to moral trait of the offender
was copied from the French Code of 1810
which is classical in character, it is said that our In crimes punished under the Revised
Code is also classical. This is no longer true Penal Code, the moral trait of the
because with the American occupation of the offender is considered. This is why
Philippines, many provisions of common law liability would only arise when there is
have been engrafted into our penal laws. The dolo or culpa in the commission of the
Revised Penal Code today follows the mixed or punishable act.
eclectic philosophy. For example, intoxication
of the offender is considered to mitigate his In crimes punished under special laws,
criminal liability, unless it is intentional or the moral trait of the offender is not
habitual; the age of the offender is considered; considered; it is enough that the
and the woman who killed her child to conceal prohibited act was voluntarily done.
her dishonor has in her favor a mitigating
circumstance. 2. As to use of good faith as defense
Note, however, that not all violations of special In crimes punished under the Revised
laws are mala prohibita. While intentional Penal Code, the degree of
felonies are always mala in se, it does not accomplishment of the crime is taken
follow that prohibited acts done in violation of into account in punishing the offender;
special laws are always mala prohibita. Even if thus, there are attempted, frustrated,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 8
When given a problem, take note if the crime is use the word territory, do not limit this to land
a violation of the Revised Penal Code or a area only.
special law.
As far as jurisdiction or application of the
Revised Penal Code over crimes committed on
FELONY, OFFENSE, MISDEMEANOR AND maritime zones or interior waters, the
CRIME Archipelagic Rule shall be observed. So the
three-mile limit on our shoreline has been
modified by the rule. Any crime committed in
Felony interior waters comprising the Philippine
archipelago shall be subject to our laws
A crime under the Revised Penal Code is although committed on board a foreign
referred to as a felony. Do not use this term in merchant vessel.
reference to a violation of special law.
A vessel is considered a Philippine ship only
when it is registered in accordance with
Philippine laws. Under international law, as
long as such vessel is not within the territorial
Offense waters of a foreign country, Philippine laws
shall govern.
A crimes punished under a special law is called
as statutory offense.
Extraterritorial application
$10,000.00. The daughter persuaded the understood as referring to crimes under the
consul and the latter agreed. Will the crime be Revised Penal Code
subject to the Revised Penal Code? If so, .
what crime or crimes have been committed? This is important because there are certain
provisions in the Revised Penal Code where
Yes. Falsification. the term felony is used, which means that the
provision is not extended to crimes under
Normally, the taking of the deposition is special laws. A specific instance is found in
not the function of the consul, his function Article 160 Quasi-Recidivism, which reads:
being the promotion of trade and commerce
with another country. Under the Rules of A person who shall commit a
Court, however, a consul can take depositions felony after having been
or letters rogatory. There is, therefore, a convicted by final judgment,
definite provision of the law making it the before beginning to serve
consuls function to take depositions. When he sentence or while serving the
agreed to the falsification of the deposition, he same, shall be punished under
was doing so as a public officer in the service the maximum period of the
of the Philippine government. penalty.
Paragraph 5 of Article 2, use the phrase as Note that the word "felony" is used.
defined in Title One of Book Two of this Code.
This is a very important part of the exception,
because Title I of Book 2 (crimes against
national security) does not include rebellion. Questions & Answers
So if acts of rebellion were perpetrated by
Filipinos who were in a foreign country, you
1. If a prisoner who is serving
cannot give territorial application to the
sentence is found in possession of dangerous
Revised Penal Code, because Title I of Book 2
drugs, can he be considered a quasi-recidivist?
does not include rebellion.
No. The violation of Presidential
Illustration:
Decree No. 6425 (The Dangerous Drugs Act of
1972) is not a felony. The provision of Article
When a Filipino who is already married in the
160 specifically refers to a felony and felonies
Philippines, contracts another marriage
are those acts and omissions punished under
abroad, the crime committed is bigamy. But
the Revised Penal Code.
the Filipino can not be prosecuted when he
comes back to the Philippines, because the
2. Is illegal possession of bladed
bigamy was committed in a foreign country and
weapon a felony?
the crime is not covered by paragraph 5 of
Article 2. However, if the Filipino, after the
No. It is not under the Revised Penal
second marriage, returns to the Philippines
Code.
and cohabits here with his second wife, he
commits the crime of concubinage for which he
can be prosecuted.
An act or omission
The Revised Penal Code shall not apply to any
To be considered as a felony there must be an
other crime committed in a foreign country
act or omission; a mere imagination no matter
which does not come under any of the
how wrong does not amount to a felony. An
exceptions and which is not a crime against
act refers to any kind of body movement that
national security.
produces change in the outside world. For
example, if A, a passenger in a jeepney seated
in front of a lady, started putting out his tongue
HOW A FELONY MAY ARISE
suggesting lewdness, that is already an act in
contemplation of criminal law. He cannot claim
that there was no crime committed. If A
Punishable by the Revised Penal Code
scratches something, this is already an act
which annoys the lady he may be accused of
The term felony is limited only to violations of
unjust vexation, not malicious mischief.
the Revised Penal Code. When the crime is
punishable under a special law you do not refer
to this as a felony. So whenever you
Dolo or culpa
encounter the term felony, it is to be
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 12
However, It does not mean that if an act or any of these requisites is absent, there can be
omission is punished under the Revised Penal no dolo nor culpa. When there is no dolo or
Code, a felony is already committed. To be culpa, a felony cannot arise.
considered a felony, it must also be done with
dolo or culpa.
Question & Answer
Under Article 3, there is dolo when there is
deceit. This is no longer true. At the time the
What do you understand by
Revised Penal Code was codified, the term
voluntariness in criminal law?
nearest to dolo was deceit. However, deceit
means fraud, and this is not the meaning of
The word voluntariness in criminal law
dolo.
does not mean acting in ones own volition. In
criminal law, voluntariness comprehends the
Dolo is deliberate intent otherwise referred to
concurrence of freedom of action, intelligence
as criminal intent, and must be coupled with
and the fact that the act was intentional. In
freedom of action and intelligence on the part
culpable felonies, there is no voluntariness if
of the offender as to the act done by him.
either freedom, intelligence or imprudence,
negligence, lack of foresight or lack of skill is
The term, therefore, has three requisites on the
lacking. Without voluntariness, there can be
part of the offender:
no dolo or culpa, hence, there is no felony.
(1) Criminal intent;
In a case decided by the Supreme Court, two
(2) Freedom of action; and
persons went wild boar hunting. On their way,
they met Pedro standing by the door of his
(3) Intelligence.
house and they asked him where they could
find wild boars. Pedro pointed to a place
If any of these is absent, there is no dolo. If
where wild boars were supposed to be found,
there is no dolo, there could be no intentional
and the two proceeded thereto. Upon getting
felony.
to the place, they saw something moving, they
shot, unfortunately the bullet ricocheted killing
Pedro. It was held that since there was neither
Question & Answer dolo nor culpa, there is no criminal liability.
falsification, the mens rea is the effecting of the result from such imprudence is not clear, not
forgery with intent to pervert the truth. It is not manifest nor immediate you have only a case
merely writing something that is not true; the of simple negligence. Because of Article 365,
intent to pervert the truth must follow the one might think that criminal negligence is the
performance of the act. one being punished. That is why a question is
created that criminal negligence is the crime in
In criminal law, we sometimes have to consider itself.
the crime on the basis of intent. For example,
attempted or frustrated homicide is In People v. Faller, it was stated indirectly that
distinguished from physical injuries only by the that criminal negligence or culpa is just a mode
intent to kill. Attempted rape is distinguished of incurring criminal liability. In this case, the
from acts of lasciviousness by the intent to accused was charged with malicious mischief.
have sexual intercourse. In robbery, the mens Malicious mischief is an intentional negligence
rea is the taking of the property of another under Article 327 of the Revised Penal Code.
coupled with the employment of intimidation or The provision expressly requires that there be
violence upon persons or things; remove the a deliberate damaging of property of another,
employment of force or intimidation and it is not which does not constitute destructive arson.
robbery anymore. You do not have malicious mischief through
simple negligence or reckless imprudence
because it requires deliberateness. Faller was
Mistake of fact charged with malicious mischief, but was
convicted of damage to property through
When an offender acted out of a reckless imprudence. The Supreme Court
misapprehension of fact, it cannot be said that pointed out that although the allegation in the
he acted with criminal intent. Thus, in criminal information charged the accused with an
law, there is a mistake of fact. When the intentional felony, yet the words feloniously and
offender acted out of a mistake of fact, criminal unlawfully, which are standard languages in an
intent is negated, so do not presume that the information, covers not only dolo but also culpa
act was done with criminal intent. This is because culpa is just a mode of committing a
absolutory if crime involved dolo. felony.
Mistake of fact would be relevant only when In Quezon v. Justice of the Peace, Justice
the felony would have been intentional or J.B.L. Reyes dissented and claimed that
through dolo, but not when the felony is a criminal negligence is a quasi-offense, and the
result of culpa. When the felony is a product of correct designation should not be homicide
culpa, do not discuss mistake of fact. When through reckless imprudence, but reckless
the felonious act is the product of dolo and the imprudence resulting in homicide. The view of
accused claimed to have acted out of mistake Justice Reyes is sound, but the problem is
of fact, there should be no culpa in determining Article 3, which states that culpa is just a mode
the real facts, otherwise, he is still criminally by which a felony may result.
liable, although he acted out of a mistake of
fact. Mistake of fact is only a defense in
intentional felony but never in culpable felony. Question & Answer
the crewmembers engaged in the loading of not enough to relieve the offender of the
cargo in the vessel. Because the offended liability for the inflicting injuries.
party was slow in his work, the accused
shouted at him. The offended party replied that When a person inflicted wound upon another,
they would be better if he would not insult and his victim upon coming home got some
them. The accused resented this, and rising in leaves, pounded them and put lime there, and
rage, he moved towards the victim, with a big applying this to the wound, developed locked
knife in hand threatening to kill him. The victim jaw and eventually he died, it was held that the
believing himself to be in immediate peril, one who inflicted the wound is liable for his
threw himself into the water. The victim died of death.
drowning. The accused was prosecuted for
homicide. His contention that his liability should In another instance, during a quarrel, the victim
be only for grave threats since he did not even was wounded. The wound was superficial, but
stab the victim, that the victim died of just the same the doctor put inside some
drowning, and this can be considered as a packing. When the victim went home, he could
supervening cause. It was held that the not stand the pain, so he pulled out the
deceased, in throwing himself into the river, packing. That resulted into profuse bleeding
acted solely in obedience to the instinct of self- and he died because of loss of blood. The
preservation, and was in no sense legally offender who caused the wound, although the
responsible for his own death. As to him, it wound caused was only slight, was held
was but the exercise of a choice between two answerable for the death of the victim, even if
evils, and any reasonable person under the the victim would not have died were it not for
same circumstance might have done the same. the fact that he pulled out that packing. The
The accused must, therefore, be considered as principle is that without the wound, the act of
the author of the death of the victim. the physician or the act of the offended party
would not have anything to do with the wound,
This case illustrates that proximate cause does and since the wound was inflicted by the
not require that the offender needs to actually offender, whatever happens on that wound, he
touch the body of the offended party. It is should be made punishable for that.
enough that the offender generated in the mind
of the offended party the belief that made him In Urbano v. IAC, A and B had a quarrel and
risk himself. started hacking each other. B was wounded at
the back. Cooler heads intervened and they
If a person shouted fire, and because of that a were separated. Somehow, their differences
moviegoer jumped into the fire escape and were patched up. A agreed to shoulder all the
died, the person who shouted fire when there expenses for the treatment of the wound of B,
is no fire is criminally liable for the death of that and to pay him also whatever lost of income B
person. may have failed to receive. B, on the other
hand, signed a forgiveness in favor of A and on
In a case where a wife had to go out to the that condition, he withdrew the complaint that
cold to escape a brutal husband and because he filed against A. After so many weeks of
of that she was exposed to the element and treatment in a clinic, the doctor pronounced the
caught pneumonia, the husband was made wound already healed. Thereafter, B went back
criminally liable for the death of the wife. to his farm. Two months later, B came home
and he was chilling. Before midnight, he died
Even though the attending physician may have out of tetanus poisoning. The heirs of B filed a
been negligent and the negligence brought case of homicide against A. The Supreme
about the death of the offending party in Court held that A is not liable. It took into
other words, if the treatment was not negligent, account the incubation period of tetanus toxic.
the offended party would have survived is no Medical evidence were presented that tetanus
defense at all, because without the wound toxic is good only for two weeks. That if,
inflicted by the offender, there would have indeed, the victim had incurred tetanus
been no occasion for a medical treatment. poisoning out of the wound inflicted by A, he
would not have lasted two months. What
Even if the wound was called slight but brought about tetanus to infect the body of B
because of the careless treatment, it was was his working in his farm using his bare
aggravated, the offender is liable for the death hands. Because of this, the Supreme Court
of the victim not only of the slight physical said that the act of B of working in his farm
injuries. Reason without the injury being where the soil is filthy, using his own hands, is
inflicted, there would have been no need for an efficient supervening cause which relieves
any medical treatment. That the medical A of any liability for the death of B. A, if at all, is
treatment proved to be careless or negligent, is only liable for physical injuries inflicted upon B.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 18
victim upon whom the blow was directed, but In mistake of identity, if the crime committed
he was not really the intended victim. There was the same as the crime intended, but on a
was really a mistake in identity. different victim, error in persona does not affect
the criminal liability of the offender. But if the
This is very important because Article 49 crime committed was different from the crime
applies only in a case of error in personae and intended, Article 49 will apply and the penalty
not in a case of abberatio ictus. for the lesser crime will be applied. In a way,
mistake in identity is a mitigating circumstance
In Article 49, when the crime intended is more where Article 49 applies. Where the crime
serious than the crime actually committed or intended is more serious than the crime
vice-versa, whichever crime carries the lesser committed, the error in persona is not a
penalty, that penalty will be the one imposed. mitigating circumstance
But it will be imposed in the maximum period. Praeter intentionem
For instance, the offender intended to commit
homicide, but what was actually committed In People v. Gacogo, 53 Phil 524, two
with parricide because the person he killed by persons quarreled. They had fist blows. The
mistake was somebody related to him within other started to run away and Gacogo went
the degree of relationship in parricide. In such after him, struck him with a fist blow at the
a case, the offender will be charged with back of the head. Because the victim was
parricide, but the penalty that would be running, he lost balance, he fell on the
imposed will be that of homicide. This is pavement and his head struck the cement
because under Article 49, the penalty for the pavement. He suffered cerebral hemorrhage.
lesser crime will be the one imposed, whatever Although Gacogo claimed that he had no
crime the offender is prosecuted under. In any intention of killing the victim, his claim is
event, the offender is prosecuted for the crime useless. Intent to kill is only relevant when the
committed not for the crime intended. victim did not die. This is so because the
purpose of intent to kill is to differentiate the
Illustrations: crime of physical injuries from the crime of
attempted homicide or attempted murder or
A thought of killing B. He positioned himself at frustrated homicide or frustrated murder. But
one corner where B would usually pass. When once the victim is dead, you do not talk of
a figure resembling B was approaching, A hid intent to kill anymore. The best evidence of
and when that figure was near him, he intent to kill is the fact that victim was killed.
suddenly hit him with a piece of wood on the Although Gacogo was convicted for homicide
nape, killing him. But it turned out that it was for the death of the person, he was given the
his own father. The crime committed is benefit of paragraph 3 of Article13, that is, "
parricide, although what was intended was that the offender did not intend to commit so
homicide. Article 49, therefore, will apply grave a wrong as that committed.
because out of a mistake in identity, a crime
was committed different from that which was This is the consequence of praeter
intended. intentionem. In short, praeter intentionem is
mitigating, particularly covered by paragraph 3
In another instance, A thought of killing B. of Article 13. In order however, that the
Instead of B, C passed. A thought that he was situation may qualify as praeter intentionem,
B, so he hit C on the neck, killing the latter. there must be a notable disparity between the
Just the same, the crime intended to be means employed and the resulting felony. If
committed is homicide and what was there is no disparity between the means
committed is actually homicide, Article 49 does employed by the offender and the resulting
not apply. Here, error in personae is of no felony, this circumstance cannot be availed of.
effect. It cannot be a case of praeter intentionem
because the intention of a person is
How does error in personae affect criminal determined from the means resorted to by him
liability of the offender? in committing the crime.
to commit so grave a wrong as that committed. So the offender was prosecuted for the serious
It was held that the fact that 11 wounds were crime of rape with homicide and he was not
inflicted on A's friend is hardly compatible with given the benefit of paragraph 3, Article 13.
the idea that he did not intend to commit so
grave a wrong that committed. Differentiating this first case with the case of
the Chinamana nd his wife, it would seem that
In another instance, the accused was a the difference lies in the means employed by
homosexual. The victim ridiculed or humiliated the offender.
him while he was going to the restroom. He
was so irritated that he just stabbed the victim In praeter intentionem, it is essential that there
at the neck with a ladys comb with a pointed is a notable disparity between the means
handle, killing the victim. His defense was that employed or the act of the offender and the
he did not intend to kill him. He did not intend felony which resulted. This means that the
to commit so grave a wrong as that of killing resulting felony cannot be foreseen from the
him. That contention was rejected, because acts of the offender. If the resulting felony can
the instrument used was pointed. The part of be foreseen or anticipated from the means
the body wherein it was directed was the neck employed, the circumstance of praeter
which is a vital part of the body. In praeter intentionem does not apply.
intentionem, it is mitigating only if there is a
notable or notorious disparity between the For example, if A gave B a karate blow in the
means employed and the resulting felony. In throat, there is no praeter intentionem because
criminal law, intent of the offender is the blow to the throat can result in death.
determined on the basis employed by him and
the manner in which he committed the crime. So also, if A tried to intimidate B by poking a
Intention of the offender is not what is in his gun at the latters back, and B died of a cardiac
mind; it is disclosed in the manner in which he arrest, A will be prosecuted for homicide but
committed the crime. will be given the mitigating circumstance
praeter intentionem.
In still another case, the accused entered the
store of a Chinese couple, to commit robbery.
They hogtied the Chinaman and his wife. Impossible crime
Because the wife was so talkative, one of the
offenders got a pan de sal and put it in her An impossible crime is an act which would be
mouth. But because the woman was trying to an offense against person or property were it
wriggle from the bondage, the pan de sal not for the inherent impossibility of its
slipped through her throat. She died because accomplishment or on account of the
of suffocation. The offender were convicted for employment of inadequate or ineffectual
robbery with homicide because there was a means.
resulting death, although their intention was
only to rob. They were given the benefit of
paragraph 3 of Article 13, that they did not Question & Answer
intend to commit so grave a wrong as that
committed. There was really no intention to
1. Accused was a houseboy in a
bring about the killing, because it was the pan
house where only a spinster resides. It is
de sal they put into the mouth. Had it been a
customary for the spinster to sleep nude
piece of rag, it would be different. In that case,
because her room was warm. It was also the
the Supreme Court gave the offenders the
habit of the houseboy that whenever she
benefit of praeter intentionem as a mitigating
enters her room, the houseboy would follow
circumstance. The means employed is not
and peek into the keyhole. Finally, when the
capable of producing death if only the woman
houseboy could no longer resist the urge, he
chewed the pan de sal.
climbed into the ceiling, went inside the room of
his master, placed himself on top of her and
A man raped a young girl. The young girl was
abused her, not knowing that she was already
shouting so the man placed his hand on the
dead five minutes earlier. Is an impossible
mouth and nose of the victim. He found out
crime committed?
later that the victim was dead already; she died
of suffocation. The offender begged that he
Yes. Before, the act performed by the
had no intention of killing the girl and that his
offender could not have been a crime against
only intention was to prevent her from
person or property. The act performed would
shouting. The Supreme Court rejected the
have been constituted a crime against chastity.
plea saying that one can always expect that a
An impossible crime is true only if the act done
person who is suffocated may eventually die.
by the offender constitutes a crime against
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 21
2. A was driving his car around This is not an impossible crime. That is
Roxas Boulevard when a person hitched a ride. only true if there is nothing more to steal. But
Because this person was exquisitely dressed, A in a department store, where there is plenty to
readily welcomed the fellow inside his car and steal, not only the money inside the vault or
he continued driving. When he reached a safe. The fact that the vault had turned out to
motel, A suddenly swerved his car inside. A be empty is not really inherently impossible to
started kissing his passenger, but he found out commit the crime of robbery. There are other
that his passenger was not a woman but a things that he could take. The crime
man, and so he pushed him out of the car, and committed therefore is attempted robbery,
gave him fist blows. Is an impossible crime assuming that he did not lay his hands on any
committed? If not, is there any crime other article. This could not be trespass to
committed at all? dwelling because there are other things that
can be stolen.
It cannot be an impossible crime,
because the act would have been a crime 4. A and B were lovers. B was
against chastity. The crime is physical injuries willing to marry A except that A is already
or acts of lasciviousness, if this was done married. A thought of killing his wife. He
against the will of the passenger. There are prepared her breakfast every morning, and
two ways of committing acts of lasciviousness. every morning, he placed a little dose of
Under Article 336, where the acts of arsenic poison into the breakfast of the wife.
lasciviousness were committed under The wife consumed all the food prepared by
circumstances of rape, meaning to say, there is her husband including the poison but nothing
employment of violence or intimidation or the happened to the wife. Because of the volume
victim is deprived of reason. Even if the victim of the household chores that the wife had to
is a man, the crime of acts of lasciviousness is attend to daily, she developed a physical
committed. This is a crime that is not limited to condition that rendered her so strong and
a victim who is a woman. Acts of resistance to any kind of poisoning, so the
lasciviousness require a victim to be a woman amount of poison applied to her breakfast has
only when it is committed under circumstances no effect to her. Is there an impossible crime?
of seduction. If it is committed under the
circumstances of rape, the victim may be a No impossible crime is committed
man or a woman. The essence of an because the fact itself stated that what
impossible crime is the inherent impossibility of prevented the poison from taking effect is the
accomplishing the crime or the inherent physical condition of the woman. So it implies
impossibility of the means employed to bring that if the woman was not of such physical
about the crime. When we say inherent condition, the poison would have taken effect.
impossibility, this means that under any and all Hence, it is not inherently impossible to realize
circumstances, the crime could not have the killing. The crime committed is frustrated
materialized. If the crime could have parricide.
materialized under a different set of facts,
employing the same mean or the same act, it is If it were a case of poisoning , an
not an impossible crime; it would be an impossible crime would be constituted if a
attempted felony. person who was thinking that it was a poison
that he was putting into the food of the
Under Article 4, paragraph 2, impossible crime intended victim but actually it was vetsin or
is true only when the crime committed would sugar or soda. Under any and all
have been against person or against property. circumstances, the crime could not have been
It is, therefore, important to know what are the realized. But if due to the quantity of vetsin or
crimes under Title VIII, against persons and sugar or soda, the intended victim developed
those against property under Title X. An LBM and was hospitalized, then it would not be
impossible crime is true only to any of those a case of impossible crime anymore. It would
crimes. be a case of physical injuries, if the act done
does not amount to some other crime under
the Revised Penal Code.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 22
(1) The court cannot convict the accused offender has performed all the acts of
because the acts do not constitute a execution for the accomplishment of a felony.
crime. The proper judgment is Literally, under the article, if the offender has
acquittal, but the court is mandated to performed all the acts of execution which
report to the Chief Executive that said should produce the felony as a consequence
act be made subject of penal legislation but the felony was not realized, then the crime
and why. is already in the frustrated stage. If the
offender has not yet performed all the acts of
(2) Where the court finds the penalty execution there is yet something to be
prescribed for the crime too harsh performed but he was not able to perform all
considering the conditions surrounding the acts of execution due to some cause or
the commission of he crime, the judge accident other than his own spontaneous
should impose the law. The most that desistance, then you have an attempted felony.
he could do is to recommend to the
Chief Executive to grant executive You will notice that the felony begins when the
clemency. offender performs an overt act. Not any act will
mark the beginning of a felony, and therefore, if
the act so far being done does not begin a
STAGES IN THE COMMISSION OF FELONY felony, criminal liability correspondingly does
not begin. In criminal law, there is such a thing
The classification of stages of a felony in as preparatory act. These acts do not give rise
Article 6 are true only to crimes under the to criminal liability.
Revised Penal Code. This does not apply to
crimes punished under special laws. But even
certain crimes which are punished under the Question & Answer
Revised Penal Code do not admit of these
stages.
A and B are husband and wife. A met C
who was willing to marry him, but he is already
The purpose of classifying penalties is to bring
married. A thought of eliminating B and to
about a proportionate penalty and equitable
poison her. So, he went to the drugstore and
punishment. The penalties are graduated
according to their degree of severity. The bought arsenic poison. On the way out, he met
D. D asked him who was sick in the family, A
stages may not apply to all kinds of felonies.
confided to D that he bought the poison to
There are felonies which do not admit of
poison his wife in order to marry C. After that,
division.
they parted ways. D went directly to the police
and reported that A is going to kill his wife. So
the policemen went to As house and found A
Formal crimes
still unwrapping the arsenic poison. The
policemen asked A if he was planning to poison
Formal crimes are crimes which are
B and A said yes. Police arrested him and
consummated in one instance. For example,
charged him with attempted parricide. Is the
in oral defamation, there is no attempted oral
charge correct?
defamation or frustrated oral defamation; it is
always in the consummated stage.
No. Overt act begins when the husband
mixed the poison with the food his wife is going
So also, in illegal exaction under Article 213 is
to take. Before this, there is no attempted
a crime committed when a public officer who is
stage yet.
authorized to collect taxes, licenses or impose
for the government, shall demand an amount
An overt act is that act which if allowed to
bigger than or different from what the law
continue in its natural course would definitely
authorizes him to collect. Under sub-
result into a felony.
paragraph a of Article 213 on Illegal exaction,
the law uses the word demanding. Mere
In the attempted stage, the definition uses the
demanding of an amount different from what
word directly. This is significant. In the
the law authorizes him to collect will already
attempted stage, the acts so far performed
consummate a crime, whether the taxpayer
may already be a crime or it may be just an
pays the amount being demanded or not.
ingredient of another crime. The word
Payment of the amount being demanded is not
"directly" emphasizes the requirement that the
essential to the consummation of the crime.
attempted felony is that which is directly linked
to the overt act performed by the offender, not
The difference between the attempted stage
the felony he has in his mind.
and the frustrated stage lies on whether the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 25
In criminal law, you are not allowed to purpose is only qualified trespass. Qualified
speculate, not to imagine what crime is trespass because he did so by cutting through
intended, but apply the provisions of the law of the screen. There was force applied in order to
the facts given. enter. Other than that, under Article 304 of the
Revised Penal Code, illegal possession of
When a person starts entering the dwelling of picklocks and similar tools is a crime. Thus,
another, that act is already trespassing. But the he can be prosecuted for two crimes: (1)
act of entering is an ingredient of robbery with qualified trespass to dwelling, and (2) illegal
force upon things. You could only hold him possession of picklocks and similar tools; not
liable for attempted robbery when he has complex because one is not necessary means
already completed all acts performed by him to commit the other.
directly leading to robbery. The act of entering
alone is not yet indicative of robbery although
that may be what he may have planned to Desistance
commit. In law, the attempted stage is only that
overt act which is directly linked to the felony Desistance on the part of the offender negates
intended to be committed. criminal liability in the attempted stage.
Desistance is true only in the attempted stage
In US v. Namaja, the accused was arrested of the felony. If under the definition of the
while he was detaching some of the wood felony, the act done is already in the frustrated
panels of a store. He was already able to stage, no amount of desistance will negate
detach two wood panels. To a layman, the only criminal liability.
conclusion that will come to your mind is that
this fellow started to enter the store to steal The spontaneous desistance of the offender
something. He would not be there just to sleep negates only the attempted stage but not
there. But in criminal law, since the act of necessarily all criminal liability. Even though
removing the panel indicates only at most the there was desistance on the part of the
intention to enter. He can only be prosecuted offender, if the desistance was made when
for trespass. The removal of the panelling is acts done by him already resulted to a felony,
just an attempt to trespass, not an attempt to that offender will still be criminally liable for the
rob. Although, Namaja was prosecuted for felony brought about his act. What is negated
attempted robbery, the Supreme Court held it is only the attempted stage, but there may be
is only attempted trespass because that is the other felony constituting his act.
crime that can be directly linked to his act of
removing the wood panel.
There are some acts which are ingredients of a Illustrations:
certain crime, but which are, by themselves,
already criminal offenses. A fired at B and B was hit on the shoulder. But
B's wound was not mortal. What A then did
In abduction, your desire may lead to acts of was to approach B, and told B, Now you are
lasciviousness. In so far the woman being dead, I will kill you. But A took pity and kept
carried is concerned, she may already be the the revolver and left. The crime committed is
victim of lascivious acts. The crime is not attempted homicide and not physical injuries,
attempted abduction but acts of because there was an intention to kill. The
lasciviousness. You only hold him liable for an desistance was with the second shot and
attempt, so far as could be reasonably linked would not affect the first shot because the first
to the overt act done by him. Do not go far shot had already hit B. The second attempt
and imagine what you should do. has nothing to do with the first.
after having commenced the commission of the corruptor gives money to a public officer for the
felony. latter not to prosecute him. The public officer
received the money but just the same, arrested
The attempted felony is erased by desistance him. He received the money to have evidence
because the offender spontaneously desisted of corruption. Do not think that because the
from pursuing the acts of execution. It does corruptor has already delivered the money, he
not mean, however, that there is no more has already performed all the acts of
felony committed. He may be liable for a execution, and, therefore, the corruption is
consummated felony constituted by his act of already beyond the attempted stage. That
trespassing. When A entered the house thinking does away with the concept of the
through the window, which is not intended for crime that it requires two to commit. The
entrance, it is always presumed to be against manner of committing the crime requires the
the will of the owner. If the offender proceeded meeting of the minds between the giver and
to abuse the woman, but the latter screamed, the receiver.
and A went out of the window again, he could
not be prosecuted for qualified trespass. When the giver delivers the money to the
Dwelling is taken as an aggravating supposed receiver, but there is no meeting of
circumstance so he will be prosecuted for the minds, the only act done by the giver is an
attempted rape aggravated by dwelling. attempt. It is not possible for him to perform all
the acts of execution because in the first place,
In deciding whether a felony is attempted or the receiver has no intention of being
frustrated or consummated, there are three corrupted.
criteria involved: Similarly, when a public officer demands a
consideration by official duty, the corruptor
(1) The manner of committing the crime; turns down the demand, there is no bribery.
(2) The elements of the crime; and If the one to whom the demand was made
pretended to give, but he had reported the
(3) The nature of the crime itself. matter to higher authorities, the money was
marked and this was delivered to the public
officer. If the public officer was arrested, do
Manner of committing a crime not think that because the public officer already
had the money in his possession, the crime is
For example, let us take the crime of bribery. already frustrated bribery, it is only attempted
Can the crime of frustrated bribery be bribery. This is because the supposed
committed? No. (Incidentally, the common corruptor has no intention to corrupt. In short,
concept of bribery is that it is the act of one there is no meeting of the minds. On the other
who corrupts a public officer. Actually, bribery hand, if there is a meeting of the minds, there
is the crime of the receiver not the giver. The is consummated bribery or consummated
crime of the giver is corruption of public official. corruption. This leaves out the frustrated stage
Bribery is the crime of the public officer who in because of the manner of committing the
consideration of an act having to do with his crime.
official duties would receive something, or
accept any promise or present in consideration But indirect bribery is always consummated.
thereof.) This is because the manner of consummating
the crime does not admit of attempt or
The confusion arises from the fact that this frustration.
crime requires two to commit -- the giver and
the receiver. The law called the crime of the You will notice that under the Revised Penal
giver as corruption of public official and the Code, when it takes two to commit the crime,
receiver as bribery. Giving the idea that these there could hardly be a frustrated stage. For
are independent crimes, but actually, they instance, the crime of adultery. There is no
cannot arise without the other. Hence, if only frustrated adultery. Only attempted or
one side of the crime is present, only consummated. This is because it requires the
corruption, you cannot have a consummated link of two participants. If that link is there, the
corruption without the corresponding crime is consummated; if such link is absent,
consummated bribery. There cannot be a there is only an attempted adultery. There is no
consummated bribery without the middle ground when the link is there and when
corresponding consummated corruption. If you the link is absent.
have bribery only, it is only possible in the
attempted stage. If you have a corruption only, There are instances where an intended felony
it is possible only in the attempted stage. A could already result from the acts of execution
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 27
already done. Because of this, there are say that the offender in the crime of arson has
felonies where the offender can only be already performed all the acts of execution
determined to have performed all the acts of which would produce the arson as a
execution when the resulting felony is already consequence, unless and until a part of the
accomplished. Without the resulting felony, premises had begun to burn.
there is no way of determining whether the
offender has already performed all the acts or In US v. Valdez, the offender had tried to burn
not. It is in such felonies that the frustrated the premises by gathering jute sacks laying
stage does not exist because without the these inside the room. He lighted these, and
felony being accomplished, there is no way of as soon as the jute sacks began to burn, he
stating that the offender has already performed ran away. The occupants of the room put out
all the acts of execution. An example of this is the fire. The court held that what was
the crime of rape. The essence of the crime is committed was frustrated arson.
carnal knowledge. No matter what the
offender may do to accomplish a penetration, if This case was much the way before the
there was no penetration yet, it cannot be said decision in the case of People v. Garcia was
that the offender has performed all the acts of handed down and the Court of Appeals ruled
execution. We can only say that the offender that there is no frustrated arson. But even
in rape has performed all the acts of execution then, the analysis in the case of US v. Valdez
when he has effected a penetration. Once is correct. This is because, in determining
there is penetration already, no matter how whether the felony is attempted, frustrated or
slight, the offense is consummated. For this consummated, the court does not only
reason, rape admits only of the attempted and consider the definition under Article 6 of the
consummated stages, no frustrated stage. Revised Penal Code, or the stages of
This was the ruling in the case of People v. execution of the felony. When the offender has
Orita. already passed the subjective stage of the
felony, it is beyond the attempted stage. It is
In rape, it requires the connection of the already on the consummated or frustrated
offender and the offended party. No stage depending on whether a felony resulted.
penetration at all, there is only an attempted If the felony did not result, frustrated.
stage. Slightest penetration or slightest
connection, consummated. You will notice this The attempted stage is said to be within the
from the nature of the crime requiring two subjective phase of execution of a felony. On
participants. the subjective phase, it is that point in time
when the offender begins the commission of
This is also true in the crime of arson. It does an overt act until that point where he loses
not admit of the frustrated stage. In arson, the control of the commission of the crime already.
moment any particle of the premises intended If he has reached that point where he can no
to be burned is blackened, that is already an longer control the ensuing consequence, the
indication that the premises have begun to crime has already passed the subjective phase
burn. It does not require that the entire and, therefore, it is no longer attempted. The
premises be burned to consummate arson. moment the execution of the crime has already
Because of that, the frustrated stage of arson gone to that point where the felony should
has been eased out. The reasoning is that follow as a consequence, it is either already
one cannot say that the offender, in the crime frustrated or consummated. If the felony does
of arson, has already performed all the acts of not follow as a consequence, it is already
execution which could produce the destruction frustrated. If the felony follows as a
of the premises through the use of fire, unless consequence, it is consummated.
a part of the premises has begun to burn. If it
has not begun to burn, that means that the The trouble is that, in the jurisprudence
offender has not yet performed all the acts of recognizing the objective phase and the
execution. On the other hand, the moment it subjective phase, the Supreme Court
begins to burn, the crime is consummated. considered not only the acts of the offender,
Actually, the frustrated stage is already but also his belief. That although the offender
standing on the consummated stage except may not have done the act to bring about the
that the outcome did not result. As far as the felony as a consequence, if he could have
stage is concerned, the frustrated stage continued committing those acts but he himself
overlaps the consummated stage. did not proceed because he believed that he
had done enough to consummate the crime,
Because of this reasoning by the Court of Supreme Court said the subjective phase has
Appeals in People v. Garcia, the Supreme passed. This was applied in the case of US v.
Court followed the analysis that one cannot Valdez, where the offender, having already put
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 28
kerosene on the jute sacks, lighted the same, able to perform all the acts of execution
he had no reason not to believe that the fire to bring about physical injuries.
would spread, so he ran away. That act
demonstrated that in his mind, he believed that On the other hand, he also stated that the
he has performed all the acts of execution and crime of physical injuries may be committed in
that it is only a matter of time that the premises the frustrated stage when the offender was
will burn. The fact that the occupant of the able to throw the blow but somehow, the
other room came out and put out the fire is a offended party was able to sidestep away from
cause independent of the will of the the blow. He reasoned out that the crime
perpetrator. would be frustrated because the offender was
able to perform all the acts of execution which
The ruling in the case of US v. Valdez is still would bring about the felony were it not for a
correct. But in the case of People v. Garcia, cause independent of the will of the
the situation is different. Here, the offender perpetrator.
who put the torch over the house of the
offended party, the house being a nipa hut, the The explanation is academic. You will notice
torch which was lighted could easily burn the that under the Revised Penal Code, the crime
roof of the nipa hut. But the torch burned out. of physical injuries is penalized on the basis of
the gravity of the injuries. Actually, there is no
In that case, you cannot say that the offender simple crime of physical injuries. You have to
believed that he had performed all the acts of categorize because there are specific articles
execution. There was not even a single burn that apply whether the physical injuries are
of any instrument or agency of the crime. serious, less serious or slight. If you say
physical injuries, you do not know which article
The analysis made by the Court of Appeals is to apply. This being so, you could not punish
still correct: that they could not demonstrate a the attempted or frustrated stage because you
situation where the offender has performed all do not know what crime of physical injuries
the acts of execution to bring about the crime was committed.
of arson and the situation where he has not yet
performed all the acts of execution. The
weight of the authority is that the crime of Questions & Answers
arson cannot be committed in the frustrated
stage. The reason is because we can hardly
determine whether the offender has performed 1. Is there an attempted slight
all the acts of execution that would result in physical injuries?
arson, as a consequence, unless a part of the
premises has started to burn. On the other If there is no result, you do not know.
hand, the moment a particle or a molecule of Criminal law cannot stand on any speculation
the premises has blackened, in law, arson is or ambiguity; otherwise, the presumption of
consummated. This is because consummated innocence would be sacrificed. Therefore, the
arson does not require that the whole of the commentators opinion cannot stand because
premises be burned. It is enough that any part you cannot tell what particular physical injuries
of the premises, no matter how small, has was attempted or frustrated unless the
begun to burn. consequence is there. You cannot classify the
physical injuries.
There are also certain crimes that do not admit
of the attempted or frustrated stage, like 2. A threw muriatic acid on the face
physical injuries. One of the known of B. The injuries would have resulted in
commentators in criminal law has deformity were it not for timely plastic surgery.
advanced the view that the crime of After the surgery, B became more handsome.
What crime is committed? Is it attempted,
physical injuries can be committed in the
frustrated or consummated?
attempted as well as the frustrated
stage. He explained that by going
The crime committed here is serious
through the definition of an attempted physical injuries because of the deformity.
and a frustrated felony under Article 6, if When there is deformity, you disregard the
a person who was about to give a fist healing duration of the wound or the medical
blow to another raises his arms, but treatment required by the wound. In order that
before he could throw the blow, in law, a deformity can be said to exist, three
somebody holds that arm, there would be factors must concur:
attempted physical injuries. The reason
for this is because the offender was not (1) The injury should bring about the ugliness;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 29
turned out that he is not authorized at all and is it, the control is complete. You do not have to
interested only in the wallet, not the table. The go out of the compound to complete the taking
crime is not yet consummated. It is only or the control.
frustrated because as far as the table is
concern, it is the confines of this room that is This is very decisive in the problem because in
the container. As long as he has not taken this most problems given in the bar, the offender,
table out of the four walls of this room, the after having taken the object out of the
taking is not complete. container changed his mind and returned it. Is
he criminally liable? Do not make a mistake by
A man entered a room and found a chest on saying that there is a desistance. If the crime
the table. He opened it found some valuables is one of theft, the moment he brought it out, it
inside. He took the valuables, put them in his was consummated. The return of the thing
pocket and was arrested. In this case, theft is cannot be desistance because in criminal law,
consummated. desistance is true only in the attempted stage.
You cannot talk of desistance anymore when it
But if he does not take the valuables but lifts is already in the consummated stage. If the
the entire chest, and before he could leave the offender has already acquired complete control
room, he was apprehended, there is frustrated of what he intended to take, the fact that he
theft. changed his mind and returned the same will
no longer affect his criminal liability. It will only
If the thing is stolen from a compound or from affect the civil liability of the crime because he
a room, as long as the object has not been will no longer be required to pay the object. As
brought out of that room, or from the perimeter far as the crime committed is concerned, the
of the compound, the crime is only frustrated. offender is criminally liable and the crime is
This is the confusion raised in the case of US consummated theft.
v. Dio compared with People v. Adio and
People v. Espiritu. Illustration:
In US v. Dio, the accused loaded boxes of A and B are neighbors. One evening, A
rifle on their truck. When they were on their entered the yard of B and opened the chicken
way out of the South Harbor, they were coop where B keeps his fighting cocks. He
checked at the checkpoint, so they were not discovered that the fighting cocks were not
able to leave the compound. It was held that physically fit for cockfighting so he returned it.
what was committed was frustrated Theft. The crime is consummated theft. The will of the
owner is to keep the fighting cock inside the
In People v. Espiritu, the accused were on chicken coop. When the offender succeeded
their way out of the supply house when they in bringing the cock out of the coop, it is clear
were apprehended by military police who found that his will completely governed or
them secreting some hospital linen. It was superseded the will of the owner to keep such
held that what was committed was cock inside the chicken coop. Hence, the
consummated theft. crime was already consummated, and being
consummated, the return of the owners
The emphasis, which was erroneously laid in property is not desistance anymore. The
some commentaries, is that, in both cases, the offender is criminally liable but he will not be
offenders were not able to pass the civilly liable because the object was returned.
checkpoint. But why is it that in one, it is
frustrated and in the other, it is consummated? When the receptacle is locked or sealed, and
the offender broke the same, in lieu of theft,
In the case of US v. Dio, the boxes of rifle the crime is robbery with force upon things.
were stocked file inside the compound of the However, that the receptacle is locked or
South Harbor. As far as the boxes of rifle are sealed has nothing to do with the stage of the
concerned, it is the perimeter of the compound commission of the crime. It refers only to
that is the container. As long as they were not whether it is theft or robbery with force upon
able to bring these boxes of rifle out of the things.
compound, the taking is not complete. On the
other hand, in the case of People v. Espiritu,
what were taken were hospital linens. These Nature of the crime itself
were taken from a warehouse. Hospital linens
were taken from boxes that were diffused or In crimes involving the taking of human life
destroyed and brought out of the hospital. parricide, homicide, and murder in the
From the moment they took it out of the boxes definition of the frustrated stage, it is
where the owner or the possessor had placed indispensable that the victim be mortally
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 31
wounded. Under the definition of the frustrated where the conspiracy and proposal to commit
stage, to consider the offender as having to them are punishable.
performed all the acts of execution, the acts
already done by him must produce or be
capable of producing a felony as a Question & Answer
consequence. The general rule is that there
must be a fatal injury inflicted, because it is
Union A proposed acts of sedition to
only then that death will follow.
Union B. Is there a crime committed?
Assuming Union B accepts the proposal, will
If the wound is not mortal, the crime is only
your answer be different?
attempted. The reason is that the wound
inflicted is not capable of bringing about the
There is no crime committed. Proposal
desired felony of parricide, murder or homicide
to commit sedition is not a crime. But if Union
as a consequence; it cannot be said that the
B accepts the proposal, there will be
offender has performed all the acts of
conspiracy to commit sedition which is a crime
execution which would produce parricide,
under the Revised Penal Code.
homicide or murder as a result.
When the conspiracy is only a basis of
An exception to the general rule is the so-
incurring criminal liability, there must be an
called subjective phase. The Supreme Court
overt act done before the co-conspirators
has decided cases which applied the
become criminally liable.
subjective standard that when the offender
himself believed that he had performed all the
When the conspiracy itself is a crime, this
acts of execution, even though no mortal
cannot be inferred or deduced because there
wound was inflicted, the act is already in the
is no overt act. All that there is the agreement.
frustrated stage.
On the other hand, if the co-conspirator or any
of them would execute an overt act, the crime
would no longer be the conspiracy but the
CONSPIRACY AND PROPOSAL TO
overt act itself.
COMMITE A FELONY
showed up, but he tried to prevent the to each other. Do not think that participants
commission of the crime are always known to each other.
When the conspiracy is just a basis of incurring A law student resented the fact that his brother
criminal liability, however, the same may be was killed by A. He hired B to kill A and offered
deduced or inferred from the acts of several him P50,000.00. He disclosed to B that A was
offenders in carrying out the commission of the being arraigned in the City Hall of Manila and
crime. The existence of a conspiracy may be told him to execute the plan on the following
reasonably inferred from the acts of the day. In the evening of that same day, the law
offenders when such acts disclose or show a student changed his mind so he immediately
common pursuit of the criminal objective. This went to the police and told them to dispatch
was the ruling in People v. Pinto, 204 SCRA police officers to prevent B from committing the
9. crime. Unfortunately, the police were caught in
traffic causing their delay, so that when they
Although conspiracy is defined as two or more reached the place, B had already killed A. In
person coming to an agreement regarding the this case, there was no proposal but a
commission of a felony and deciding to commit conspiracy. They have conspired to execute a
it, the word person here should not be crime but the crime involved here is murder
understood to require a meeting of the co- and a conspiracy to commit murder is not a
conspirator regarding the commission of the crime in itself but merely a basis for incurring
felony. A conspiracy of the second kind can be criminal liability. This is just a preparatory act,
inferred or deduced even though they have not and his desistance negates criminal liability.
met as long as they acted in concert or
simultaneously, indicative of a meeting of the Proposal is true only up to the point where the
minds toward a common goal or objective. party to whom the proposal was made has not
yet accepted the proposal. Once the proposal
Conspiracy is a matter of substance which was accepted, a conspiracy arises. Proposal
must be alleged in the information, otherwise, is unilateral, one party makes a proposition to
the court will not consider the same. the other; conspiracy is bilateral, it requires two
parties.
In People v. Laurio, 200 SCRA 489, it was
held that it must be established by positive and As pointed out earlier, desistance is true only in
conclusive evidence, not by conjectures or the attempted stage. Before this stage, there
speculations. is only a preparatory stage. Conspiracy is only
in the preparatory stage.
In Taer v. CA, 186 SCRA 5980, it was held
that mere knowledge, acquiescence to, or The Supreme Court has ruled that one who
approval of the act, without cooperation or at desisted is not criminally liable. When a
least, agreement to cooperate, is not enough person has set foot to the path of wickedness
to constitute a conspiracy. There must be an and brings back his foot to the path of
intentional participation in the crime with a view righteousness, the law shall reward him for
to further the common felonious objective. doing so.
When several persons who do not know each Where there are several persons who
other simultaneously attack the victim, the act participated, like in a killing, and they attacked
of one is the act of all, regardless of the degree the victim simultaneously, so much so that it
of injury inflicted by any one of them. All will be cannot be known what participation each one
liable for the consequences. A conspiracy is had, all these participants shall be considered
possible even when participants are not known
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 33
as having acted in conspiracy and they will be longer accurate to think that when there is a
held collectively responsible. conspiracy, all are principals.
Do not search for an agreement among the
participants. If they acted simultaneously to Notwithstanding that there is conspiracy, a co-
bring about their common intention, conspiracy conspirator may be held liable only as an
exists. And when conspiracy exists, do not accomplice. That means the penalty which
consider the degree of participation of each shall be imposed upon him is one degree
conspirator because the act of one is the act of lower.
all. As a general rule, they have equal criminal For example, there was a planned robbery, and
responsibility. the taxi driver was present during the planning.
There, the conspirators told the taxi driver that
they are going to use his taxicab in going to the
Question & Answer place of robbery. The taxi driver agreed but
said, I will bring you there, and after
committing the robbery I will return later. The
There are several offenders who acted taxi driver brought the conspirators where the
simultaneously. When they fled, a victim was robbery would be committed. After the robbery
found dead. Who should be liable for the was finished, he took the conspirators back to
killing if who actually killed the victim is not his taxi and brought them away. It was held
known? that the taxi driver was liable only as an
accomplice. His cooperation was not really
There is collective responsibility here. indispensable. The robbers could have
Without the principle of conspiracy, nobody engaged another taxi. The taxi driver did not
would be prosecuted; hence, there is the rule really stay during the commission of the
on collective responsibility since it cannot be
robbery. At most, what he only extended was
ascertained who actually killed the victim. his cooperation. That is why he was given only
that penalty for an accomplice.
There is conspiracy when the offenders acted
simultaneously pursuing a common criminal A, B, and C, under the influence of marijuana,
design; thus, acting out a common criminal broke into a house because they learned that
intent. the occupants have gone on an excursion.
They ransacked the house. A got a colored
Illustration: TV, B saw a camera and took that, and C
found a can of salmon and took that. In the
A, B and C have been courting the same lady crime of robbery with force upon things, the
for several years. On several occasions, they penalty is based on the totality of the value of
even visited the lady on intervening hours. the personal property taken and not on the
Because of this, A, B and C became hostile individual property taken by him.
with one another. One day, D invited the
young lady and she accepted the invitation. In Siton v. CA, it was held that the idea of a
Eventually, the young lady agreed to marry D. conspiracy is incompatible with the idea of a
When A, B and C learned about this, they all free for all. There is no definite opponent or
stood up to leave the house of the young lady definite intent as when a basketball crowd
feeling disappointed. When A looked back at beats a referee to death.
the young lady with D, he saw D laughing
menacingly. At that instance, A stabbed D. C
and B followed. In this case, it was held that Composite crimes
conspiracy was present.
Composite crimes are crimes which, in
The common notion is that when there is substance, consist of more than one crime but
conspiracy involved, the participants are in the eyes of the law, there is only one crime.
punished as principals. This notion is no For example, the crimes of robbery with
longer absolute. In the case of People v. homicide, robbery with rape, robbery with
Nierra, the Supreme Court ruled that even physical injuries.
though there was conspiracy, if a co-
conspirator merely cooperated in the In case the crime committed is a composite
commission of the crime with insignificant or crime, the conspirator will be liable for all the
minimal acts, such that even without his acts committed during the commission of the
cooperation, the crime could be carried out as crime agreed upon. This is because, in the
well, such co-conspirator should be punished eyes of the law, all those acts done in
as an accomplice only. The reason given is pursuance of the crime agreed upon are acts
that penal laws always favor a milder form of which constitute a single crime.
responsibility upon an offender. So it is no
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 34
Exception to the exception: In acts constituting Under Article 6., felonies are
a single indivisible offense, even though the classified as attempted felony when
co-conspirator performed different acts the offender commences the
bringing about the composite crime, all will be commission of a felony directly by
liable for such crime. They can only evade overt acts, and does not perform all
responsibility for any other crime outside of that the acts of execution which should
agreed upon if it is proved that the particular produce the felony by reason of
conspirator had tried to prevent the some cause or accident other than
commission of such other act. his own spontaneous desistance;
frustrated felony when the offender
The rule would be different if the crime commences the commission of a
committed was not a composite crime. felony as a consequence but which
would produce the felony as a
Illustration: consequence but which
nevertheless do not produce the
A, B and C agreed to kill D. When they saw felony by reason of causes
the opportunity, A, B and C killed D and after independent of the perpetrator; and,
that, A and B ran into different directions. C consummated felony when all the
inspected the pocket of the victim and found elements necessary for its execution
that the victim was wearing a ring a diamond are present.
ring and he took it. The crimes committed
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 35
If the penalty is exactly P200.00, apply Article In People v. Rodriguez, it was held that the
26. It is considered as correctional penalty and use of arms is an element of rebellion, so a
it prescribes in 10 years. If the offender is rebel cannot be further prosecuted for
apprehended at any time within ten years, he possession of firearms. A violation of a special
can be made to suffer the fine. law can never absorb a crime punishable
under the Revised Penal Code, because
This classification of felony according to gravity violations of the Revised Penal Code are more
is important with respect to the question of serious than a violation of a special law. But a
prescription of crimes. crime in the Revised Penal Code can absorb a
crime punishable by a special law if it is a
In the case of light felonies, crimes prescribe in necessary ingredient of the crime in the
two months. After two months, the state loses Revised Penal Code.
the right to prosecute unless the running period In the crime of sedition, the use of firearms is
is suspended. If the offender escapes while in not an ingredient of the crime. Hence, two
detention after he has been loose, if there was prosecutions can be had: (1) sedition; and (2)
already judgment that was passed, it can be illegal possession of firearms.
promulgated even if absent under the New
Rules on Criminal Procedure. If the crime is But do not think that when a crime is punished
correctional, it prescribes in ten years, except outside of the Revised Penal Code, it is
arresto mayor, which prescribes in five years. already a special law. For example, the crime
of cattle-rustling is not a mala prohibitum but a
modification of the crime theft of large cattle.
So Presidential Decree No. 533, punishing
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 36
In justifying and exempting circumstances, Under Article 219, discovering secrets through
there is no criminal liability. When an accused seizure of correspondence of the ward by their
invokes them, he in effect admits the guardian is not penalized.
commission of a crime but tries to avoid the
liability thereof. The burden is upon him to Under Article 332, in the case of theft,
establish beyond reasonable doubt the swindling and malicious mischief, there is no
required conditions to justify or exempt his acts criminal liability but only civil liability, when the
from criminal liability. What is shifted is only offender and the offended party are related as
the burden of evidence, not the burden of spouse, ascendant, descendant, brother and
proof. sister-in-law living together or where in case
the widowed spouse and the property involved
Justifying circumstances contemplate is that of the deceased spouse, before such
intentional acts and, hence, are incompatible property had passed on to the possession of
with dolo. Exempting circumstances may be third parties.
invoked in culpable felonies.
Under Article 344, in cases of seduction,
abduction, acts of lasciviousness, and rape,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 37
the marriage of the offended party shall Drugs Act. Is he criminally liable? No. He was
extinguish the criminal action. only there upon instigation of the law
enforcers. On his own, he would not be there.
The reason he is there is because he
Absolutory cause has the effect of an cooperated with the law enforcers. There is
exempting circumstance and they are absence of criminal intent.
predicated on lack of voluntariness like
instigation. Instigation is associated with If the law enforcer were able to enter the
criminal intent. Do not consider culpa in house and mingle there, nobody would offer
connection with instigation. If the crime is him a cigarette because he is unknown. When
culpable, do not talk of instigation. In he saw somebody, he pleaded to spare him a
instigation, the crime is committed with dolo. It smoke so this fellow handed to him the
is confused with entrapment. cigarette he was smoking and found out that it
Entrapment is not an absolutory cause. was loaded with a dangerous drug. He
Entrapment does not exempt the offender or arrested the fellow. Defense was that he
mitigate his criminal liability. But instigation would not give a cigarette if he was not asked.
absolves the offender from criminal liability Is he criminally liable? Yes. This is a case of
because in instigation, the offender simply acts entrapment and not instigation. Even if the law
as a tool of the law enforcers and, therefore, enforcer did not ask for a cigarette, the
he is acting without criminal intent because offender was already committing a crime. The
without the instigation, he would not have done law enforcer ascertained if it is a violation of
the criminal act which he did upon instigation the Dangerous Drugs Act. The means
of the law enforcers. employed by the law enforcer did not make the
accused commit a crime. Entrapment is not an
Difference between instigation and entrapment absolutory cause because in entrapment, the
offender is already committing a crime.
In instigation, the criminal plan or design exists
in the mind of the law enforcer with whom the In another instance, a law enforcer pretended
person instigated cooperated so it is said that to be a buyer of marijuana. He approached a
the person instigated is acting only as a mere person suspected to be a pusher and prevailed
instrument or tool of the law enforcer in the upon this person to sell him two kilos of dried
performance of his duties. marijuana leaves and this fellow gave him and
delivered them. He apprehended the fellow.
On the other hand, in entrapment, a criminal Defense is instigation, because he would not
design is already in the mind of the person have come out for the marijuana leaves if the
entrapped. It did not emanate from the mind of law enforcer had not instigated him. It is a
the law enforcer entrapping him. Entrapment case of entrapment because the fellow is
involves only ways and means which are laid already committing the crime from the mere
down or resorted to facilitate the apprehension fact that he is possessing marijuana. Even
of the culprit. without selling, there is a crime committed by
him: illegal possession of dangerous drugs.
Illustrations: How can one sell marijuana if he is not in
possession thereof. The law enforcer is only
An agent of the narcotics command had been ascertaining if this fellow is selling marijuana
tipped off that a certain house is being used as leaves, so this is entrapment, not instigation.
an opium den by prominent members of the Selling is not necessary to commit the crime,
society. The law enforcers cannot themselves mere possession is already a crime.
penetrate the house because they do not
belong to that circle so what they did was to A fellow wants to make money. He was
convince a prominent member of society to approached by a law enforcer and was asked
visit such house to find out what is really if he wanted to deliver a package to a certain
happening inside and that so many cars were person. When that fellow was delivering the
congregating there. The law enforcers told the package, he was apprehended. Is he
undercover man that if he is offered a criminally liable? This is a case of instigation;
cigarette, then he should try it to find out he is not committing a crime.
whether it is loaded with dangerous drugs or
not. This fellow went to the place and mingled A policeman suspected a fellow selling
there. The time came when he was offered a marijuana. The law enforcer asked him, Are
stick of cigarette and he tried it to see if the you selling that? How much? Could you bring
cigarette would affect him. Unfortunately, the that to the other fellow there? When he
raid was conducted and he was among those brought it there, the person, who happens to
prosecuted for violation of the Dangerous be a law enforcer, to whom the package was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 38
brought to found it to be marijuana. Even and if the circumstance is not among those
without bringing, he is already possessing the enumerated in Article 12, refer to the
marijuana. The fact that he was appointed to circumstance as an absolutory cause.
another person to find out its contents, is to
discover whether the crime is committed. This Mistake of fact is not absolutory cause. The
is entrapment. offender is acting without criminal intent. So in
mistake of fact, it is necessary that had the
The element which makes instigation an facts been true as the accused believed them
absolutory cause is the lack of criminal intent to be, this act is justified. If not, there is
as an element of voluntariness. criminal liability, because there is no mistake of
fact anymore. The offender must believe he is
If the instigator is a law enforcer, the person performing a lawful act.
instigated cannot be criminally liable, because
it is the law enforcer who planted that criminal Extenuating circumstances
mind in him to commit the crime, without which
he would not have been a criminal. If the The effect of this is to mitigate the criminal
instigator is not a law enforcer, both will be liability of the offender. In other words, this has
criminally liable, you cannot have a case of the same effect as mitigating circumstances,
instigation. In instigation, the private citizen only you do not call it mitigating because this is
only cooperates with the law enforcer to a not found in Article 13.
point when the private citizen upon instigation
of the law enforcer incriminates himself. It Illustrations:
would be contrary to public policy to prosecute
a citizen who only cooperated with the law An unwed mother killed her child in order to
enforcer. The private citizen believes that he is conceal a dishonor. The concealment of
a law enforcer and that is why when the law dishonor is an extenuating circumstance
enforcer tells him, he believes that it is a civil insofar as the unwed mother or the maternal
duty to cooperate. grandparents is concerned, but not insofar as
the father of the child is concerned. Mother
If the person instigated does not know that the killing her new born child to conceal her
person is instigating him is a law enforcer or he dishonor, penalty is lowered by two degrees.
knows him to be not a law enforcer, this is not Since there is a material lowering of the
a case of instigation. This is a case of penalty or mitigating the penalty, this is an
inducement, both will be criminally liable. extenuating circumstance.
In entrapment, the person entrapped should The concealment of honor by mother in the
not know that the person trying to entrap him crime of infanticide is an extenuating
was a law enforcer. The idea is incompatible circumstance but not in the case of parricide
with each other because in entrapment, the when the age of the victim is three days old
person entrapped is actually committing a and above.
crime. The officer who entrapped him only lays
down ways and means to have evidence of the In the crime of adultery on the part of a married
commission of the crime, but even without woman abandoned by her husband, at the
those ways and means, the person entrapped time she was abandoned by her husband, is it
is actually engaged in a violation of the law. necessary for her to seek the company of
another man. Abandonment by the husband
Instigation absolves the person instigated from does not justify the act of the woman. It only
criminal liability. This is based on the rule that a extenuates or reduces criminal liability. When
person cannot be a criminal if his mind is not the effect of the circumstance is to lower the
criminal. On the other hand, entrapment is not penalty there is an extenuating circumstance.
an absolutory cause. It is not even mitigating.
A kleptomaniac is one who cannot resist the
In case of somnambulism or one who acts temptation of stealing things which appeal to
while sleeping, the person involved is definitely his desire. This is not exempting. One who is
acting without freedom and without sufficient a kleptomaniac and who would steal objects of
intelligence, because he is asleep. He is his desire is criminally liable. But he would be
moving like a robot, unaware of what he is given the benefit of a mitigating circumstance
doing. So the element of voluntariness which analogous to paragraph 9 of Article 13, that of
is necessary in dolo and culpa is not present. suffering from an illness which diminishes the
Somnambulism is an absolutory cause. If exercise of his will power without, however,
element of voluntariness is absent, there is no depriving him of the consciousness of his act.
criminal liability, although there is civil liability,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 39
So this is an extenuating circumstance. The killed, this can only be justified if it was done to
effect is to mitigate the criminal liability. save the life of the person defending or the
person being defended. The equation is life
was taken to save life.
Distinctions between justifying
circumstances and exempting
circumstances Self Defense
produce such danger as would really be wrest the bolo away and started hacking the
imminent to the honor of the woman. other woman. It was held that the hacking was
not justified. Actually, when she killed the
Apparently, under the Revised Penal Code, the supposed unlawful aggressor, her life and limb
honor of a woman in respect of her defense is were no longer in imminent danger. That is the
equated with her virginity. focal point.
In US v. Jaurigue, it was held that it was not At the time the accused killed the supposed
possible to rape the accused because the unlawful aggressor, was her life in danger? If
whole thing transpired in the church, where the answer is no, there is no self-defense. But
there were so many people. Therefore, her while there may be no justifying circumstance,
availing of defense of honor is not tenable. do not forget the incomplete self-defense. This
She could not possibly be raped in that place. is a mitigating circumstance under paragraph 1
Defense of honor here is being equated with of Article 13. This mitigating circumstance is
one of abuse of chastity of a woman. In this either privileged or ordinary. If ordinary, it has
case, the offended party placed his hand on the effect of reducing the imposable penalty to
the thigh of the woman who was then praying. the minimum period. But if it is privileged, it
There was already some sort of aggression but has the effect of lowering the penalty by one to
it was not enough to warrant the act resorted two degrees, depending on how the court will
to by the accused in getting a small knife from regard the absence or presence of conditions
her bag and thrusting it on the chest of the to justify the act.
offended party.
in defense of relative. This is only required in If a majority of the requisites needed to justify
defense of strangers. the act or exempt from criminal liability are
present, the offender shall be given the benefit
of a privileged mitigating circumstance. The
Incomplete self-defense or incomplete penalty shall be lowered by one or two
justifying circumstance or incomplete degrees. When there are only two conditions
exempting circumstances to justify the act or to exempt from criminal
liability, the presence of one shall be regarded
When you say incomplete justifying as the majority.
circumstance, it means that not all the
requisites to justify the act are present or not
the requisites to exempt from criminal liability State of necessity
are present.
The state of necessity must not have been
How, if at all, may incomplete self-defense created by the one invoking the justifying
affect the criminal liability of the offender? circumstances. For example, A drove his car
beyond the speed limit so much so that when
If the question specifically refers to incomplete he reached the curve, his vehicle skidded
self-defense, defense of relative or defense of towards a ravine. He swerved his car towards
stranger, you have to qualify your answer. a house, destroying it and killing the occupant
therein. A cannot be justified because the state
First, to have incomplete self-defense, the of necessity was brought about by his own
offended party must be guilty of unlawful felonious act.
aggression. Without this, there can be no
incomplete self-defense, defense of relative, or Civil liability referred to in a state of necessity is
defense of stranger. based not on the act committed but on the
benefit derived from the state of necessity. So
Second, if only the element of unlawful the accused will not be civilly liable if he did not
aggression is present, the other requisites receive any benefit out of the state of
being absent, the offender shall be given only necessity. On the other hand, persons who did
the benefit of an ordinary mitigating not participate in the damage or injury would
circumstance. be pro tanto civilly liable if they derived benefit
out of the state of necessity.
Third, if aside from the element of unlawful
aggression another requisite, but not all, are Civil liability is based on the benefit derived
present, the offender shall be given the benefit and not on the act, damage or injury caused.
of a privileged mitigating circumstance. In It is wrong to treat this as an exception to the
such a case, the imposable penalty shall be rule that in justifying circumstances, there is no
reduced by one or two degrees depending criminal nor civil liability, on the principle that
upon how the court regards the importance of no one should enrich himself at the expense
the requisites present. Or absent. of another.
because the Revised Administrative Code, as offender is a minor yet no longer entitled to a
defined is limited to mental aberration of the mitigating circumstance. An offender below 18
mind. This was the ruling in People v. Dungo. is always entitled to a mitigating or exempting
circumstance.
In People v. Rafanan, decided on November
21, 1991, the following are the two tests for How does the minority of the offender affect his
exemption on grounds of insanity: criminal liability?
(1) The test of cognition, or whether the (1) If the offender is within the bracket of
accused acted with complete nine years old exactly or less, he is
deprivation of intelligence in committing exempt from criminal liability but not
said crime; and from civil liability. This type of offenders
are absolutely exempt. Even if the
(2) The test of volition, or whether the offender nine years or below acted with
accused acted in total deprivation of discernment, this should not be taken
freedom of will. against him because in this age
bracket, the exemption is absolute.
Schizoprenia (dementia praecox) can only be
considered a mitigating circumstance because (2) If over nine but below 15, a distinction
it does not completely deprive the offender of has to be made whether the offender
consciousness of his acts. acted with or without discernment. The
burden is upon the prosecution to prove
that the offender acted with
discernment. It is not for the minor to
Minority prove that he acted without
discernment. All that the minor has to
In exempting circumstances, the most show is that he is within the age
important issue is how the minority of the bracket. If the prosecution would want
offender affected his criminal liability. It seems to pin criminal liability on him, it has to
that the view of many is that when the offender prove that the crime was committed
is a youthful offender, he must necessarily be with discernment. Here, if the offender
confined in a reformatory. This is wrong. A was exempt from criminal liability
youthful offender can only be confined in a because the prosecution was not able
reformatory upon order of the court. Under the to prove that the offender acted with
amendment to Presidential Decree No. 603, discernment, he is only civilly liable but
Presidential Decree No. 1179 requires that he will be committed to the surveillance
before a youthful offender may be given the of his parents who will be required to
benefit if a suspension of sentence, there must report to the court periodically on the
be an application filed with the court which progress or development of the
should pronounce sentence. Note that the offender.
commitment of the offender in a reformatory is
just a consequence of the suspension of the If the offender is proven to have acted
sentence. If the sentence is not suspended, with discernment, this is where the
there is no commitment in a reformatory. The court may give him the benefit of a
commitment is in a penitentiary, since suspended sentence. He may be given
suspension of sentence requires certain the benefit of a suspended sentence
conditions: under the conditions mentioned earlier
and only if he would file an application
(1) The crime committed should not be therefor.
punishable by reclusion perpetua or
death penalty; Suspension of sentence is not automatic. If
the youthful offender has filed an application
(2) The offender should not have been given therefor.
the benefit of a suspended
sentence before. This means he is (3) If at the time the judgment is to be
a first timer; promulgated he is already above 18, he
cannot avail of a suspended sentence.
(3) He must be below 18 years old because a The reason is because if the sentence
youthful offender is one who is below 18. were to be suspended, he would be
committed in a reformatory. Since he
Note that the age of majority has been reduced cannot be committed to a reformatory
to 18. There is no more bracket where the anymore because he is not less than 18
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 44
years old, he would have to be The driver is not under obligation to defray the
committed to a penitentiary. That medical expenses.
means promulgation of the sentence
shall not be suspended. If the However, correlate paragraph 4 of Article 12
sentence should not be suspended, with the second paragraph of Article 275.
although the minor may be qualified, Article 275 gives you the crime of abandoning
the court will promulgate the sentence the victim of ones own accident. It is a crime.
but the minor shall be entitled to the Here, the accident referred to in paragraph 2 of
reduction of the penalty by at least two Article 275 is in the concept of paragraph 4 of
degrees. Article 12. This means that the offender must
be performing a lawful act, that he was doing it
When the offender is over nine but with due care but somehow, injury resulted by
below 15, the penalty to be imposed is mere accident without fault or intention of
discretionary on the court, but lowered causing it.
by at least two degrees. It may be
lowered by three or four degrees, If at the very beginning, the offender was
depending upon whether the court negligent, you do not apply Article 275,
deems best for the interest of the paragraph 2. Instead, it will be Article 365 on
offender. The limitation that it should criminal negligence. Notice that in the last
be lowered by at least two degrees is paragraph of Article 365, in the case of the so-
just a limitation on the power of the called hit and run drivers who have injured
court to reduce the penalty. It cannot somebody and would abandon the victim of
be less than two degrees. the accident, the penalty is qualified to a higher
degree. Here, under paragraph 4 of Article 12,
(4) If the offender is 15 years old and the infliction of the injury by mere accident
above but below 18, there is no does not give rise to a criminal or civil liability,
exemption anymore but he is also given but the person who caused the injury is duty
the benefit of a suspended sentence bound to attend to the person who was injured.
under the conditions stated earlier and If he would abandon him, it is in that
if at the time the sentence is abandonment that the crime arises which is
promulgated, he is not 18 years old or punished under the second paragraph of
over yet. If the sentence is Article 275.
promulgated, the court will impose a
penalty one degree lower. This time it is
fixed. It is to be imposed one degree Compulsion of irresistible force and under
lower and in the proper periods subject the impulse of an uncontrollable fear
to the rules in Article 64.
The offender must be totally deprived of
freedom. If the offender has still freedom of
Damnum absque injuria choice, whether to act or not, even if force was
employed on him or even if he is suffering from
Under Article 12, paragraph 4, the offender is uncontrollable fear, he is not exempt from
exempt not only from criminal but also from criminal liability because he is still possessed
civil liability. This paragraph embodies the with voluntariness. In exempting
Latin maxim damnum absque injuria. circumstances, the offender must act without
voluntariness.
Illustration:
In a situation where the offender would
A person who is driving his car within the otherwise be exempt, but the requisites for
speed limit, while considering the condition of exemption are not all present, the offender is
the traffic and the pedestrians at that time, still entitled to a mitigating circumstance of
tripped on a stone with one of his car tires. incomplete exemption under paragraph 1 of
The stone flew hitting a pedestrian on the Article 13. Apply the rule if majority of the
head. The pedestrian suffered profuse requisites to exempt from criminal liability are
bleeding. What is the liability of the driver? present. The offender shall be given the
benefit of privelege mitigating circumstances.
There is no civil liability under paragraph 4 of That means that the penalty prescribed of the
Article 12. Although, this is just an exempting crime committed shall be reduced by one or
circumstance, where generally there is civil two degrees in accordance with Article 69 of
liability, yet, in paragraph 4 of Article 12, there the Revised Penal Code. If less than a
is no civil liability as well as criminal liability. majority of the requisites for exemption are
present, the offender shall be given only the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 45
Illustration:
Sufficient threat or provocation
The accused went to a barrio dance. In that
This is mitigating only if the crime was
gathering, there was a bully and he told the
committed on the very person who made the
accused that he is not allowed to go inside.
threat or provocation. The common set-up
The accused tried to reason out but the bully
given in a bar problem is that of provocation
slapped him several times in front of so many
was given by somebody. The person provoked
people, some of whom were ladies who were
cannot retaliate against him; thus, the person
being courted by the accused, so he was
provoked retaliated on a younger brother or on
humiliated and embarrassed. However, he
an elder father. Although in fact, there is
cannot fight the bully at that time because the
sufficient provocation, it is not mitigating
latter was much bigger and heavier. Accused
because the one who gives the provocation is
had no choice but to go home. When he saw
not the one against whom the crime was
the bully again, this time, he was armed with a
committed.
knife and he stabbed the bully to death. The
evidence for the accused showed that when he
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 47
went home, he was not able to sleep committed the crime, his age, education and
throughout the night, thinking of the humiliation social status will be considered.
and outrage done to him, despite the lapse of
about 22 hours. The Supreme Court gave him Here, in vindication of a grave offense, the
the benefit of this mitigating circumstance. The vindication need not be done by the person
reason stated by the Supreme Court for upon whom the grave offense was committed.
allowing the accused to be benefited by this So, unlike in sufficient threat or provocation
mitigating circumstance is that the effect of the where the crime should be inflicted upon the
humiliation and outrage emitted by the very person who made the threat or
offended party as a provocation upon the provocation, here, it need not be the same
accused was still present when he committed person who committed the grave offense or
the crime and, therefore, the reason for who was offended by the wrong done by the
paragraph 4 still applies. The accused was still offended party.
acting under a diminished self control because
he was thinking of the humiliation he suffered The word immediate here does not carry the
in the hands of the offended party. The same meaning as that under paragraph 4. The
outrage was so serious unless vindicated. word immediate here is an erroneous
Spanish translation because the Spanish word
This is the correct interpretation of paragraph is proxima and not immediatementa.
4, Article 13. As long as the offender at the Therefore, it is enough that the offender
time he committed the felony was still under committed the crime with the grave offense
the influence of the outrage caused by the done to him, his spouse, his ascendant or
provocation or threat, he is acting under a descendant or to his brother or sister, whether
diminished self control. This is the reason why natural, adopted or legitimate and that is the
it is mitigating. proximate cause of the commission of the
crime.
You have to look at two criteria:
However, consider whether passion or whistled lustfully. The male classmate stabbed
obfuscation is generated by common law said men. This was held to be obfuscation.
relationship or by some other human
consideration. When a man saw a woman bathing, almost
naked, for which reason he raped her, such
In a case where the relationship between the man cannot claim passion as a mitigating
accused and the woman he was living with circumstance.
was one of common law, he came home and
surprised his common law wife having sexual A man and a woman were living together for
intercourse with a friend. This infuriated him. 15 years. The man left the village where they
He killed the friend and he claimed passion or were living and never returned home. The
obfuscation. The trial court denied his claim common law wife learned that he was getting
because the relationship was a common law married to a classmate. On the scheduled
one. wedding day, she stabbed the groom in the
chest, instantly killing him. She confessed and
On review, the accused was given the benefit explained that any woman cannot tolerate
of the circumstances and the basis of what he did to her. She gave him the best
considering passion or obfuscation in favor of years of her life. She practically waited for him
the accused was the act of the common law day and night. It was held that passion and
wife in committing adultery right from the obfuscation were considered mitigating.
conjugal bed. Whether or not they are married, Ingratitude was shown here.
any man who discovers that infidelity was
committed on the very bed provided by him to
the woman would naturally be subjected to Voluntary surrender
obfuscation.
The essence of voluntary surrender requires
When a married person surprised his better that the offender, after having committed the
half in the act of sexual intercourse with crime, had evaded the law enforcers and the
another, he gets the benefit of Article 247. law enforcers do not know of his whereabouts.
However, that requisite which in the first place, In short, he continues to elude arrest. If, under
the offender must have surprised his/her this circumstance, the offender would come out
spouse actually committing sexual intercourse in the open and he gives himself up, his act of
should be present. If the surprising was done doing so will be considered as indicative of
not in the actual act of sexual intercourse but repentance and he also saves the government
before or after it, then Article 247 does not the time and the expense of looking for him.
apply.
As a general rule, if after committing the crime,
Although this is the ruling, still, the accused will the offender did not flee and he went with the
be given the benefit of sufficient provocation if responding law enforcers meekly, voluntary
the intercourse was done in his dwelling. If this surrender is not applicable.
act was done somewhere else and the
accused kills the paramour or the spouse, this However, there is a ruling that if after
may be considered as mitigation of a grave committing the crime, the offender did not flee
offense to him or otherwise as a situation and instead waited for the law enforcers to
sufficient to create passion or obfuscation. arrive and he surrendered the weapon he used
Therefore, when a married man upon coming in killing the victim, the ruling was that
home, surprises his wife who was nude and voluntary surrender is mitigating. In this case,
lying with another man who was also nude, the offender had the opportunity to go into
Article 247 does not apply. If he kills them, hiding, the fact that he did not flee is not
vindication of a grave offense will be mitigating voluntary surrender.
in favor of the offender.
However, if he comes out from hiding because
Illustrations: he is seriously ill and he went to get medical
treatment, the surrender is not considered as
A is courting B, a receptionist in a beerhouse. indicative of remorse or repentance. The
C danced with B. A saw this and stabbed C. It surrender here is only done out of convenience
was held that jealousy is an acknowledged to save his own self. Hence, it is not mitigating.
basis of passion.
Even if the offender may have gone into
A, a male classmate is escorting B, a female hiding, if the law enforcers had already known
classmate. On the way out, some men where he is hiding and it is just a matter of time
before he is flushed out of that place, then
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 49
even if the law enforcers do not know exactly mitigating because the only way is to use his
where he was hiding and he would come out, force because he cannot strike back.
this is not voluntary surrender.
If the offender is blind in one eye, as long as
Whether or not a warrant of arrest had been his means of action, defense or communication
issued against the offender is immaterial and with others are not restricted, such
irrelevant. The criterion is whether or not the circumstance is not mitigating. This
offender had gone into hiding or had the circumstance must also have a bearing on the
opportunity to go into hiding and the law crime committed and must depend on how the
enforcers do not know of his whereabouts. If crime was committed.
he would give up, his act of surrendering under
such circumstance indicates that he is willing to
accept the consequences of the wrong he has Analogous cases
done and also thereby saves the government
the effort, the time and the expenses to be The act of the offender of leading the law
incurred in looking for him. enforcers to the place where he buried the
instrument of the crime has been considered
Where the offender went to the municipal as equivalent to voluntary surrender. The act
building not to own responsibility for the killing, of a thief in leading the authorities to the place
such fact is not tantamount to voluntary where he disposed of the loot has been
surrender as a mitigating circumstance. considered as analogous or equivalent to
Although he admitted his participation in the voluntary surrender.
killing, he tried to avoid responsibility by
claiming self-defense which however he was Stealing by a person who is driven to do so out
not able to prove. People v. Mindac, decided of extreme poverty is considered as analogous
December 14, 1992. to incomplete state of necessity. However, this
is not so where the offender became
Surrender to be considered voluntary and thus impoverished because of his own way of living
mitigating, must be spontaneous, his life. If his lifestyle is one of having so many
demonstrating an intent to submit himself vices, as a result of which he became poor, his
unconditionally to the person in authority or his subsequent stealing because of his poverty will
agent in authority, because (1) he not be considered mitigated by incomplete
acknowledges his guilt (2) he wishes to save state of necessity.
the government the trouble and expenses of
searching and capturing him. Where the
reason for the surrender of the accused was to Aggravating circumstances
insure his safety, his arrest by policemen
pursuing him being inevitable, the surrender is Kinds of aggravating circumstances:
not spontaneous.
(1) Generic or those that can generally apply
to all crime;
Physical defect
(2) Specific or those that apply only to a
The physical defect that a person may have particular crime;
must have a relation to the commission of the
crime. In a case where the offender is deaf and (3) Qualifying or those that change the nature
dumb, personal property was entrusted to him of the crime;
and he misappropriated the same. The crime
committed was estafa. The fact that he was (4) Inherent or those that must of necessity
deaf and dumb is not mitigating because that accompany the commission of the crime.
does not bear any relation to the crime
committed. The aggravating circumstances must be
established with moral certainty, with the same
Not any physical defect will affect the crime. It degree of proof required to establish the crime
will only do so if it has some relation to the itself.
crime committed. If a person is deaf and dumb
and he has been slandered, he cannot talk so Most important of the classification of
what he did was, he got a piece of wood and aggravating circumstances are the qualifying
struck the fellow on the head. The crime and the generic aggravating circumstances.
committed was physical injuries. The Supreme
Court held that being a deaf and dumb is In practice, the so-called generic aggravating
circumstances are referred to simply as
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 50
aggravating circumstances. The so-called If let us say, the accused was charged with
qualifying aggravating circumstances are murder. Three of these circumstances:
simply referred to as qualifying circumstances. treachery, evident premeditation and act was
This is so because there is no qualifying done in consideration of a price, reward or
circumstance that is not aggravating. To say promise were alleged as aggravating. Only one
qualifying aggravating circumstance is of these is qualifying. If any one of the three
redundant. In the examination, if you find circumstances was proven, the crime was
qualifying circumstances, you have to think already murder. If the other two are also
about these as aggravating circumstances proven, even if they are alleged in the
which are the ingredients of the crime. information or complaint, they are only to be
taken as generic. If there is any mitigating
Distinctions between aggravating and circumstance in favor of the offender, the two
qualifying circumstances: other circumstances which are otherwise
qualifying could be offset by the mitigating,
In aggravating circumstances provided the mitigating circumstance is not a
privileged mitigating circumstance. Therefore,
(1) The circumstance can be offset by an if there are three of the qualifying
ordinary mitigating circumstance; circumstances alleged in the complaint or
information, only one will qualify the crime. The
(2) No need to allege this circumstance in the others will merely be considered as generic.
information, as long as it is proven Thus, if there is any ordinary mitigating
during trial. If it is proved during trial, circumstance in favor of the accused, such will
the court would consider the same be wiped out by these circumstances, although
in imposing the penalty; initially they are considered as qualifying. Do
not hesitate to offset on the principle that a
(3) It is not an ingredient of a crime. It only qualifying circumstance cannot be offset by an
affects the penalty to be imposed but the ordinary mitigating circumstance because only
crime remains the same. one is necessary.
Illustration:
Illustrations:
A person induced another to kill somebody.
That fellow killed the other guy and employed A mother left her young daughter with the
treachery. As far as the killing is concerned, the accused because she had nobody to leave the
treachery will qualify only the criminal liability of child with while she had to go on an errand.
the actual executioner. The fellow who induced The accused abused the child. It was held that
him becomes a co-principal and therefore, he the abuse of confidence is not aggravating.
is liable for the same crime committed. What is present is betrayal of trust and that is
However, let us say, the fellow was hired to kill not aggravating.
the parent of the one who hired him. He killed
a stranger and not the parent. What was In a case where the offender is a servant, the
committed is different from what was agreed offended party is one of the members of the
upon. The fellow who hired him will not be family. The servant poisoned the child. It was
liable for the crime he had done because that held that abuse of confidence is aggravating.
was not the crime he was hired to commit. This is only true however, if the servant was
still in the service of the family when he did the
killing. If he was driven by the master already
Taking advantage of public position out of the house for some time and he came
back and poisoned the child, abuse of
Article 62 was also amended by the Republic confidence is no longer aggravating. The
Act No. 7659. The legal import of this reason is because that confidence has already
amendment is that the subject circumstance been terminated when the offender was driven
has been made a qualifying or special out of the house.
aggravating that shall not be offset or
compensated by a mitigating circumstance. If
not alleged in the information, however, but
proven during the trial, it is only appreciated as
a generic aggravating circumstance. Dwelling
The mitigating circumstance referred to in the Dwelling will only be aggravating if it is the
amendment as not affecting the imposition of dwelling of the offended party. It should also
the penalty in the maximum are only ordinary not be the dwelling of the offender. If the
mitigating circumstances. Privileged mitigating dwelling is both that of the offended party and
circumstances always lower the penalty the offender, dwelling is not aggravating.
accordingly.
Dwelling need not be owned by the offended
party. It is enough that he used the place for
Disrespect due to rank, age, sex his peace of mind, rest, comfort and privacy.
The rule that dwelling, in order to be
Aggravating only in crimes against persons aggravating must be owned by the offended
and honor, not against property like Robbery party is no longer absolute. Dwelling can be
with homicide (People v. Ga, 156 SCRA 790). aggravating even if it is not owned by the
offended party, provided that the offended
Teachers, professors, supervisors of public and party is considered a member of the family who
duly recognized private schools, colleges and owns the dwelling and equally enjoys peace of
universities, as well as lawyers are persons in mind, privacy and comfort.
authority only for purposes of direct assault
and simple resistance, but not for purposes of Illustration:
aggravating circumstances in paragraph 2,
Article 14. (People v. Taoan, 182 SCRA 601). Husband and wife quarreled. Husband
inflicted physical violence upon the wife. The
wife left the conjugal home and went to the
Abuse of confidence house of her sister bringing her personal
belongings with her. The sister accommodated
Do not confuse this with mere betrayal of trust. the wife in the formers home. The husband
This is aggravating only when the very went to the house of the sister-in-law and tried
offended party is the one who reposed the to persuade the wife to come back to the
confidence. If the confidence is reposed by conjugal home but the wife refused because
another, the offended party is different from the she is more at peace in her sister's house than
fellow who reposed the confidence and abuse in the conjugal abode. Due to the wife's refusal
of confidence in this case is not aggravating. to go back to the conjugal home and live with
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 52
the husband, the husband pulled out a knife is made while A is on the stairs, the
and stabbed the wife which caused her death. aggravating circumstance of dwelling is not
It was held that dwelling was aggravating present. If the attack is made while B was on
although it is not owned by the offended party the stairs, then the aggravating circumstance
because the offended party is considered as a of dwelling is present.
member of the family who owns the dwelling
and that dwelling is where she enjoyed privacy. Whenever one is in his dwelling, the law is
Peace of mind and comfort. presuming that he is not intending to commit a
wrong so one who attacks him while in the
Even a room in a hotel if rented as a dwelling, tranquility of his home shows a degree of
like what the salesmen do when they are perversity in him. Hence, this aggravating
assigned in the provinces and they rent rooms, circumstance.
is considered a dwelling. A room in a hotel or
motel will be considered dwelling if it is used Dwelling is not limited to the house proper. All
with a certain degree of permanence, where the appurtenances necessary for the peace
the offended party seeks privacy, rest, peace and comfort, rest and peace of mind in the
of mind and comfort. abode of the offended party is considered a
dwelling.
If a young man brought a woman in a motel for
a short time and there he was killed, dwelling is Illustrations:
not aggravating.
A man was fixing something on the roof of his
A man was killed in the house of his common house when he was shot. It was held that
law wife. Dwelling is aggravating in this case dwelling is aggravating. Roof still part of the
because the house was provided by the man. house.
Dwelling should not be understood in the In the provinces where the comfort rooms are
concept of a domicile. A person has more than usually far from the house proper, if the
one dwelling. So, if a man has so many wives offended party while answering the call of
and he gave them a places of their own, each nature is killed, then dwelling is aggravating
one is his own dwelling. If he is killed there, because the comfort room is a necessary
dwelling will be aggravating, provided that he dependency of the house proper.
also stays there once in a while. When he is
only a visitor there, dwelling is not aggravating. A person while in the room of his house,
maintaining the room, was shot. Dwelling is
The crime of adultery was committed. Dwelling aggravating.
was considered aggravating on the part of the
paramour. The paramour is not a resident of If the offender entered the house and the
the same dwelling. However, if the paramour offended party jumped out of the house, even
was also residing on the same dwelling, if the offender caught up with him already out
dwelling is not considered aggravating. of the house, dwelling is still aggravating. The
reason is because he could not have left his
The term dwelling includes all the dwelling were it not for the fact that the
dependencies necessary for a house or for rest attacker entered the house.
or for comfort or a place of privacy. If the place
used is on the second floor, the stairs which If the offended party was inside the house and
are used to reach the second floor is the offender was outside and the latter shot the
considered a dwelling because the second former inside the house while he was still
floor cannot be enjoyed without the stairs. If outside. Dwelling is still aggravating even if the
the offended party was assaulted while on the offender did not enter the house.
stairs, dwelling is already aggravating. For this
reason, considering that any dependency A garage is part of the dwelling when
necessary for the enjoyment of a place of connected with an interior passage to the
abode is considered a dwelling. house proper. If not connected, it is not
considered part of the dwelling.
Illustrations:
One-half of the house is used as a store and
A and B are living in one house. A occupies the the other half is used for dwelling but there is
ground floor while B the upper floor. The stairs only one entrance. If the dwelling portion is
here would form part only of B's dwelling, the attacked, dwelling is not aggravating because
same being necessary and an integral part of whenever a store is open for business, it is a
his house or dwelling. Hence, when an attack public place and as such is not capable of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 53
being the subject of trespass. If the dwelling before being able to give assistance still have
portion is attacked where even if the store is to jump into the water and swim towards B and
open, there is another separate entrance to the the time it would take them to do that, the
portion used for dwelling, the circumstance is chances of B receiving some help was very
aggravating. However, in case the store is little, despite the fact that there were other
closed, dwelling is aggravating since here, the persons not so far from the scene.
store is not a public place as in the first case.
Evidence tending to prove that the offender
Balcony is part of the dwelling because it is took advantage of the place and purposely
appurtenant to the house availed of it is to make it easier to commit the
crime, shall be necessary.
Dwelling is aggravating in robbery with
homicide because the crime can be committed
without necessarily transgressing the sanctity Nighttime
of the home (People v. De Los Reyes,
decided October 22, 1992). What if the crime started during the daytime
and continued all the way to nighttime? This is
Dwelling is aggravating where the place is, not aggravating.
even for a brief moment, a home, although he
is not the owner thereof as when victim was As a rule, the crime must begin and end during
shot in the house of his parents. the nighttime. Crime began at day and ended
at night, as well as crime began at night and
ended at day is not aggravated by the
Band circumstance of nighttime.
In band, there should at least be four persons. Darkness is what makes this circumstance
All of them should be armed. Even if there are aggravating.
four, but only three or less are armed, it is not a
band. Whenever you talk of band, always have
in mind four at least. Do not say three or more Illustration:
because it is four or more. The way the law
defines a band is somewhat confusing One evening, a crime was committed near the
because it refers simply to more than 3, when lamp post. The Supreme Court held that there
actually it should be 4 or more. is no aggravating circumstance of nighttime.
Even if the crime was committed at night, but
Correlate this with Article 306 - Brigandage. there was light, hence, darkness was not
The crime is the band itself. The mere forming present, no aggravating circumstance just by
of a band even without the commission of a the fact of nighttime alone.
crime is already a crime so that band is not
aggravating in brigandage because the band Even if there was darkness but the nighttime
itself is the way to commit brigandage. was only an incident of a chance meeting,
there is no aggravating circumstance here. It
However, where brigandage is actually must be shown that the offender deliberately
committed, band becomes aggravating. sought the cover of darkness and the offender
purposely took advantage of nighttime to
facilitate the commission of the offense.
Uninhabited place
Nocturnity is the period of time after sunset to
It is determined not by the distance of the sunrise, from dusk to dawn.
nearest house to the scene of the crime but
whether or not in the place of the commission
of the offense , there was a reasonable Different forms of repetition or habituality of
possibility of the victim receiving some help. the offender
(2) Repetition or reiteracion under Article 14 physical injuries, (c) robbery, (d) theft, (e)
(10) The offender has been estafa or swindling and (f) falsification.
previously punished for an offense
which the law attaches an equal or (3) There is a time limit of not more than 10
greater penalty or for two or more years between every convictions
crimes to which it attaches a lighter computed from the first conviction or
penalty. release from punishment thereof to
conviction computed from the second
(3) Habitual delinquency under Article 62 (5) conviction or release therefrom to the
The offender within the period of 10 third conviction and so on . . .
years from the date of his release (4) Habitual delinquency is a special
or last conviction of the crimes of aggravating circumstance, hence it
serious or less serious physical cannot be offset by any mitigating
injuries, robo, hurto, estafa or circumstance. Aside from the penalty
falsification, is found guilty of the prescribed by law for the crime
any of said crimes a third time or committed, an additional penalty shall
oftener. be imposed depending upon whether it
is already the third conviction, the
(4) Quasi-recidivism under Article 160 Any fourth, the fifth and so on . . .
person who shall commit a felony
after having been convicted by final (5) The circumstance must be alleged in
judgment before beginning to serve the information; otherwise the court
such sentence or while serving such cannot acquire jurisdiction to impose
sentence shall be punished by the additional penalty.
maximum period prescribed by law
for the new felony.
Recidivism
Distinctions between recidivism and habitual
delinquency In recidivism, the emphasis is on the fact that
the offender was previously convicted by final
In recidivism judgement of a felony and subsequently found
guilty of another felony embraced in the same
(1) Two convictions are enough. title of the Revised Penal Code. The law
considers this aggravating when a person has
(2) The crimes are not specified; it is been committing felonies embraced in the
enough that they may be same title because the implication is that he is
embraced under the same title specializing on such kind of crime and the law
of the Revised Penal Code. wants to prevent any specialization. Hence,
ordinarily, when a person commits a crime
(3) There is no time limit between the first under different titles, no aggravating
conviction and the subsequent circumstance is present. It is important that the
conviction. Recidivism is conviction which came earlier must refer to the
imprescriptible. crime committed earlier than the subsequent
conviction.
(4) It is a generic aggravating circumstance
which can be offset by an ordinary Illustration:
mitigating circumstance. If not
offset, it would only increase the In 1980, A committed robbery. While the case
penalty prescribed by law for the was being tried, he committed theft in 1983. He
crime committed to its maximum was found guilty and was convicted of theft
period. also in 1983. The conviction became final
because he did not appeal anymore and the
(5) The circumstance need not be alleged in trial for his earlier crime which was robbery
the information. ended in 1984 where he was also convicted.
He also did not appeal this decision. Is the
In habitual delinquency accused a recidivist? The subsequent
conviction must refer to a felony committed
(1) At least three convictions are required. later in order to constitute recidivism. The
reason for this is as the time the first crime was
(1) The crimes are limited and specified to: (a) committed, there was no other crime of which
serious physical injuries, (b) less serious he was convicted so he cannot be regarded as
a repeater.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 55
Pardon does not erase recidivism, even if it is We have to consider the crimes in it and take
absolute because only excuses the service of note of the titles of crimes in the Revised Penal
the penalty, but not the conviction. Code.
If the offender has already served his sentence If the offender had committed and was
and he was extended an absolute pardon, the convicted of each of the crimes under each
pardon shall erase the conviction including category so that no two crimes fall under the
recidivism because there is no more penalty so same title of the Revised Penal Code, you
it shall be understood as referring to the have a situation where the offender is a
conviction or the effects of the crime. habitual delinquent but not a recidivist because
no two crimes fall under the same title of the
Recidivism may be considered even though Code.
not alleged in the information because this is
only a generic aggravating circumstance. If the first conviction is for serious physical
injuries or less serious physical injuries and the
It is necessary to allege recidivism in the second conviction is for robbery, theft or estafa
information, but if the defense does not object and the third is for falsification, then the
to the presentation of evidence during the trial moment the habitual delinquent is on his fourth
and the same was proven, the court shall conviction already, you cannot avoid that he is
consider such aggravating circumstance a habitual delinquent and at the same time a
because it is only generic. recidivist because at least, the fourth time will
have to fall under any of the three categories.
In recidivism, although the law defines it as a
circumstance where a person having been When the offender is a recidivist and at the
convicted by final judgement was previously same time a habitual delinquent, the penalty
convicted also by final judgement for a crime for the crime for which he will be convicted will
embraced in the same title in the Revised be increased to the maximum period unless
Penal Code, it is necessary that the conviction offset by a mitigating circumstance. After
must come in the order in which they are determining the correct penalty for the last
committed. crime committed, an added penalty will be
imposed in accordance with Article 62.
recidivism is not alleged in the information, if his penalty, forget about reiteracion. That
proven during trial, the court can appreciate means he has not yet tasted the bitterness of
the same. If the prosecution tried to prove life but if he had already served out the
recidivism and the defense objected, the penalty, the law expects that since he has
objection should be overruled. The reason is already tasted punishment, he will more or less
recidivism is a generic aggravating refrain from committing crimes again. That is
circumstance only. As such, it does not have to why if the offender committed a subsequent
be alleged in the information because even if felony which carries with it a penalty lighter
not alleged, if proven during trial, the trial court than what he had served, reiteracion is not
can appreciate it. aggravating because the law considers that
somehow, this fellow was corrected because
Right now, the present rule is that it can be instead of committing a serious crime, he
appreciated even if not alleged in the committed a lesser one. If he committed
information. This is the correct view because another lesser one, then he becomes a
recidivism is a generic aggravating repeater.
circumstance. The reason why habitual
delinquency cannot be appreciated unless So, in reiteracion, the penalty attached to the
alleged in the information is because recidivism crime subsequently committed should be
has nothing to do with the crime committed. higher or at least equal to the penalty that he
Habitual delinquency refers to prior conviction has already served. If that is the situation, that
and therefore this must be brought in the means that the offender was never reformed
information before the court can acquire by the fact that he already served the penalty
jurisdiction over this matter. imposed on him on the first conviction.
However, if he commits a felony carrying a
Generally, the procedure you know that when lighter penalty; subsequently, the law considers
the prosecutor alleges habitual delinquency, it that somehow he has been reformed but if he,
must specify the crimes committed, the dates again commits another felony which carries a
when they were committed, the court which lighter penalty, then he becomes a repeater
tried the case, the date when the accused was because that means he has not yet reformed.
convicted or discharged. If these are not
alleged, the information is defective. You will only consider the penalty in reiteracion
if there is already a second conviction. When
However, in a relatively recent ruling of the there is a third conviction, you disregard
Supreme Court, it was held that even though whatever penalty for the subsequent crimes
the details of habitual delinquency was not set committed. Even if the penalty for the
forth in the information, as long as there is an subsequent crimes committed are lighter than
allegation there that the accused is a habitual the ones already served, since there are
delinquent, that is enough to confer jurisdiction already two of them subsequently, the offender
upon the court to consider habitual is already a repeater.
delinquency. In the absence of the details set
forth in the information, the accused has the However, if there is only a second conviction,
right to avail of the so-called bill of particulars. pay attention to the penalty attached to the
Even in a criminal case, the accused may file a crime which was committed for the second
motion for bill of particulars. If the accused fails crime. That is why it is said that reiteracion is
to file such, he is deemed to have waived the not always aggravating. This is so because if
required particulars and so the court can admit the penalty attached to the felony
evidence of the habitual delinquency, even subsequently committed is not equal or higher
though over and above the objection of the than the penalty already served, even if
defense. literally, the offender is a repeater, repetition is
not aggravating.
Reiteracion
Quasi-recidivism
This has nothing to do with the classification of
the felonies. In reiteracion, the offender has This is found in Article 160. The offender must
already tasted the bitterness of the already be convicted by final judgement and
punishment. This is the philosophy on which therefore to have served the penalty already,
the circumstance becomes aggravating. but even at this stage, he committed a felony
before beginning to serve sentence or while
It is necessary in order that there be reiteracion serving sentence.
that the offender has already served out the
penalty. If the offender had not yet served out Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 57
Illustration:
By means of inundation or fire
The offender was convicted of homicide. While
serving sentence in Muntinlupa, he was found Fire is not aggravating in the crime of arson.
smoking marijuana. He was prosecuted for
illegal use of prohibited drugs and was Whenever a killing is done with the use of fire,
convicted. Is he a quasi-recidivist? No, as when to kill someone, you burn down his
because the crime committed while serving house while the latter is inside, this is murder.
sentence is not a felony.
There is no such crime as murder with arson or
Reverse the situation. Assume that the arson with homicide. The crime committed is
offender was found guilty of illegal use of only murder.
prohibited drugs. While he was serving
sentence, he got involved in a quarrel and If the victim is already dead and the house is
killed a fellow inmate. Is he a quasi-recidivist? burned, the crime is arson. It is either arson or
Yes, because while serving sentence, he murder.
committed a felony.
If the intent is to destroy property, the crime is
The emphasis is on the nature of the crime arson even if someone dies as a consequence.
committed while serving sentence or before If the intent is to kill, there is murder even if the
serving sentence. It should not be a violation of house is burned in the process.
a special law.
Illustration:
Quasi-recidivism is a special aggravating
circumstance. This cannot be offset by any A and B were arguing about something. One
mitigating circumstance and the imposition of argument led to another until A struck B to
the penalty in the maximum period cannot be death with a bolo. A did not know that C, the
lowered by any ordinary mitigating son of B was also in their house and who was
circumstance. When there is a privileged peeping through the door and saw what A did.
mitigating circumstance, the penalty prescribed Afraid that A might kill him, too, he hid
by law for the crime committed shall be somewhere in the house. A then dragged B's
lowered by 1 or 2 degrees, as the case may body and poured gasoline on it and burned the
be, but then it shall be imposed in the house altogether. As a consequence, C was
maximum period if the offender is a quasi- burned and eventually died too.
recidivist.
As far as the killing of B is concerned, it is
homicide since it is noted that they were
arguing. It could not be murder. As far as the
In consideration of a price, reward or promise killing of C is concerned, the crime is arson
since he intended to burn the house only.
The Supreme Court rulings before indicate that
this circumstance aggravates only the criminal No such crime as arson with homicide. Law
liability of the person who committed the crime enforcers only use this to indicate that a killing
in consideration of the price, promise, or occurred while arson was being committed. At
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 58
the most, you could designate it as death as a because there is evident premeditation.
consequence of arson. However, that murder cannot be considered for
C. Insofar as C is concerned, the crime is
homicide because there was no evident
Evident premeditation premeditation.
against. This is a circumstance that will qualify insure its execution without risk to himself
a killing from homicide to murder. arising from the defense which the offended
party might make. The means, method or form
Illustration: employed my be an aggravating circumstance
which like availing of total darkness in
A person who has been courting a lady for nighttime or availing of superior strength taken
several years now has been jilted. Because of advantage of by the offender, employing
this, he thought of killing somebody. He, then means to weaken the defense.
bought a knife, sharpened it and stabbed the
first man he met on the street. It was held that Illustration:
evident premeditation is not present. It is
essential for this aggravating circumstance for A and B have been quarreling for some time.
the victim to be identified from the beginning. One day, A approached B and befriended him.
B accepted. A proposed that to celebrate their
A premeditated to kill any member of particular renewed friendship, they were going to drink. B
fraternity. He then killed one. This is murder was having too much to drink. A was just
a homicide which has been qualified into waiting for him to get intoxicated and after
murder by evident premeditation which is a which, he stabbed B.
qualifying circumstance. Same where A
planned to kill any member of the Iglesio ni A pretended to befriend B, just to intoxicate the
Kristo. latter. Intoxication is the means deliberately
employed by the offender to weaken the
There are some crimes which cannot be defense of the offended party. If this was the
aggravated by evident premeditation because very means employed, the circumstance may
they require some planning before they can be be treachery and not abuse of superior
committed. Evident premeditation is part of the strength or means to weaken the defense.
crime like kidnapping for ransom, robbery with
force upon things where there is entry into the What is the essence of treachery?
premises of the offended party, and estafa
through false pretenses where the offender The essence of treachery is that by virtue of
employs insidious means which cannot happen the means, method or form employed by the
accidentally. offender, the offended party was not able to
put up any defense. If the offended party was
able to put up a defense, even only a token
Craft one, there is no treachery anymore. Instead
some other aggravating circumstance may be
Aggravating in a case where the offenders present but not treachery anymore.
pretended to be bona fide passengers of a
jeepney in order not to arouse suspicion, but Illustration:
once inside the jeepney, robbed the
passengers and the driver (People v. Lee, A and B quarreled. However A had no chance
decided on December 20, 1991). to fight with B because A is much smaller than
B. A thought of killing B but then he cannot just
attack B because of the latter's size. So, A
Abuse of superior strength thought of committing a crime at nighttime with
the cover of darkness. A positioned himself in
There must be evidence of notorious inequality the darkest part of the street where B passes
of forces between the offender and the on his way home. One evening, A waited for B
offended party in their age, size and strength, and stabbed B. However, B pulled a knife as
and that the offender took advantage of such well and stabbed A also. A was wounded but
superior strength in committing the crime. The not mortal so he managed to run away. B was
mere fact that there were two persons who able to walk a few steps before he fell and
attacked the victim does not per se constitute died. What crime was committed?
abuse of superior strength (People v. Carpio,
191 SCRA 12). The crime is only homicide because the
aggravating circumstance is only nocturnity
and nocturnity is not a qualifying circumstance.
Treachery The reason why treachery cannot be
considered as present here is because the
Treachery refers to the employment of means, offended party was able to put up a defense
method and form in the commission of the and that negates treachery. In treachery, the
crime which tend directly and specially to offended party, due to the means, method or
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 60
But where children of tender years were killed, A and B are enemies. A upon seeing B pulled
being one year old and 12 years old, the killing out a knife and stabbed B 60 times. Will that
is murder even if the manner of attack was not fact be considered as an aggravating
shown (People v. Gahon, decided on April circumstance of cruelty? No, there is cruelty
30, 1991). only when there are evidence that the offender
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 61
inflicted the stab wounds while enjoying or any person who belongs to an organized or
delighted to see the victim in pain. For cruelty syndicated crime group.
to exist as an aggravating circumstance, there
must be evidence showing that the accused An organized or syndicated crime group means
inflicted the alleged cruel wounds slowly and a group of two or more persons collaborating,
gradually and that he is delighted seeing the confederating or mutually helping one another
victim suffer in pain. In the absence of for purposes of gain in the commission of a
evidence to this effect, there is no cruelty. Sixty crime.
stab wounds do not ipso facto make them
aggravating circumstances of cruelty. The With this provision, the circumstance of an
crime is murder if 60 wounds were inflicted organized or syndicated crime group having
gradually; absence of this evidence means the committed the crime has been added in the
crime committed is only homicide. Code as a special aggravating circumstance.
The circumstance being special or qualifying, it
Cruelty is aggravating in rape where the must be alleged in the information and proved
offender tied the victim to a bed and burnt her during the trial. Otherwise, if not alleged in the
face with a lighted cigarette while raping her information, even though proven during the
laughing all the way (People v. Lucas, 181 trial, the court cannot validly consider the
SCRA 315). circumstances because it is not among those
enumerated under Article 14 of the Code as
aggravating. It is noteworthy, however, that
Unlawful entry there is an organized or syndicated group even
when only two persons collaborated,
Unlawful entry is inherent in the crime of confederated, or mutually helped one another
robbery with force upon things but aggravating in the commission of a crime, which acts are
in the crime of robbery with violence against or inherent in a conspiracy. Where therefore,
intimidation of persons. conspiracy in the commission of the crime is
alleged in the information, the allegation may
be considered as procedurally sufficient to
Motor vehicle warrant receiving evidence on the matter
during trial and consequently, the said special
The Supreme Court considers strictly the use aggravating circumstance can be appreciated
of the word committed, that the crime is if proven.
committed with the use of a motor vehicle,
motorized means of transportation or motorized
watercraft. There is a decision by the Court of Alternative circumstances
Appeals that a motorized bicycle is a motor
vehicle even if the offender used only the foot Four alternative circumstances
pedal because he does not know how to
operate the motor so if a bicycle is used in the (1) Relationship;
commission of the crime, motor vehicle
becomes aggravating if the bicycle is (2) Intoxication;
motorized.
(3) Degree of instruction; and
This circumstance is aggravating only when
used in the commission of the offense. If motor (4) Education.
vehicle is used only in the escape of the
offender, motor vehicle is not aggravating. To Use only the term alternative circumstance for
be aggravating, it must have been used to as long as the particular circumstance is not
facilitate the commission of the crime. involved in any case or problem. The moment
it is given in a problem, do not use alternative
Aggravating when a motorized tricycle was circumstance, refer to it as aggravating or
used to commit the crime mitigating depending on whether the same is
considered as such or the other. If relationship
is aggravating, refer to it as aggravating. If
Organized or syndicated crime group mitigating, then refer to it as such.
In the same amendment to Article 62 of the Except for the circumstance of intoxication, the
Revised Penal Code, paragraphs were added other circumstances in Article 15 may not be
which provide that the maximum penalty shall taken into account at all when the
be imposed if the offense was committed by circumstance has no bearing on the crime
committed. So the court will not consider this
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 62
were 11 stab wounds and this, the Supreme Under the Revised Penal Code, when more
Court said, is incompatible with the idea that than one person participated in the
the offender is already suffering from commission of the crime, the law looks into
diminished self control. On the contrary, the their participation because in punishing
indication is that the offender gained strength offenders, the Revised Penal Code classifies
out of the drinks he had taken. It is not the them as:
quantity of drink that will determine whether the
offender can legally invoke intoxication. The (1) principal;
conduct of the offender, the manner of
committing the crime, his behavior after (2) accomplice; or
committing the crime must show the behavior
of a man who has already lost control of (3) accessory.
himself. Otherwise intoxication cannot legally
be considered. This classification is true only under the
Revised Penal Code and is not used under
special laws, because the penalties under the
Degree of instruction and education latter are never graduated. Do not use the
term principal when the crime committed is a
These are two distinct circumstances. One violation of special law. Only use the term
may not have any degree of instruction but is offender. Also only classify offenders when
nevertheless educated. Example: A has been more than one took part in the commission of
living with professionals for sometime. He may the crime to determine the proper penalty to be
just be a maid in the house with no degree of imposed. So, if only one person committed a
instruction but he may still be educated. crime, do not use principal. Use the
offenders, culprits, or the accused.
It may happen also that the offender grew up
in a family of professionals, only he is the black When a problem is encountered where there
sheep because he did not want to go to are several participants in the crime, the first
school. But it does not follow that he is bereft thing to find out is if there is a conspiracy. If
of education. there is, as a general rule, the criminal liability
of all will be the same, because the act of one
If the offender did not go higher than Grade 3 is the act of all.
and he was involved in a felony, he was
invoking lack of degree of education. The However, if the participation of one is so
Supreme Court held that although he did not insignificant, such that even without his
receive schooling, yet it cannot be said that he cooperation, the crime would be committed just
lacks education because he came from a as well, then notwithstanding the existence of
family where brothers are all professionals. So a conspiracy, such offender will be regarded
he understands what is right and wrong. only as an accomplice. The reason for this
ruling is that the law favors a milder form of
The fact that the offender did not have criminal liability if the act of the participant does
schooling and is illiterate does not mitigate his not demonstrate a clear perversity.
liability if the crime committed is one which he
inherently understands as wrong such as As to the liability of the participants in a felony,
parricide. If a child or son or daughter would the Code takes into consideration whether the
kill a parent, illiteracy will not mitigate because felony committed is grave, less grave, or light.
the low degree of instruction has no bearing on
the crime. When the felony is grave, or less grave, all
participants are criminally liable.
In the same manner, the offender may be a
lawyer who committed rape. The fact that he But where the felony is only light only the
has knowledge of the law will not aggravate his principal and the accomplice are liable. The
liability, because his knowledge has nothing to accessory is not.
do with the commission of the crime. But if he
committed falsification, that will aggravate his But even the principal and the accomplice will
criminal liability, where he used his special not be liable if the felony committed is only light
knowledge as a lawyer. and the same is not consummated unless such
felony is against persons or property. If they
are not and the same is not consummated,
PERSONS WHO ARE CRIMINALLY LIABLE even the principal and the accomplice are not
liable.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 64
The accused are father and son. The father Principal by inducement
told his son that the only way to convince the
victim to marry him is to resort to rape. So Concept of the inducement one strong
when they saw the opportunity the young man enough that the person induced could hardly
grabbed the woman, threw her on the ground resist. This is tantamount to an irresistible
and placed himself on top of her while the force compelling the person induced to carry
father held both legs of the woman and spread out the execution of the crime. Ill advised
them. The Supreme Court ruled that the father language is not enough unless he who made
is liable only as an accomplice. such remark or advice is a co-conspirator in
the crime committed.
The point is not just on participation but on the While in the course of a quarrel, a person
importance of participation in committing the shouted to A, Kill him! Kill him. A killed the
crime. other fellow. Is the person who shouted
criminally liable. Is that inducement? No. It
In the first situation, the facts indicate that if the must be strong as irresistible force.
fellow who held the legs of the victim and
spread them did not do so, the offender on top There was a quarrel between two families.
could hardly penetrate because the woman One of the sons of family A came out with a
was strong enough to move or resist. In the shotgun. His mother then shouted, Shoot!.
second situation, the son was much bigger He shot and killed someone. Is the mother
than the woman so considering the strength of liable? No.
the son and the victim, penetration is possible
even without the assistance of the father. The Examples of inducement:
son was a robust farm boy and the victim
undernourished. The act of the father in I will give you a large amount of money.
holding the legs of the victim merely facilitated
the penetration but even without it the son I will not marry you if you do not kill B(let us
would have penetrated. say he really loves the inducer).
The basis is the importance of the cooperation They practically become co-conspirators.
to the consummation of the crime. If the crime Therefore you do not look into the degree of
could hardly be committed without such inducement anymore.
cooperation, then such cooperation would
bring about a principal. But if the cooperation In People v. Balderrama, Ernesto shouted to
merely facilitated or hastened the his younger brother Oscar, Birahin mo na,
consummation of the crime, this would make birahin mo na. Oscar stabbed the victim. It
the cooperator merely an accomplice. was held that there was no conspiracy. Joint
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 65
The liability of the wife is based on her Destroying the corpus delicti
assisting the principal to profit and that act
is punishable as fencing. She will no When the crime is robbery or theft, with
longer be liable as an accessory to the respect to the second involvement of an
crime of robbery. accessory, do not overlook the purpose
which must be to prevent discovery of the
In both laws, Presidential Decree No. 1612
crime.
and the Revised Penal Code, the same act
is the basis of liability and you cannot The corpus delicti is not the body of the
punish a person twice for the same act as person who is killed, even if the corpse is
that would go against double jeopardy. not recovered, as long as that killing is
established beyond reasonable doubt,
criminal liability will arise and if there is
Acquiring the effects of piracy or someone who destroys the corpus delicti to
brigandage prevent discovery, he becomes an
accessory.
It is relevant to consider in connection with
the criminal liability of accessories under
the Revised Penal Code, the liability of Harboring or concealing an offender
persons acquiring property subject of piracy
or brigandage. In the third form or manner of becoming an
accessory, take note that the law
The act of knowingly acquiring or receiving distinguishes between a public officer
property which is the effect or the proceeds harboring, concealing or assisting the
of a crime generally brings about criminal principal to escape and a private citizen or
liability of an accessory under Article 19, civilian harboring concealing or assisting
paragraph 1 of the Revised Penal Code. the principal to escape.
But if the crime was piracy of brigandage
under Presidential Decree No. 533 (Anti- In the case of a public officer, the crime
piracy and Anti-Highway Robbery Law of committed by the principal is immaterial.
1974), said act constitutes the crime of Such officer becomes an accessory by the
abetting piracy or abetting brigandage as mere fact that he helped the principal to
the case may be, although the penalty is escape by harboring or concealing, making
that for an accomplice, not just an use of his public function and thus abusing
accessory, to the piracy or brigandage. To the same.
this end, Section 4 of Presidential Decree
No. 532 provides that any person who On the other hand, in case of a civilian, the
knowingly and in any manner acquires or mere fact that he harbored concealed or
receives property taken by such pirates or assisted the principal to escape does not
brigands or in any manner derives benefit ipso facto make him an accessory. The law
therefrom shall be considered as an requires that the principal must have
accomplice of the principal offenders and committed the crime of treason, parricide,
be punished in accordance with the Rules murder or attempt on the life of the Chief
prescribed by the Revised Penal Code. Executive. If this is not the crime, the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 67
civilian does not become an accessory penal laws in order to prevent his arrest,
unless the principal is known to be prosecution and conviction.
habitually guilty of some other crime. Even
if the crime committed by the principal is Here, there is no specification of the crime
treason, or murder or parricide or attempt to be committed by the offender for criminal
on the life of the Chief Executive, the liability to be incurred for harboring,
accessory cannot be held criminally liable concealing, or facilitating the escape of the
without the principal being found guilty of offender, and the offender need not be the
any such crime. Otherwise the effect principal unlike paragraph 3, Article 19 of
would be that the accessory merely the Code. The subject acts may not bring
harbored or assisted in the escape of an about criminal liability under the Code, but
innocent man, if the principal is acquitted of under this decree. Such an offender if
the charges. violating Presidential Decree No. 1829 is
no longer an accessory. He is simply an
Illustration: offender without regard to the crime
committed by the person assisted to
Crime committed is kidnapping for ransom. escape. So in the problem, the standard of
Principal was being chased by soldiers. the Revised Penal Code, aunt is not
His aunt hid him in the ceiling of her house criminally liable because crime is
and aunt denied to soldiers that her kidnapping, but under Presidential Decree
nephew had ever gone there. When the No. 1829, the aunt is criminally liable but
soldiers left, the aunt even gave money to not as an accessory.
her nephew to go to the province. Is aunt
criminally liable? No. Article 20 does not Whether the accomplice and the accessory
include an auntie. However, this is not the may be tried and convicted even before the
reason. The reason is because one who is principal is found guilty.
not a public officer and who assists an
offender to escape or otherwise harbors, or There is an earlier Supreme Court ruling
conceals such offender, the crime that the accessory and accomplice must be
committed by the principal must be either charged together with the principal and that
treason, parricide murder or attempt on the if the latter be acquitted, the accomplice
life of the Chief executive or the principal is and the accessory shall not be criminally
known to be habitually guilty of some other liable also, unless the acquittal is based on
crime. a defense which is personal only to the
principal. Although this ruling may be
The crime committed by the principal is correct if the facts charged do not make the
determinative of the liability of the principal criminally liable at all, because
accessory who harbors, conceals knowing there is no crime committed.
that the crime is committed. If the person is
a public officer, the nature of the crime is Yet it is not always true that the accomplice
immaterial. What is material is that he and accessory cannot be criminally liable
used his public function in assisting without the principal first being convicted.
escape. Under Rule 110 of the Revised Rules on
Criminal Procedure, it is required that all
However, although under paragraph 3 of those involved in the commission of the
Article 19 when it comes to a civilian, the crime must be included in the information
law specifies the crimes that should be that may be filed. And in filing an
committed, yet there is a special law which information against the person involved in
punishes the same act and it does not the commission of the crime, the law does
specify a particular crime. Presidential not distinguish between principal,
Decree No. 1829, which penalizes accomplice and accessory. All will be
obstruction of apprehension and accused and whether a certain accused will
prosecution of criminal offenders, effective be principal or accomplice or accessory will
January 16, 1981, punishes acts commonly depend on what the evidence would show
referred to as obstructions of justice. This as to his involvement in the crime. In other
Decree penalizes under Section 1(c) words, the liability of the accused will
thereof, the act, inter alia, of depend on the quantum of evidence
(c) Harboring or concealing, or facilitating adduced by the prosecution against the
the escape of any person he knows or has particular accused. But the prosecutor
reasonable ground to believe or suspect, must initiate proceedings versus the
has committed any offense under existing principal.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 68
(2) He is availing of the benefit of From this provision, one can see that the
suspension for the first time; detention of the offender may subject him
only to the treatment applicable to a
(3) He must still be a minor at the detention prisoner or to the treatment
time of promulgation of the applicable to convicts, but since he is not
sentence. convicted yet, while he is under preventive
imprisonment, he cannot be subjected to
the treatment applicable to convicts unless
Correlating Article 24 with Article 29 he signs and agrees to be subjected to
such disciplinary measures applicable to
Although under Article 24, the detention of convicts.
a person accused of a crime while the case
against him is being tried does not amount Detention prisoner has more freedom
to a penalty, yet the law considers this as within the detention institution rather than
part of the imprisonment and generally those already convicted. The convicted
deductible from the sentence. prisoner suffers more restraints and
hardship than detention prisoners.
When will this credit apply? If the penalty
imposed consists of a deprivation of liberty. Under what circumstances may a detention
Not all who have undergone preventive prisoner be released, even though the
imprisonment shall be given a credit proceedings against him are not yet
terminated?
Under Article 24, preventive imprisonment
of an accused who is not yet convicted, but Article 29 of the Revised Penal Code has
by express provision of Article24 is not a been amended by a Batas Pambansa
penalty. Yet Article 29, if ultimately the effective that tool effect on September 20,
accused is convicted and the penalty 1980. This amendment is found in the
imposed involves deprivation of liberty, Rules of Court, under the rules on bail in
provides that the period during which he Rule 114 of the Rules on Criminal
had undergone preventive detention will be Procedure, the same treatment exactly is
deducted from the sentence, unless he is applied there.
one of those disqualified under the law.
In the amendment, the law does not speak
So, if the accused has actually undergone of credit. Whether the person is entitled to
preventive imprisonment, but if he has credit is immaterial. The discharge of the
been convicted for two or more crimes offender from preventive imprisonment or
whether he is a recidivist or not, or when he detention is predicated on the fact that
has been previously summoned but failed even if he would be found guilty of the
to surrender and so the court has to issue a crime charged, he has practically served
warrant for his arrest, whatever credit he is the sentence already, because he has
entitled to shall be forfeited. been detained for a period already equal to
if not greater than the maximum penalty
If the offender is not disqualified from the that would be possibly be imposed on him
credit or deduction provided for in Article 29 if found guilty.
of the Revised Penal Code, then the next
thing to determine is whether he signed an If the crime committed is punishable only
undertaking to abide by the same rules and by destierro, the most the offender may be
regulations governing convicts. If he held under preventive imprisonment is 30
signed an undertaking to abide by the days, and whether the proceedings are
same rules and regulations governing terminated or not, such detention prisoner
convicts, then it means that while he is shall be discharged.
suffering from preventive imprisonment, he
is suffering like a convict, that is why the Understand the amendment made to Article
credit is full. 29. This amendment has been
incorporated under Rule 114 precisely to do
But if the offender did not sign an away with arbitrary detention.
undertaking, then he will only be subjected
to the rules and regulations governing Proper petition for habeas corpus must be
detention prisoners. As such, he will only filed to challenge the legality of the
be given 80% or 4/5 of the period of his detention of the prisoner.
preventive detention.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 70
sentence, he executed a deed of sale over his Divisible and indivisible penalties
only parcel of land. A creditor moved to annul
the sale on the ground that the convict is not When we talk of period, it is implying that the
qualified to execute a deed of conveyance inter penalty is divisible.
vivos. If you were the judge, how would you
resolve the move of the creditor to annul the If, after being given a problem, you were asked
sale? to state the period in which the penalty of
reclusion perpetua is to be imposed, remember
Civil interdiction is not an accessory penalty in that when the penalty is indivisible, there is no
prision mayor. The convict can convey his period. Do not talk of period, because when
property. you talk of period, you are implying that the
penalty is divisible because the period referred
to is the minimum, the medium, and the
Questions & Answers maximum. If it is indivisible, there is no such
thing as minimum, medium and maximum.
What accessory penalty is common to
all principal penalties? The capital punishment
Confiscation or forfeiture on the You were asked to state whether you are in
instruments or proceeds of the crime. favor or against capital punishment.
Understand that you are not taking the
examination in Theology. Explain the issue on
Bond to keep the peace the basis of social utility of the penalty. Is it
beneficial in deterring crimes or not? This
One of the principal penalties common to the should be the premise of your reasoning.
others is bond to keep the peace. There is no
crime under the Revised Penal Code which
carries this penalty. Designation of penalty
1. If bond to keep the peace is not When the judge sentenced the accused to the
the same as bond for good behavior, are they penalty of reclusion perpetua, but instead of
one and the same bond that differ only in saying reclusion perpetua, it sentenced the
name? accused to life imprisonment, the designation
is wrong.
No. The legal effect of each is entirely
different. The legal effect of a failure to post a
bond to keep the peace is imprisonment either Reclusion perpetua as modified
for six months or 30 days, depending on
whether the felony committed is grave or less Before the enactment of Republic Act No.
grave on one hand, or it is light only on the 7659, which made amendments to the Revised
other hand. The legal effect of failure to post a Penal Code, the penalty of reclusion perpetua
bond for good behavior is not imprisonment but had no fixed duration. The Revised Penal
destierro under Article 284. Thus, it is clear Code provides in Article 27 that the convict
that the two bonds are not the same shall be pardoned after undergoing the penalty
considering that the legal effect or the failure to for thirty years, unless by reason of his conduct
put up the bond is not the same. or some other serious cause, he is not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 73
Ultimately, the question arises: What then may penalty may not be meted out on an
be the reason for the amendment fixing the offender who was below 18 years of
duration of reclusion perpetua? This question age at the time of the commission of
was answered in the same case of People v. the crime because Article 68 the lowers
Lucas by quoting pertinent portion of the the imposable penalty upon such
decision in People v. Reyes, 212 SCRA 402, offenders by at least one degree than
thus: that prescribed for the crime.
Innovations on the imposition of the death (1) When there is a principal penalty of
penalty imprisonment or any other principal
penalty and it carries with it a fine; and
Aside form restoring the death penalty for
certain heinous crimes, Republic Act No. 7659 (2) When penalty is only a fine.
made innovations on the provisions of the
Revised Penal Code regarding the imposition Therefore, there shall be no subsidiary penalty
of the death penalty: for the non-payment of damages to the
offended party.
(1) Article 47 has been reworded to
expressly include among the instances This subsidiary penalty is one of important
where the death penalty shall not be matter under the title of penalty. A subsidiary
imposed, the case of an offender who penalty is not an accessory penalty. Since it is
is below 18 years old at the time of the not an accessory penalty, it must be expressly
commission of the offense. But even stated in the sentence, but the sentence does
without this amendment, the death not specify the period of subsidiary penalty
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 75
because it will only be known if the convict later called to that effect, thereafter, it tried to
cannot pay the fine. The sentence will merely modify the sentence to include subsidiary
provide that in case of non-payment of the fine, penalty after period to appeal had already
the convict shall be required to save subsidiary elapsed, the addition of subsidiary penalty will
penalty. It will then be the prison authority who be null and void. This is tantamount to double
will compute this. jeopardy.
So even if subsidiary penalty is proper in a If the fine is prescribed with the penalty of
case, if the judge failed to state in the sentence imprisonment or any deprivation of liberty, such
that the convict shall be required to suffer imprisonment should not be higher than six
subsidiary penalty in case of insolvency to pay years or prision correccional. Otherwise, there
the fine, that convict cannot be required to is no subsidiary penalty.
suffer the accessory penalty. This particular
legal point is a bar problem. Therefore, the
judgment of the court must state this. If the When is subsidiary penalty applied
judgment is silent, he cannot suffer any
subsidiary penalty. (1) If the subsidiary penalty prescribed for
the non-payment of fine which goes
The subsidiary penalty is not an accessory with the principal penalty, the maximum
penalty that follows the principal penalty as a duration of the subsidiary penalty is one
matter of course. It is not within the control of year, so there is no subsidiary penalty
the convict to pay the fine or not and once the that goes beyond one year. But this will
sentence becomes final and executory and a only be true if the one year period is
writ of execution is issued to collect the fine, if higher than 1/3 of the principal penalty,
convict has property to levy upon, the same the convict cannot be made to undergo
shall answer for the fine, whether he likes it or subsidiary penalty more than 1/3 of the
not. It must be that the convict is insolvent to duration of the principal penalty and in
pay the fine. That means that the writ of no case will it be more than 1 year - get
execution issued against the property of the 1/3 of the principal penalty - whichever
convict, if any, is returned unsatisfied. is lower.
In People v. Subido, it was held that the (2) If the subsidiary penalty is to be
convict cannot choose not to serve, or not to imposed for non payment of fine and
pay the fine and instead serve the subsidiary the principal penalty imposed be fine
penalty. A subsidiary penalty will only be only, which is a single penalty, that
served if the sheriff should return the execution means it does not go with another
for the fine on the property of the convict and principal penalty, the most that the
he does not have the properties to satisfy the convict will be required to undergo
writ. subsidiary imprisonment is six months,
if the felony committed is grave or less
grave, otherwise, if the felony
Questions & Answers committed is slight, the maximum
duration of the subsidiary penalty is
only 15 days.
The penalty imposed by the judge is
fine only. The sheriff then tried to levy the There are some who use the term subsidiary
property of the defendant after it has become imprisonment. The term is wrong because the
final and executory, but it was returned penalty is not only served by imprisonment.
unsatisfied. The court then issued an order for The subsidiary penalty follows the nature of the
said convict to suffer subsidiary penalty. The principal penalty. If the principal penalty is
convict was detained, for which reason he filed destierro, this being a divisible penalty, and a
a petition for habeas corpus contending that penalty with a fixed duration, the non-payment
his detention is illegal. Will the petition of the fine will bring about subsidiary penalty.
prosper? This being a restriction of liberty with a fixed
duration under Article 39 for the nonpayment of
Yes. The judgment became final fine that goes with the destierro, the convict will
without statement as to subsidiary penalty, so be required to undergo subsidiary penalty and
that even if the convict has no money or it will also be in the form of destierro.
property to satisfy the fine, he cannot suffer
subsidiary penalty because the latter is not an Illustration:
accessory and so it must be expressly stated.
If the court overlooked to provide for subsidiary
penalty in the sentence and its attention was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 76
A convict was sentenced to suspension and further that as a judge, I am not in the
fine. This is a penalty where a public officer position to apply the Three-Fold Rule because
anticipates public duties, he entered into the the Three-Fold Rule is to be given effect when
performance of public office even before he the convict is already serving sentence in the
has complied with the required formalities. penitentiiary. It is the prison authority who will
Suppose the convict cannot pay the fine, may apply the Three-Fold Rule. As far as the court
he be required to undergo subsidiary penalty? is concerned, that will be the penalty to be
imposed.
Yes, because the penalty of suspension has a
fixed duration. Under Article 27, suspension For the purposes of subsidiary penalty, apply
and destierro have the same duration as the Three-Fold Rule if the penalty is arresto
prision correccional. So the duration does not mayor and a fine of P200.00 multiplied by 3.
exceed six years. Since it is a penalty with a This means one year and six months only. So,
fixed duration under Article 39, when there is a applying the Three- Fold Rule, the penalty
subsidiary penalty, such shall be 1/3 of the does not go beyond six years. Hence, for the
period of suspension which in no case beyond non- payment of the fine of P10,000.00, the
one year. But the subsidiary penalty will be convict shall be required to undergo subsidiary
served not by imprisonment but by continued penalty. This is because the imprisonment that
suspension. will be served will not go beyond six years. It
will only be one year and six months, since in
If the penalty is public censure and fine even if the service of the sentence, the Three-Fold
the public censure is a light penalty, the convict Rule will apply.
cannot be required to pay the fine for
subsidiary penalty for the non-payment of the It is clearly provided under Article 39 that if the
fine because public censure is a penalty that means of the convict should improve, even if
has no fixed duration. he has already served subsidiary penalty, he
shall still be required to pay the fine and there
Do not consider the totality of the imprisonment is no deduction for that amount which the
the convict is sentenced to but consider the convict has already served by way of
totality or the duration of the imprisonment that subsidiary penalty.
the convict will be required to serve under the
Three-Fold Rule. If the totality of the
imprisonment under this rule does not exceed Articles 63 and 64
six years, then, even if the totality of all the
sentences without applying the Three-Fold If crime committed is parricide, penalty is
Rule will go beyond six years, the convict shall reclusion perpetua. The accused, after
be required to undergo subsidiary penalty if he committing parricide, voluntarily surrendered
could not pay the fine. and pleaded guilty of the crime charged upon
arraignment. It was also established that he
Illustration: was intoxicated, and no aggravating
circumstances were present. What penalty
A collector of NAWASA collected from 50 would you impose?
houses within a certain locality. When he was
collecting NAWASA bills, the charges of all Reclusion perpetua, because it is an indivisible
these consumers was a minimum of 10. The penalty.
collector appropriated the amount collected
and so was charged with estafa. He was When there are two or more mitigating
convicted. Penalty imposed was arresto mayor circumstances and there is no aggravating
and a fine of P200.00 in each count. If you circumstance, penalty to be imposed shall be
were the judge, what penalty would you one degree lower to be imposed in the proper
impose? May the convict be required to period. Do not apply this when there is one
undergo subsidiary penalty in case he is aggravating circumstance.
insolvent to pay the fine?
Illustration:
The Three-Fold Rule should not applied by the
court. In this case of 50 counts of estafa, the There are about four mitigating circumstances
penalty imposed was arresto mayor and a fine and one aggravating circumstance. Court
of P200.00. Arresto mayor + P200.00 x 50. offsets the aggravating circumstance against
Arresto Mayor is six months x 50 = 25 years. the mitigating circumstance and there still
P200.00 x 50 = P10,000.00. Thus, I would remains three mitigating circumstances.
impose a penalty of arresto mayor and a fine of Because of that, the judge lowered the penalty
P200.00 multiplied by 50 counts and state by one degree. Is the judge correct?
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 77
If it is frustrated, penalty is one In Article 27, with respect to the range of each
degree lower than that prescribed penalty, the range of arresto menor follows
by law. arresto mayor, since arresto menor is one to 30
days or one month, while arresto mayor is one
If it is attempted, penalty is two month and one day to six months. On the
degrees lower than that prescribed other hand, the duration of destierro is the
by law. same as prision correccional which is six
months and one day to six years. But be this
This is so because the penalty as it is, under Article 71, in the scale of
prescribed by law for a crime refers penalties graduated according to degrees,
to the consummated stage. arresto mayor is higher than destierro.
(2) When the offender is an accomplice or In homicide under Article 249, the penalty is
accessory only reclusion temporal. One degree lower, if
homicide is frustrated, or there is an
Penalty is one degree lower in the case accomplice participating in homicide, is prision
of an accomplice. mayor, and two degrees lower is prision
correccional.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 78
This is true if the penalty prescribed by the These rules have nothing to do with mitigating
Revised Penal Code is a whole divisible or aggravating circumstances. These rules
penalty -- one degree or 2 degrees lower will refer to the lowering of penalty by one or two
also be punished as a whole. But generally, the degrees. As to how mitigating or aggravating
penalties prescribed by the Revised Penal circumstances may affect the penalty, the rules
Code are only in periods, like prision are found in Articles 63 and 64. Article 63
correcional minimum, or prision correcional governs when the penalty prescribed by the
minimum to medium. Revised Penal Code is indivisible. Article 64
governs when the penalty prescribed by the
Although the penalty is prescribed by the Revised Penal Code is divisible. When the
Revised Penal Code as a period, such penalty penalty is indivisible, no matter how many
should be understood as a degree in itself and ordinary mitigating circumstances there are,
the following rules shall govern: the prescribed penalty is never lowered by
degree. It takes a privileged mitigating
(1) When the penalty prescribed by the circumstance to lower such penalty by degree.
Revised Code is made up of a On the other hand, when the penalty
period, like prision correccional prescribed by the Revised Penal Code is
medium, the penalty one degree divisible, such penalty shall be lowered by one
lower is prision correccional degree only but imposed in the proper period,
minimum, and the penalty two when there are two or more ordinary mitigating
degrees lower is arresto mayor circumstance and there is no aggravating
maximum. In other words, each circumstance whatsoever.
degree will be made up of only one
period because the penalty
prescribed is also made up only of Article 75 Fines
one period.
(2) When the penalty prescribed by the Code With respect to the penalty of fine, if the fine
is made up of two periods of a given has to be lowered by degree either because
penalty, every time such penalty is the felony committed is only attempted or
lowered by one degree you have to frustrated or because there is an accomplice or
go down also by two periods. an accessory participation, the fine is lowered
by deducting 1/4 of the maximum amount of
Illustration: the fine from such maximum without changing
the minimum amount prescribed by law.
If the penalty prescribed for the crime is
prision correccional medium to Illustration:
maximum, the penalty one degree
lower will be arresto mayor maximum to If the penalty prescribed is a fine ranging from
prision correccional minimum, and the P200.00 to P500.00, but the felony is
penalty another degree lower will be frustrated so that the penalty should be
arresto mayor minimum to medium. imposed one degree lower, 1/4 of P500.00
Every degree will be composed of two shall be deducted therefrom. This is done by
periods. deducting P125.00 from P500.00, leaving a
difference of P375.00. The penalty one
(1) When the penalty prescribed by the degree lower is P375.00. To go another
Revised Penal Code is made up of degree lower, P125.00 shall again be deducted
three periods of different penalties, from P375.00 and that would leave a
every time you go down one degree difference of P250.00. Hence, the penalty
lower, you have to go down by three another degree lower is a fine ranging from
periods. P200.00 to P250.00. If at all, the fine has to
be lowered further, it cannot go lower than
Illustration: P200.00. So, the fine will be imposed at
P200.00. This rule applies when the fine has
The penalty prescribed by the Revised to be lowered by degree.
Penal Code is prision mayor maximum
to reclusion temporal medium, the
penalty one degree lower is prision Article 66
correccional maximum to prision mayor
medium. Another degree lower will be In so far as ordinary mitigating or aggravating
arresto mayor maximum to prision circumstance would affect the penalty which is
correccional medium. in the form of a fine, Article 66 of the Revised
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 79
Penal Code shall govern. Under this article, it apply whether the sentences are the product of
is discretionary upon the court to apply the fine one information in one court, whether the
taking into consideration the financial means of sentences are promulgated in one day or
the offender to pay the same. In other words, whether the sentences are promulgated by
it is not only the mitigating and/or aggravating different courts on different days. What is
circumstances that the court shall take into material is that the convict shall serve more
consideration, but primarily, the financial than three successive sentences.
capability of the offender to pay the fine. For
the same crime, the penalty upon an accused For purposes of the Three-Fold Rule, even
who is poor may be less than the penalty upon perpetual penalties are taken into account. So
an accused committing the same crime but not only penalties with fixed duration, even
who is wealthy penalties without any fixed duration or
. indivisible penalties are taken into account.
For instance, when there are two offenders For purposes of the Three-Fold rule, indivisible
who are co-conspirators to a crime, and their penalties are given equivalent of 30 years. If
penalty consists of a fine only, and one of them the penalty is perpetual disqualification, it will
is wealthy while the other is a pauper, the court be given and equivalent duration of 30 years,
may impose a higher penalty upon the wealthy so that if he will have to suffer several
person and a lower fine for the pauper. perpetual disqualification, under the Three-Fold
rule, you take the most severe and multiply it
Penalty for murder under the Revised Penal by three. The Three-Fold rule does not apply
Code is reclusion temporal maximum to death. to the penalty prescribed but to the penalty
So, the penalty would be reclusion temporal imposed as determined by the court.
maximum reclusion perpetua death. This
penalty made up of three periods. Illustration:
A person was sentenced to three death lower, the court will fix the minimum for the
sentences. Significance: If ever granted indeterminate sentence, and within the range
pardon for 1 crime, the two remaining penalties of the penalty arrived at as the maximum in the
must still be executed. indeterminate sentence, the court will fix the
maximum of the sentence. If there is a
This rule will apply only if sentences are to be privilege mitigating circumstance which has
served successively. been taken in consideration in fixing the
maximum of the indeterminate sentence, the
minimum shall be based on the penalty as
Act No. 4013 (Indeterminate Sentence Law), reduced by the privilege mitigating
as amended circumstance within the range of the penalty
next lower in degree.
Three things to know about the Indeterminate
Sentence Law: If the crime is a violation of a special law, in
fixing the maximum of the indeterminate
(1) Its purpose; sentence, the court will impose the penalty
within the range of the penalty prescribed by
(2) Instances when it does not apply; and the special law, as long as it will not exceed the
limit of the penalty. In fixing the minimum, the
(3) How it operates court can fix a penalty anywhere within the
range of penalty prescribed by the special law,
Indeterminate Sentence Law governs whether as long as it will not be less than the minimum
the crime is punishable under the Revised limit of the penalty under said law. No
Penal Code or a special Law. It is not limited mitigating and aggravating circumstances are
to violations of the Revised Penal Code. taken into account.
It applies only when the penalty served is The minimum and the maximum referred to in
imprisonment. If not by imprisonment, then it the Indeterminate Sentence Law are not
does not apply. periods. So, do not say, maximum or minimum
period. For the purposes of the indeterminate
Sentence Law, use the term minimum to refer
to the duration of the sentence which the
Purpose convict shall serve as a minimum, and when
we say maximum, for purposes of ISLAW, we
The purpose of the Indeterminate Sentence refer to the maximum limit of the duration that
law is to avoid prolonged imprisonment, the convict may be held in jail. We are not
because it is proven to be more destructive referring to any period of the penalty as
than constructive to the offender. So, the enumerated in Article 71.
purpose of the Indeterminate Sentence Law in
shortening the possible detention of the convict Courts are required to fix a minimum and a
in jail is to save valuable human resources. In maximum of the sentence that they are to
other words, if the valuable human resources impose upon an offender when found guilty of
were allowed prolonged confinement in jail, the crime charged. So, whenever the
they would deteriorate. Purpose is to preserve Indeterminate Sentence Law is applicable,
economic usefulness for these people for there is always a minimum and maximum of
having committed a crime -- to reform them the sentence that the convict shall serve. If the
rather than to deteriorate them and, at the crime is punished by the Revised Penal Code,
same time, saving the government expenses of the law provides that the maximum shall be
maintaining the convicts on a prolonged arrived at by considering the mitigating and
confinement in jail. aggravating circumstances in the commission
of the crime according to the proper rules of
If the crime is a violation of the Revised Penal the Revised Penal Code. To fix the maximum,
Code, the court will impose a sentence that consider the mitigating and aggravating
has a minimum and maximum. The maximum circumstances according to the rules found in
of the indeterminate sentence will be arrived at Article 64. This means
by taking into account the attendant mitigating
and/or aggravating circumstances according to (1) Penalties prescribed by the law for the
Article 64 of the Revised Penal Code. In crime committed shall be imposed in
arriving at the minimum of the indeterminate the medium period if no mitigating or
sentence, the court will take into account the aggravating circumstance;
penalty prescribed for the crime and go one
degree lower. Within the range of one degree
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 81
(2) If there is aggravating circumstance, no liberal or lenient to the offender. Therefore, the
mitigating, penalty shall be imposed in rule is, in applying the Indetermiante Sentence
the maximum; Law, it is that penalty arrived at by the court
after applying the mitigating and aggravating
(3) If there is mitigating circumstance, no circumstances that should be the basis.
aggravating, penalty shall be in the
minimum; Crimes punished under special law carry only
one penalty; there are no degree or periods.
(4) If there are several mitigating and Moreover, crimes under special law do not
aggravating circumstances, they shall consider mitigating or aggravating
offset against each other. Whatever circumstance present in the commission of the
remains, apply the rules. crime. So in the case of statutory offense, no
mitigating and no aggravating circumstances
(5) If there are two or more mitigating will be taken into account. Just the same,
circumstance and no aggravating courts are required in imposing the penalty
circumstance, penalty next lower in upon the offender to fix a minimum that the
degree shall be the one imposed. convict should serve, and to set a maximum as
the limit of that sentence. Under the law, when
Rule under Art 64 shall apply in determining the crime is punished under a special law, the
the maximum but not in determining the court may fix any penalty as the maximum
minimum. without exceeding the penalty prescribed by
special law for the crime committed. In the
In determining the applicable penalty according same manner, courts are given discretion to fix
to the Indeterminate Sentence Law, there is no a minimum anywhere within the range of the
need to mention the number of years, months penalty prescribed by special law, as long as it
and days; it is enough that the name of the will not be lower than the penalty prescribed.
penalty is mentioned while the Indeterminate
Sentence Law is applied. To fix the minimum Disqualification may be divided into three,
and the maximum of the sentence, penalty according to
under the Revised Penal Code is not the
penalty to be imposed by court because the (1) The time committed;
court must apply the Indeterminate Sentence
Law. The attendant mitigating and/or (2) The penalty imposed; and
aggravating circumstances in the commission
of the crime are taken into consideration only (3) The offender involved.
when the maximum of the penalty is to be
fixed. But in so far as the minimum is
concerned, the basis of the penalty prescribed The Indeterminate Sentence Law shall not
by the Revised Penal Code, and go one apply to:
degree lower than that. But penalty one
degree lower shall be applied in the same (1) Persons convicted of offense punishable
manner that the maximum is also fixed based with death penalty or life
only on ordinary mitigating circumstances. imprisonment;
This is true only if the mitigating circumstance
taken into account is only an ordinary (2) Persons convicted of treason, conspiracy
mitigating circumstance. If the mitigating or proposal to commit treason;
circumstance is privileged, you cannot follow
the law in so far as fixing the minimum of the (3) Persons convicted of misprision of treason,
indeterminate sentence is concerned; rebellion, sedition, espionage;
otherwise, it may happen that the maximum of
the indeterminate sentence is lower than its (4) Persons convicted of piracy;
minimum.
(5) Persons who are habitual delinquents;
In one Supreme Court ruling, it was held that
for purposes of applying the Indeterminate (6) Persons who shall have escaped from
Sentence Law, the penalty prescribed by the confinement or evaded sentence;
Revised Penal Code and not that which may
be imposed by court. This ruling, however, is (7) Those who have been granted conditional
obviously erroneous. This is so because such pardon by the Chief Executive and
an interpretation runs contrary to the rule of pro shall have violated the term thereto;
reo, which provides that the penal laws should
always be construed an applied in a manner
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 82
(8) Those whose maximum term of May a recidivist be given the benefit of
imprisonment does not exceed one year, Probation Law?
but not to those already sentenced by final
judgment at the time of the approval of As a general rule, no.
Indeterminate Sentence Law.
Exception: If the earlier conviction refers to a
Although the penalty prescribed for the felony crime the penalty of which does not exceed 30
committed is death or reclusion perpetua, if days imprisonment or a fine of not more than
after considering the attendant circumstances, P200.00, such convict is not disqualified of the
the imposable penalty is reclusion temporal or benefit of probation. So even if he would be
less, the Indeterminate Sentence Law applies convicted subsequently of a crime embraced in
(People v. Cempron, 187 SCRA 278). the same title of the Revised Penal Code as
that of the earlier conviction, he is not
disqualified from probation provided that the
Presidential Decree No. 968 (Probation Law) penalty of the current crime committed does
not go beyond six years and the nature of the
Among the different grounds of partial crime committed by him is not against public
extinction of criminal liability, the most order, national security or subversion.
important is probation. Probation is a manner
of disposing of an accused who have been Although a person may be eligible for
convicted by a trial court by placing him under probation, the moment he perfects an appeal
supervision of a probation officer, under such from the judgment of conviction, he cannot
terms and conditions that the court may fix. avail of probation anymore. So the benefit of
This may be availed of before the convict probation must be invoked at the earliest
begins serving sentence by final judgment and instance after conviction. He should not wait
provided that he did not appeal anymore from up to the time when he interposes an appeal or
conviction. the sentence has become final and executory.
The idea is that probation has to be invoked at
Without regard to the nature of the crime, only the earliest opportunity.
those whose penalty does not exceed six
years of imprisonment are those qualified for An application for probation is exclusively
probation. If the penalty is six years plus one within the jurisdiction of the trial court that
day, he is no longer qualified for probation. renders the judgment. For the offender to
apply in such court, he should not appeal such
If the offender was convicted of several judgment.
offenses which were tried jointly and one
decision was rendered where multiple Once he appeals, regardless of the purpose of
sentences imposed several prison terms as the appeal, he will be disqualified from
penalty, the basis for determining whether the applying for Probation, even though he may
penalty disqualifies the offender from probation thereafter withdraw his appeal.
or not is the term of the individual
imprisonment and not the totality of all the If the offender would appeal the conviction of
prison terms imposed in the decision. So even the trial court and the appellate court reduced
if the prison term would sum up to more than the penalty to say, less than six years, that
six years, if none of the individual penalties convict can still file an application for probation,
exceeds six years, the offender is not because the earliest opportunity for him to
disqualified by such penalty from applying for avail of probation came only after judgment by
probation. the appellate court.
On the other hand, without regard to the Whether a convict who is otherwise qualified
penalty, those who are convicted of subversion for probation may be give the benefit of
or any crime against the public order are not probation or not, the courts are always
qualified for probation. So know the crimes required to conduct a hearing. If the court
under Title III, Book 2 of the Revised Penal denied the application for probation without the
Code. Among these crimes is Alarms and benefit of the hearing, where as the applicant
Scandals, the penalty of which is only arresto is not disqualified under the provision of the
menor or a fine. Under the amendment to the Probation Law, but only based on the report of
Probation Law, those convicted of a crime the probation officer, the denial is correctible by
against public order regardless of the penalty certiorari, because it is an act of the court in
are not qualified for probation. excess of jurisdiction or without jurisdiction, the
order denying the application therefore is null
and void.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 83
Generally, the courts do not grant an (3) Probation will depreciate the
application for probation for violation of the seriousness of the crime.
Dangerous Drugs Law, because of the
prevalence of the crime. So it is not along the The probation law imposes two kinds of
purpose of probation to grant the convict the conditions:
benefit thereof, just the individual rehabilitation
of the offender but also the best interest of the (1) Mandatory conditions; and
society and the community where the convict
would be staying, if he would be released on (2) Discretionary conditions.
probation. To allow him loose may bring about
a lack of respect of the members of the
community to the enforcement of penal law. In Mandatory conditions:
such a case, the court even if the crime is
probationable may still deny the benefit of (1) The convict must report to the
probation. Probation Officer (PO) designated in
the court order approving his
Consider not only the probationable crime, but application for Probation within 72
also the probationable penalty. If it were the hours from receipt of Notice of such
non-probationable crime, then regardless of order approving his application; and
the penalty, the convict cannot avail of
probation. Generally, the penalty which is not (2) The convict, as a probationer, must
probationable is any penalty exceeding six report to the PO at least once a month
years of imprisonment. Offenses which are not during the period of probation unless
probationable are those against natural sooner required by the PO.
security, those against public order and those
with reference to subversion. These conditions being mandatory, the
moment any of these is violate, the probation is
Persons who have been granted of the benefit cancelled.
of probation cannot avail thereof for the
second time. Probation is only available once
and this may be availed only where the convict Discretionary conditions:
starts serving sentence and provided he has
not perfected an appeal. If the convict The trial court which approved the application
perfected an appeal, he forfeits his right to for probation may impose any condition which
apply for probation. As far as offenders who may be constructive to the correction of the
are under preventive imprisonment, that offender, provided the same would not violate
because a crime committed is not bailable or the constitutional rights of the offender and
the crime committed, although bailable, they subject to this two restrictions: (1) the
cannot afford to put up a bail, upon conditions imposed should not be unduly
promulgation of the sentence, naturally he restrictive of the probationer; and (2) such
goes back to detention, that does not mean condition should not be incompatible with the
that they already start serving the sentence freedom of conscience of the probationer
even after promulgation of the sentence,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 84
Criminal liability is totally extinguished as Where the offender dies before final judgment,
follows: his death extinguishes both his criminal and
civil liabilities. So while a case is on appeal,
(1) By the death of the convict as to the offender dies, the case on appeal will be
personal penalties; and as to pecuniary dismissed. The offended party may file a
penalties, liability therefore is separate civil action under the Civil Code if any
extinguished only when the death of the other basis for recovery of civil liability exists as
offender occurs before final judgment provided under Art 1157 Civil Code. (People v.
Bayotas, decided on September 2, 1994)
(2) By service of sentence;
period is good only for 60 days. shall not run in the meantime. The crime
After which the prescription will committed does not include the initial evasion
resume to run, whether the of service of sentence that the convict must
conciliation or mediation is perform before the penalty shall begin to
terminated for not; prescribe, so that the initial crime of evasion of
service of sentence does not suspend the
(2) When criminal case is filed in the prescription of penalty, it is the commission of
prosecutors office, the prescription of the other crime, after the convict has evaded the
crime is suspended until the accused is service of penalty that will suspend such
convicted or the proceeding is terminated period.
for a cause not attributable to the accused.
In the case of the prescription of the penalty, Partial extinction of criminal liability
the moment the convict commits another crime
while he is fugitive from justice, prescriptive
period of the penalty shall be suspended and
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 87
Civil liability of the offender falls under three Property will have to be restored to the
categories: offended party even this would require the
taking of the property from a third person.
(1) Restitution and restoration; Where personal property was divested from
the offended party pursuant to the commission
(2) Reparation of the damage caused; and of the crime, the one who took the same or
accepted the same would be doing so without
(3) Indemnification of consequential damages. the benefit of the just title. So even if the
property may have been bought by the third
person, the same may be taken from him and
Restitution or restoration restored to the offended party without an
obligation on the part of the offended party to
Restitution or restoration presupposes that the pay him whatever he paid.
offended party was divested of property, and
such property must be returned. If the property The right to recover what he has paid will be
is in the hands of a third party, the same shall against the offender who sold it to him. On the
nevertheless be taken away from him and other hand, if the crime was theft or robbery,
restored to the offended party, even though the one who received the personal property
such third party may be a holder for value and becomes a fence, he is not only required to
a buyer in good faith of the property, except restitute the personal property but he incurs
when such third party buys the property from a criminal liability in violation of the Anti-Fencing
public sale where the law protects the buyer. Law.
For example, if a third party bought a property If the property cannot be restituted anymore,
in a public auction conducted by the sheriff then the damage must be repaired, requiring
levied on the property of a judgment creditor the offender to pay the value thereof, as
for an obligation, the buyer of the property at determined by the court. That value includes
such execution sale is protected by law. The the sentimental value to the offended party, not
offended party cannot divest him thereof. So only the replacement cost. In most cases, the
the offended party may only resort to sentimental value is higher than the
replacement value. But if what would be
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 88
restored is brand new, then there will be an The offender carnapped a bridal car while the
allowance for depreciation, otherwise, the newly-weds were inside the church. Since the
offended party is allowed to enrich himself at car was only rented, consequential damage
the expense of the offender. So there will be a not only to the newly-weds but also to the
corresponding depreciation and the offended entity which rented the car to them.
party may even be required to pay something
just to cover the difference of the value of what Most importantly, refer to the persons who are
was restored to him. civilly liable under Articles 102 and 103. This
pertains to the owner, proprietor of hotels, inns,
The obligation of the offender transcends to his taverns and similar establishments, an
heirs, even if the offender dies, provided he obligation to answer civilly for the loss or
died after judgment became final, the heirs property of their guests.
shall assume the burden of the civil liability, but
this is only to the extent that they inherit Under Articloe 102, two conditions must be
property from the deceased, if they do not present before liability attaches to the
inherit, they cannot inherit the obligations. inkeepers, tavernkeepers and proprietors:
The right of the offended party transcends to (1) The guest must have informed the
heirs upon death. The heirs of the offended management in advance of his
party step into the shoes of the latter to having brought to the premises
demand civil liability from the offender. certain valuables aside from the
usual personal belongings of the
guest; and
Reparation of the damage caused
(2) The guest must have followed the rules
In case of human life, reparation of the and regulations prescribed by the
damage cause is basically P50,000.00 value of management of such inn, tavern, or similar
human life, exclusive of other forms of establishment regarding the safekeeping of
damages. This P50,000.00 may also increase said valuables.
whether such life was lost through intentional
felony or criminal negligence, whether the The Supreme Court ruled that even though the
result of dolo or culpa. Also in the crime of guest did not obey the rules and regulations
rape, the damages awarded to the offended prescribed by the management for safekeeping
woman is generally P30,000.00 for the of the valuables, this does not absolve
damage to her honor. In earlier rulings, the management from the subsidiary civil liability.
amount varied, whether the offended woman is Non-compliance with such rules and
younger or a married woman. Supreme Court regulations but the guests will only be regarded
ruled that even if the offended woman does not as contributory negligence, but it wont absolve
adduce evidence or such damage, court can the management from civil liability.
take judicial notice of the fact that if a woman
was raped, she inevitably suffers damages. Liability specially attaches when the
Under the Revised Rules on Criminal management is found to have violated any law
Procedure, a private prosecutor can recover all or ordinance, rule or regulation governing such
kinds of damages including attorneys fee. The establishment.
only limitation is that the amount and the
nature of the damages should be specified. Even if the crime is robbery with violence
The present procedural law does not allow a against or intimidation of persons or committed
blanket recovery of damages. Each kind of by the inkeepers employees, management will
damages must be specified and the amount be liable, otherwise, not liable because there is
duly proven. duress from the offender, liable only for theft
and force upon things.
(2) At the time the crime was committed, the To relate with Article 38, when there is an order
employee-employerr relationship or preference of pecuniary (monetary) liability,
must be existing between the two; therefore, restitution is not included here.
(3) The employee must have been found guilty There is not subsidiary penalty for non-
of the crime charged and payment of civil liability.
accordingly held civilly liable;
Subsidiary civil liability is imposed in the
(4) The writ of execution for the satisfaction of following:
the civil liability was returned unsatisfied
because the accused-employee does not (1) In case of a felony committed under the
have enough property to pay the civil compulsion of an irresistible force. The
liability. person who employed the irresistible force
is subsidiarily liable;
When these requisites concur, the employer
will be subsidiarily civilly liable for the full (2) In case of a felony committed under an
amount that his employee was adjudged civilly impulse of an equal or greater injury.
liable. It is already settled in jurisprudence that The person who generated such an
there is no need to file a civil action against the impulse is subsidiarily liable.
employer in order to enforce the subsidiary civil
liability for the crime committed by his The owners of taverns, inns, motels, hotels,
employee, it is enough that the writ of where the crime is committed within their
execution is returned unsatisfied. There is no establishment due to noncompliance with
denial of due process of law because the general police regulations, if the offender who
liability of the employer is subsidiary and not is primarily liable cannot pay, the proprietor, or
primary. He will only be liable if his employee owner is subsidiarily liable.
does not have the property to pay his civil
liability, since it is the law itself that provides Felonies committed by employees, pupils,
that such subsidiary liability exists and servants in the course of their employment,
ignorance of the law is not an excuse. schooling or household chores. The employer,
master, teacher is subsidiarily liable civilly,
Civil liability of the offender is extinguished in while the offender is primarily liable.
the same manner as civil obligation is
extinguished but this is not absolutely true. In case the accomplice and the principal
Under civil law, a civil obligation is extinguished cannot pay, the liability of those subsidiarily
upon loss of the thing due when the thing liable is absolute.
involved is specific. This is not a ground
applicable to extinction of civil liability in
criminal case if the thing due is lost, the COMPLEX CRIME
offender shall repair the damages caused.
Philosophy behind plural crimes: The
When there are several offenders, the court in treatment of plural crimes as one is to be
the exercise of its discretion shall determine lenient to the offender, who, instead of being
what shall be the share of each offender made to suffer distinct penalties for every
depending upon the degree of participation resulting crime is made to suffer one penalty
as principal, accomplice or accessory. If within only, although it is the penalty for the most
each class of offender, there are more of them, serious one and is in the maximum period.
such as more than one principal or more than Purpose is in the pursuance of the rule of pro
one accomplice or accessory, the liability in reo.
each class of offender shall be subsidiary.
Anyone of the may be required to pay the civil If be complexing the crime, the penalty would
liability pertaining to such offender without turn out to be higher, do not complex anymore.
prejudice to recovery from those whose share
have been paid by another. Example: Murder and theft (killed with
treachery, then stole the right).
If all the principals are insolvent, the obligation Penalty: If complex Reclusion temporal
shall devolve upon the accomplice(s) or maximum to death.
accessory(s). But whoever pays shall have the If treated individually Reclusion temporal to
right of covering the share of the obligation Reclusion Perpetua.
from those who did not pay but are civilly
liable.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 90
A compound crime is one where a single act Abetting committed during the encounter
produces two or more crimes. between rebels and government troops such
that the homicide committed cannot be
A complex crime strictly speaking is one where complexed with rebellion. This is because they
the offender has to commit an offense as a are indispensable part of rebellion. (Caveat:
means for the commission of another offense. Ortega says rebellion can be complexed with
It is said that the offense is committed as a common crimes in discussion on Rebellion)
necessary means to commit the other offense.
Necessary should not be understood as The complex crime lies actually in the first form
indispensable, otherwise, it shall be under Article 148.
considered absorbed and not giving rise to a
complex crime. The first form of the complex crime is actually a
compound crime, is one where a single act
A composite crime is one in which substance is constitutes two or more grave and/or less
made up of more than one crime, but which in grave felonies. The basis in complexing or
the eyes of the law is only a single indivisible compounding the crime is the act. So that
offense. This is also known as special when an offender performed more than one
complex crime. Examples are robbery with act, although similar, if they result in separate
homicide, robbery with rape, rape with crimes, there is no complex crime at all,
homicide. These are crimes which in the eyes instead, the offender shall be prosecuted for as
of the law are regarded only as a single many crimes as are committed under separate
indivisible offense. information.
committed. In this case it is not the singleness tied becase he was a Hajji, so the Hajji
of the act but the singleness of the impulse remonstrated and there was commotion. At
that has been considered. There are cases the height of the commotion, Lawas ordered
where the Supreme Court held that the crime his men to fire, and the soldiers mechanically
committed is complex even though the fired. Eleven were killed and several others
offender performed not a single act but a were wounded. The question of whether the
series of acts. The only reason is that the constabulary soldiers should be prosecuted for
series of acts are impelled by a single criminal the killing of each under a separate information
impulse. has reached the Supreme Court. The
Supreme Court ruled that the accused should
be prosecuted only in one information,
CONTINUED AND CONTINUING CRIMES because a complex crime of multiple homicide
was committed by them.
In criminal law, when a series of acts are
perpetrated in pursuance of a single criminal In another case, a band of robbers came
impulse, there is what is called a continued across a compound where a sugar mill is
crime. In criminal procedure for purposes of located. The workers of said mill have their
venue, this is referred to as a continuing crime. quarters within the compound. The band of
robbers ransacked the different quarters
The term continuing crimes as sometimes therein. It was held that there is only one
used in lieu of the term continued crimes, crime committed multiple robbery, not
however, although both terms are analogous, because of Article 48 but because this is a
they are not really used with the same import. continued crime. When the robbers entered
Continuing crime is the term used in criminal the compound, they were moved by a single
procedure to denote that a certain crime may criminal intent. Not because there were
be prosecuted and tried not only before the several quarters robbed. This becomes a
court of the place where it was originally complex crime.
committed or began, but also before the court
of the place where the crime was continued. The definition in Article 48 is not honored
Hence, the term continuing crime is used in because the accused did not perform a single
criminal procedure when any of the material act. There were a series of acts, but the
ingredients of the crime was committed in decision in the Lawas case is correct. The
different places. confusion lies in this. While Article 48 speaks
of a complex crime where a single act
A continued crime is one where the offender constitutes two or more grave or less grave
performs a series of acts violating one and the offenses, even those cases when the act is not
same penal provision committed at the same a single but a series of acts resulting to two or
place and about the same time for the same more grave and less grave felonies, the
criminal purpose, regardless of a series of acts Supreme Court considered this as a complex
done, it is regarded in law as one. crime when the act is the product of one single
criminal impulse.
In People v. de Leon, where the accused took
five roosters from one and the same chicken If confronted with a problem, use the standard
coop, although, the roosters were owned by or condition that it refers not only to the
different persons, it was held that there is only singleness of the act which brought two or
one crime of theft committed, because the more grave and/less grave felonies. The
accused acted out of a single criminal impulse Supreme Court has extended this class of
only. However performing a series of acts but complex crime to those cases when the
this is one and the same intent Supreme Court offender performed not a single act but a
ruled that only one crime is committed under series of acts as long as it is the product of a
one information. single criminal impulse.
In People v. Lawas, the accused constabulary You cannot find an article in the Revised Penal
soldiers were ordered to march with several Code with respect to the continued crime or
muslims from one barrio to another place. continuing crime. The nearest article is Article
These soldiers feared that on the way, some of 48. Such situation is also brought under the
the Muslims may escape. So Lawas ordered operation of Article 48.
the men to tie the Muslims by the hand
connecting one with the other, so no one would In People v. Garcia, the accused were
run away. When the hands of the Muslims convicts who were members of a certain gang
were tied, one of them protested, he did not and they conspired to kill the other gang. Some
want to be included among those who were of the accused killed their victims in one place
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 92
within the same penitentiary, some killed the necessary to commit the other rapes.
others in another place within the same Therefore, separate complaints/information.
penitentiary. The Supreme Court ruled that all
accused should be punished under one In People v. Pabasa, the Supreme Court
information because they acted in conspiracy. through Justice Aquino ruled that there is only
The act of one is the act of all. Because there one count of forcible abduction with rape
were several victims killed and some were committed by the offenders who abducted the
mortally wounded, the accused should be held two women and abused them several times.
for the complex crime of multiple homicide with This was only a dissenting opinion of Justice
multiple frustrated homicide. There is a Aquino, that there could be only one complex
complex crime not only when there is a single crimeof abduction with rape, regardless of the
act but a series of acts. It is correct that when number of rapes committed because all the
the offender acted in conspiracy, this crime is rapes are but committed out of one and the
considered as one and prosecuted under one same lewd design which impelled the offender
information. Although in this case, the to abduct the victim.
offenders did not only kill one person but killed
different persons, so it is clear that in killing of In People v. Bojas, the Supreme Court
one victim or the killing of another victim, followed the ruling in People v. Jose that the
another act out of this is done simultaneously. four men who abducted and abused the
Supreme Court considered this as complex. offended women were held liable for one crime
Although the killings did not result from one one count or forcible abudction with rape and
single act. distinct charges for rape for the other rapes
committed by them.
In criminal procedure, it is prohibited to charge
more than one offense in an information, In People v. Bulaong, the Supreme Court
except when the crimes in one information adopted the dissenting opinion of Justice
constitute a complex crime or a special Aquino in People v. Pabasa, that when several
complex crime. persons abducted a woman and abused her,
regardless of the number of rapes committed,
So whenever the Supreme Court concludes there should only be one complex crime of
that the criminal should be punished only once, forcible abduction with rape. The rapes
because they acted in conspiracy or under the committed were in the nature of a continued
same criminal impulse, it is necessary to crime characterized by the same lewd design
embody these crimes under one single which is an essential element in the crime of
information. It is necessary to consider them forcible abduction.
as complex crimes even if the essence of the
crime does not fit the definition of Art 48, The abuse amounting to rape is complexed
because there is no other provision in the with forcible abduction because the abduction
RPC. was already consummated when the victim
was raped. The forcible abduction must be
Duplicity of offenses, in order not to violate this complexed therewith. But the multiple rapes
rule, it must be called a complex crime. should be considered only as one because
they are in the nature of a continued crime.
In earlier rulings on abduction with rape, if
several offenders abducted the woman and Note: This is a dangerous view because the
abused her, there is multiple rape. The abductors will commit as much rape as they
offenders are to be convicted of one count of can, after all, only one complex crime of rape
rape and separately charged of the other would arise.
rapes.
In adultery, each intercourse constitutes one
In People v. Jose, there were four participants crime. Apparently, the singleness of the act is
here. They abducted the woman, after which, not considered a single crime. Each
the four took turns in abusing her. It was held intercourse brings with it the danger of bringing
that each one of the four became liable not one stranger in the family of the husband.
only for his own rape but also for those
committed by the others. Each of the four Article 48 also applies in cases when out of a
offenders was convicted of four rapes. In the single act of negligence or imprudence, two or
eyes of the law, each committed four crimes of more grave or less grave felonies resulted,
rape. One of the four rapes committed by one although only the first part thereof (compound
of them was complexed with the crime of crime). The second part of Article 48 does not
abduction. The other three rapes are distinct apply, referring to the complex crime proper
counts of rape. The three rapes are not because this applies or refers only to a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW 93