Justifying Circumstances a persons good name.

Stand ground when in the right - the law does not require a
By criminologists - Sunday, June 1, 2014 - No Comments
person to retreat when his assailant is rapidly advancing upon
him with a deadly weapon.
Justifying Circumstances
NOTE: Under Republic Act 9262 (Anti-Violence Against
Women and Their Children Act of 2004), victim-survivors who
Justifying Circumstances where the act of a person is in
are found by the Courts to be suffering from Battered Woman
accordance with law such that said person is deemed not to
Syndrome (BWS) do not incur any criminal or civil liability
have
despite absence of the necessary elements for the justifying
violated the law.
circumstance of self-defense in the RPC. BWS is a
scientifically defined pattern of psychological and behavioral
General Rule: No criminal and civil liability incurred.
symptoms found in women living in battering relationships as
a result of cumulative abuse.
Exception: There is civil liability with respect to par. 4 where
the liability is borne by persons benefited by the act.
Par. 2 Defense of Relative
Elements:
Par. 1 Self-defense
1. Unlawful Aggression (indispensable requirement)
Elements:
2. reasonable necessity of the means employed to prevent or
1. Unlawful Aggression
repel it
- indispensable requirement
3. In case the provocation was given by the person attacked,
- There must be actual physical assault or aggression or an
the one making the defense had no part in such provocation.
immediate and imminent threat, which must be offensive and
positively strong.
Relative entitled to the defense:
- The defense must have been made during the existence of
1. spouse
aggression, otherwise, it is no longer justifying.
2. ascendants
- While generally an agreement to fight does not constitute
3. descendants
unlawful aggression, violation of the terms of the agreement
4. legitimate, natural or adopted brothers and sisters, or
to fight is considered an exception.
relatives by affinity in the same degrees
5. relatives by consanguinity within the 4th civil degree
2. Reasonable necessity of the means employed to prevent or
repel it
NOTE: The relative defended may be the original aggressor.
All that is required to justify the act of the relative defending
Test of reasonableness depends on:
is that he takes no part in such provocation.
(1) weapon used by aggressor
(2) physical condition, character, size and other
Par. 3 Defense of Stranger
circumstances of aggressor
Elements:
(3) physical condition, character, size and circumstances
1. unlawful aggression (indispensable requirement)
of person defending himself
2. reasonable necessity of the means employed to prevent or
(4) place and occasion of assault
repel it
3. person defending be not induced by revenge, resentment
3. Lack of sufficient provocation on the part of the person
or other evil motive
defending himself
Par. 4 State of Necessity (Avoidance of Greater Evil or
NOTE: Perfect equality between the weapons used, nor
Injury)
material commensurability between the means of attack and
Elements:
defense by the one defending himself and that of the
1. evil sought to be avoided actually exists
aggressor is not required
2. injury feared be greater than that done to avoid it
3. no other practical and less harmful means of preventing it
REASON: the person assaulted does not have sufficient
opportunity or time to think and calculate.
NOTE: The necessity must not be due to the negligence or
violation of any law by the actor.
Rights included in self-defense:
1. defense of person
Par. 5 Fulfillment of Duty or Lawful Exercise of a Right
2. defense of rights protected by law
or Office
3. defense of property (only if there is also an actual and
Elements:
imminent danger on the person of the one defending)
1. accused acted in the performance of duty or in the lawful
4. defense of chastity
exercise of a right or office
2. the injury caused or offense committed be the necessary
Kinds of Self-Defense:
consequence of the due performance of the duty, or the lawful
1. self-defense of chastity there must be an attempt to
exercise of such right or office.
rape the victim
2. defense of property must be coupled with an attack on
NOTE: The accused must prove that he was duly appointed to
the person of the owner, or on one entrusted with the care of
the position claimed he was discharging at the time of the
such property.
commission of the offense. It must also be shown that the
offense committed was the necessary consequence of such
People v. Narvaez, (GR No. L-33466-67, April 20, 1983)
fulfillment of duty, or lawful exercise of a right or office.
Attack on property alone was deemed sufficient to comply
with element of unlawful aggression.
Par. 6 Obedience to a Superior Order
Elements:
3. self-defense in libel justified when the libel is aimed at
1. an order has been issued
2. order has a lawful purpose (not patently illegal)
3. means used by subordinate to carry out said order is lawful
NOTE: The superior officer giving the order cannot invoke this
justifying circumstance. Good faith is material, as the
subordinate is not liable for carrying out an illegal order if he
is not aware of its illegality and he is not negligent.
General Rule: Subordinate cannot invoke this circumstance
when order is patently illegal.
Exception: When there is compulsion of an irresistible force,
or under impulse of uncontrollable fear.
Circumstances Which Exempt from Criminal Liability
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ART.12
EXEMPTING CIRCUMSTANCES grounds for exemption
from punishment because there is wanting in the agent of the
crime any of the conditions which make the act voluntary or
negligent.
Basis: The exemption from punishment is based on the
complete absence of intelligence, freedom of action, or intent,
or on the
absence of negligence on the part of the accused.
Burden of proof: Any of the circumstances is a matter of
defense and must be proved by the defendant to the
satisfaction of the court.
Par. 1 Imbecility or Insanity
IMBECILE one while advanced in age has a mental
development comparable to that of children between 2 and 7
years old. He is exempt in all cases from criminal liability.
INSANE one who acts with complete deprivation of
intelligence/reason or without the least discernment or with
total deprivation of freedom of will. Mere abnormality of the
mental faculties will not exclude imputability.
General Rule: Exempt from criminal liability
Exception: The act was done during a lucid interval.
NOTE: Defense must prove that the accused was insane at
the time of the commission of the crime because the
presumption is always in favor of sanity.
Par. 2 Under Nine Years of Age
Requisite: Offender is under 9 years of age at the time of the
commission of the crime. There is absolute criminal
irresponsibility in the case of a minor under 9 years of age.
NOTE: Under R.A. 9344 or the Juvenile Justice and Welfare
Act a minor 15 years and below is exempt from criminal
liability
Par. 3 Person Over 9 and Under 15 Acting Without
Discernment
NOTE: Such minor must have acted without discernment to
be exempt. If with discernment, he is criminally liable.
Presumption: The minor committed the crime without
discernment.
DISCERNMENT mental capacity to fully appreciate the
consequences of the unlawful act, which is shown by the:
1. manner the crime was committed
2. conduct of the offender after its commission
NOTE: Under R.A. 9344 a minor over 15 but below 18 who
acted without discernment is exempt from criminal liability
Par. 4 Accident without fault or intention of causing it
Elements:
1. A person is performing a lawful act
2. with due care
3. He causes injury to another by mere accident
4. Without fault or intention of causing it.
Par. 5 Irresistible Force
IRRESISTIBLE FORCE offender uses violence or physical
force to compel another person to commit a crime.
Elements:
1. The compulsion is by means of physical force.
2. The physical force must be irresistible.
3. The physical force must come from a third person
NOTE: Force must be irresistible so as to reduce the individual
to a mere instrument.
Par. 6 Uncontrollable Fear
UNCONTROLLABLE FEAR offender employs intimidation or
threat in compelling another to commit a crime.
DURESS use of violence or physical force
Elements:
1. The threat which causes the fear is of an evil greater than,
or at least equal to, that which he is required to commit.
2. It promises an evil of such gravity and imminence that an
ordinary man would have succumbed to it.
NOTE: Duress to be a valid defense should be based on real,
imminent or reasonable fear for ones life or limb. It should
not be inspired by speculative, fanciful or remote fear. A
threat of future injury is not enough.
ACTUS ME INVITO FACTUS NON EST MEUS ACTUS Any act
done by me against my will is not my act.
PAR 7. Insuperable Cause
INSUPERABLE CAUSE some motive, which has lawfully,
morally or physically prevented a person to do what the law
commands
Elements:
1. An act is required by law to be done.
2. A person fails to perform such act.
3. His failure to perform such act was due to some lawful or
insuperable cause.
Ex:
1. A priest cant be compelled to reveal what was confessed
to him.
2. No available transportation officer not liable for
arbitrary detention
3. Mother who was overcome by severe dizziness and
extreme debility, leaving child to die not liable for infanticide
(People v. Bandian, 63 Phil 530)
ABSOLUTORY CAUSES where the act committed is a crime
but for some reason of public policy and sentiment, there is
no penalty imposed. Exempting and justifying circumstances
are absolutory causes.

Examples of such other circumstances are:
1. spontaneous desistance (Art. 6)
2. accessories exempt from criminal liability (Art. 20)
3. Death or physical injuries inflicted under exceptional
circumstances (Art. 247)
4. persons exempt from criminal liability from theft,
swindling, malicious mischief (Art 332)
5. instigation
NOTE: Entrapment is NOT an absolutory cause. A buy-bust
operation conducted in connection with illegal drug-related
offenses is a form of entrapment.
Entrapment from Instigation
1. The ways and means are resorted to for the purpose of
trapping and capturing the lawbreaker in the execution of his
criminal plan. while The Instigator practically induces the
would-be accused into the commission of the offense and
himself becomes a co-principal
2. In Entrapment, not a bar to accused prosecution and
conviction while in Instigation, Accused will be acquitted.
3. Entrapment is not an absolutory cause while Instigation is
an absolutory cause.
Aggravating Circumstances
By criminologists - Monday, June 2, 2014 - No Comments
ART.14
Par. 1. That advantage be taken by the offender of his
public
position
Requisites:
1. Offender is public officer
2. Public officer must use the influence, prestige, or
ascendancy which his office gives him as means to realize
criminal purpose
It is not considered as an aggravating circumstance where
taking advantage of official position is made by law an
integral element of the crime or inherent in the offense,
Ex: malversation (Art. 217), falsification of a document
committed by public officers (Art. 171).
When the public officer did not take advantage of the
influence of his position, this aggravating circumstance is not
present
NOTE : Taking advantage of a public position is also inherent
in the case of accessories under Art. 19, par. 3 (harboring,
concealing, or assisting in the escape of the principal of the
crime), and in crimes committed by public officers (Arts. 204-
245).
Par. 2. That the crime be committed in contempt of or
with insult to public authorities
Requisites:
1. That the public authority is engaged in the exercise of his
functions.
2. That he who is thus engaged in the exercise of said
functions is not the person against whom the crime is
committed.
3. The offender knows him to be a public authority.
4. His presence has not prevented the offender from
committing the criminal act.
PERSON IN AUTHORITY public authority, or person who is
directly vested with jurisdiction and has the power to govern
and execute the laws
Ex:
1. Governor
2. Mayor
3. Barangay captain/ chairman
4. Councilors
5. Government agents
6. Chief of Police
NOTE: A teacher or professor of a public or recognized private
school is not a public authority within the contemplation of
this paragraph. While he is a person in authority under Art.
152, that status is only for purposes of Art. 148 (direct
assault) and Art. 152 (resistance and disobedience)
The crime should not be committed against the public
authority (otherwise it will constitute direct assault under
Art.148) This is NOT applicable when committed in the
presence of a mere agent.
AGENT subordinate public officer charged w/ the
maintenance of public order and protection and security of life
and property Ex: barrio vice lieutenant, barrio councilman
Par. 3. That the act be committed:
(1) with insult or in disregard of the respect due
the offended party on account of his
(a)rank,
(b) age, or
(c) sex or
(2) that it be committed in the dwelling of the
offended party, if the latter has not given provocation
Rules regarding par 3(1):
1. These circumstances shall only be considered as one
aggravating circumstance.
2. Rank, age, sex may be taken into account only in crimes
against persons or honor, they cannot be invoked in crimes
against property.
3. It must be shown that in the commission of the crime the
offender deliberately intended to offend or insult the sex, age
and rank of the offended party.
RANK The designation or title of distinction used to fix the
relative position of the offended party in reference to others
(There must be a difference in the social condition of the
offender and the offended party).
AGE may refer to old age or the tender age of the victim.
SEX refers to the female sex, not to the male sex.
The AC of disregard of rank, age, or sex is not applicable in
the following cases:
1. When the offender acted with passion and obfuscation.
2. When there exists a relationship between the offended
party and the offender.
3. When the condition of being a woman is indispensable in
the commission of the crime. (Ex: in parricide, abduction,
seduction and rape)
People vs. Lapaz, March 31, 1989
Disregard of sex and age are not absorbed in treachery
because treachery refers to the manner of the commission of
the crime, while disregard of sex and age pertains to the
relationship of the victim.
DWELLING must be a building or structure exclusively used
for rest and comfort (combination of house and store not
included), may be temporary as in the case of guests in a
house or bedspacers. It includes dependencies, the foot of the
staircase and the enclosure under the house

NOTES:
The aggravating circumstance of dwelling requires that the
crime be wholly or partly committed therein or in any integral
part thereof.
Dwelling does not mean the permanent residence or domicile
of the offended party or that he must be the owner thereof.
He must, however, be actually living or dwelling therein even
for a temporary duration or purpose.
It is not necessary that the accused should have actually
entered the dwelling of the victim to commit the offense; it is
enough that the victim was attacked inside his own house,
although the assailant may have devised means to perpetrate
the assault from without.
What aggravates the commission of the crime in ones
dwelling:
1. The abuse of confidence which the offended party reposed
in the offender by opening the door to him; or
2. The violation of the sanctity of the home by trespassing
therein with violence or against the will of the owner.
Meaning of provocation in the aggravating circumstance of
dwelling:
The provocation must be:
1. Given by the owner of the dwelling,
2. Sufficient, and
3. Immediate to the commission of the crime.
NOTE: If all these conditions are present, the offended party
is deemed to have given the provocation, and the fact that
the crime is committed in the dwelling of the offended party is
NOT an aggravating circumstance.
REASON: When it is the offended party who has provoked the
incident, he loses his right to the respect and consideration
due him in his own house
Dwelling is not aggravating in the following cases:
1. When both the offender and the offended party are
occupants of the same house, and this is true even if offender
is a servant in the house.
exception: In case of adultery in the conjugal dwelling, the
same is aggravating. However, if the paramour also dwells in
the conjugal dwelling, the applicable aggravating
circumstance is abuse of confidence.
2. When robbery is committed by the use of force upon
things, dwelling is not aggravating because it is inherent.
However, dwelling is aggravating in robbery with violence
against or intimidation of persons because this class of
robbery can be committed without the necessity of
trespassing the sanctity of the offended partys house.
3. In the crime needed to see this picture. dwelling, it is
inherent or included by law in defining the crime.
4. When the owner of the dwelling gave sufficient and
immediate provocation.
There must exist a close relation between the provocation
made by the victim and the commission of the crime by the
accused.
5. The victim is not a dweller of the house.
Par. 4. That the act be committed with:
(1) abuse of confidence or
(2) obvious ungratefulness
There are two aggravating circumstances present under par.4
which must be independently appreciated if present in the
same case
While one may be related to the other in the factual situation
in the case, they cannot be lumped together. Abuse of
confidence requires a special confidential relationship between
the offender and the victim, while this is not required for
there to be obvious ungratefulness
Requisites of Abuse of Confidence:
1. That the offended party had trusted the offender.
2. That the offender abused such trust by committing a
crime against the offended party.
3. That the abuse of confidence facilitated the
commission of the crime.
NOTE: Abuse of confidence is inherent in malversation (Art.
217), qualified theft (Art. 310), estafa by conversion or
misappropriation (Art. 315), and qualified seduction (Art.
337).
Requisites of obvious ungratefulness:
1. That the offended party had trusted the offender;
2. That the offender abused such trust by committing a
crime against the offended party.
3. That the act be committed with obvious
ungratefulness.
NOTE: The ungratefulness contemplated by par. 4 must be
such clear and manifest ingratitude on the part of the
accused.
Par. 5. That the crime be committed in the palace of the
Chief
Executive, or in his presence, or where public
authorities are engaged in the discharge of their
duties,
or in a place dedicated to religious worship.
Actual performance of duties is not necessary when
crime is committed in the palace or in the presence of the
Chief Executive
Requisites Regarding Public Authorities:
1. crime occurred in the public office
2. public authorities are actually performing their public
duties
Requisites (Place Dedicated to Religious Worship):
1. The crime occurred in a place dedicated to the
worship of God regardless of religion
2. The offender must have decided to commit the crime
when he entered the place of worship
Except for the third which requires that official functions
are being performed at the time of the commission of the
crime, the other places mentioned are aggravating per se
even if no official duties or acts of religious worship are being
conducted there.
Cemeteries, however respectable they may be, are not
considered as place dedicated to the worship of God.
Par. 6. That the crime be committed
(1) in the nighttime, or
(2) in an uninhabited place, or
(3) by a band,
whenever such circumstance may facilitate
the commission of the offense
NOTE: When present in the same case and their
element are distinctly palpable and can subsist independently,
they shall be considered separately.

When nighttime, uninhabited place or band aggravating:
1. When it facilitated the commission of the crime; or
2. When especially sought for by the offender to insure
the commission of the crime or for the purpose of impunity;
or
3. When the offender took advantage thereof for the
purpose of impunity
NIGHTTIME (obscuridad) that period of darkness
beginning at the end of dusk and ending at dawn.
Commission of the crime must begin and be
accomplished in the nighttime. When the place of the crime is
illuminated by light, nighttime is not aggravating. It is not
considered aggravating when the crime began at daytime.
Nighttime is not especially sought for when the notion to
commit the crime was conceived of shortly before commission
or when crime was committed at night upon a casual
encounter
However, nighttime need not be specifically sought for
when
(1) it facilitated the commission of the offense, or
(2) the offender took advantage of the same to
commit the crime
A bare statement that crime was committed at night is
insufficient. The information must allege that nighttime was
sought for or taken advantage of, or that it facilitated the
crime
GENERAL RULE: Nighttime is absorbed in treachery.
EXCEPTION: Where both the treacherous mode of attack
and nocturnity were deliberately decided upon in the same
case, they can be considered separately if such circumstances
have different factual bases. Thus:
In People vs. Berdida, et. al. (June 30, 1966),
nighttime was considered since it was purposely sought, and
treachery was further appreciated because the victims hands
and arms were tied together before he was beaten up by the
accused.
In People vs. Ong, et. al. (Jan. 30, 1975), there was
treachery as the victim was stabbed while lying face up and
defenseless, and nighttime was considered upon proof that it
facilitated the commission of the offense and was taken
advantage of by the accused.
UNINHABITED PLACE (despoblado) one where there
are no houses at all, a place at a considerable distance from
town, where the houses are scattered at a great distance
from each other
Solitude must be sought to better attain the criminal
purpose
What should be considered here is whether in the
place of the commission of the offense, there was a
reasonable possibility of the victim receiving some help.
BAND (en cuadrilla) whenever there are more than 3
armed malefactors that shall have acted together in the
commission of an offense
NOTE: There must be four or more armed men
If one of the four-armed malefactors is a principal by
inducement, they do not form a band because it is
undoubtedly connoted that he had no direct participation.
By a band is aggravating in crimes against property
or against persons or in the crime of illegal detention or
treason but does not apply to crimes against chastity
By a band is inherent in brigandage
This aggravating circumstance is absorbed in the
circumstance of abuse of superior strength
Par. 7. That the crime be committed on the occasion of
a
conflagration, shipwreck, earthquake, epidemic
or other
calamity or misfortune.
Requisites:
1. The crime was committed when there was a calamity
or misfortune
2. The offender took advantage of the state of confusion
or chaotic condition from such misfortune
If the offended was PROVOKED by the offended party
during the calamity/misfortune, this aggravating circumstance
may not be taken into consideration.
Par. 8. That the crime be committed with the aid of
(1) armed men or
(2) persons who insure or afford impunity
Requisites:
1. That armed men or persons took part in the
commission of the crime, directly or indirectly.
2. That the accused availed himself of their aid or relied
upon them when the crime was committed
NOTE: This aggravating circumstance requires that the
armed men are accomplices who take part in a minor capacity
directly or indirectly, and not when they were merely present
at the crime scene. Neither should they constitute a band, for
then the proper aggravating circumstance would be cuadrilla.
When This Aggravating Circumstance Shall Not Be
Considered:
1. When both the attacking party and the party attacked were
equally armed.
2. When the accused as well as those who cooperated with
him in the commission of the crime acted under the same
plan and for the same purpose.
3. When the others were only casually present and the
offender did not avail himself of any of their aid or when he
did not knowingly count upon their assistance in the
commission of the crime
If there are four armed men, aid of armed men is
absorbed in employment of a band. If there are three armed
men or less, aid of armed men may be the aggravating
circumstance.
Aid of armed men includes armed women.
Par. 9. That the accused is a recidivist
RECIDIVIST one who at the time of his trial for one
crime, shall have been previously convicted by final judgment
of another crime embraced in the same title of the RPC.
Requisites:
 1. That the offender is on trial for an offense;
2. That he was previously convicted by final judgment
of another crime;
3. That both the first and the second offenses are
embraced in the same title of the Code;
4. That the offender is convicted of the new offense.
MEANING OF at the time of his trial for one crime. It is
employed in its general sense, including the rendering of the
judgment. It is meant to include everything that is done in
the course of the trial, from arraignment until after sentence
is announced by the judge in open court.
What is controlling is the TIME OF THE TRIAL, not the
time of the commission of the offense.
GENERAL RULE: To prove recidivism, it is necessary to
allege the same in the information and to attach thereto
certified copy of the sentences rendered against the accused.
Exception: If the accused does not object and when
he admits in his confession and on the witness stand.
Recidivism must be taken into account no matter how
many years have intervened between the first and second
felonies.
Amnesty extinguishes the penalty and its effects.
However, pardon does not obliterate the fact that the accused
was a recidivist. Thus, even if the accused was granted a
pardon for the first offense but he commits another felony
embraced in the same title of the Code, the first conviction is
still counted to make him a recidivist
Being an ordinary aggravating circumstance,
recidivism affects only the periods of a penalty, except in
prostitution and vagrancy (Art. 202) and gambling (PD 1602)
wherein recidivism increases the penalties by degrees. No
other generic aggravating circumstance produces this effect
In recidivism it is sufficient that the succeeding
offense be committed after the commission of the preceding
offense provided that at the time of his trial for the second
offense, the accused had already been convicted of the first
offense.
If both offenses were committed on the same date,
they shall be considered as only one, hence, they cannot be
separately counted in order to constitute recidivism. Also,
judgments of convicted handed down on the same day shall
be considered as only one conviction.
REASON: Because the Code requires that to be
considered as a separate convictions, at the time of his trial
for one crime the accused shall have been previously
convicted by final judgment of the other.
Par. 10. That the offender has been previously
punished for an
offense to which the law attaches an equal or
greater
penalty or for two or more crimes to which it
attaches a
lighter penalty.
Requisites of Reiteracion Or Habituality:
1. That the accused is on trial for an offense;
2. That he previously served sentence for another
offense to which the law attaches an
a) Equal or
b) Greater penalty, or
c) For two or more crimes to which it attaches a
lighter penalty than that for the new offense; and
3. That he is convicted of the new offense
Habituality vs Recidivism
1. As To The First offense
Habituality - It is necessary that the offender shall
have served out his sentence for the first offense.
Recidivism - It is enough that a final judgment has
been rendered in the first offense.
2. As to the kind of offenses involved
Habituality - The previous and subsequent offenses
must not be embraced in the same title of the code.
Recidivism - Requires that the offenses be included in
the same title of the code.
THE FOUR FORMS OF REPETITION ARE:
1. Recidivism (par. 9, Art. 14) Where a person, on
separate occasions, is convicted of two offenses embraced in
the same title in the RPC. This is a generic aggravating
circumstance.
2. Reiteracion or Habituality (par. 10, Art. 14) Where
the offender has been previously punished for an offense to
which the law attaches an equal or greater penalty or for two
crimes to which it attaches a lighter penalty. This is a generic
aggravating circumstance.
3. Multi-recidivism or Habitual delinquency (Art. 62,
par, 5) Where a person within a period of ten years from the
date of his release or last conviction of the crimes of serious
or less serious physical injuries, robbery, theft, estafa or
falsification, is found guilty of the said crimes a third time or
oftener. This is an extraordinary aggravating circumstance.
4. Quasi-recidivism (Art. 160) Where a person
commits felony before beginning to serve or while serving
sentence on a previous conviction for a felony. This is a
special aggravating circumstance.
Since reiteracion provides that the accused has duly
served the sentence for his previous conviction/s, or is legally
considered to have done so, quasi-recidivism cannot at the
same time constitute reiteracion, hence this aggravating
circumstance cannot apply to a quasi-recidivist.
If the same set of facts constitutes recidivism and
reiteracion, the liability of the accused should be aggravated
by recidivism which can easily be proven.
Par. 11. That the crime be committed in consideration
of price,
reward or promise.
Requisites:
1. There are at least 2 principals:
- The principal by inducement (one who offers)
- The principal by direct participation (accepts)
2. The price, reward, or promise should be previous to
and in consideration of the commission of the criminal act
NOTE: The circumstance is applicable to both principals.
It affects the person who received the price / reward as well
as the person who gave it.
If without previous promise it was given voluntarily
after the crime had been committed as an expression of his
appreciation for the sympathy and aid shown by the other
accused, it should not be taken into consideration for the
purpose of increasing the penalty.

The price, reward or promise need not consist of or
refer to material things or that the same were actually
delivered, it being sufficient that the offer made by the
principal by inducement be accepted by the principal by direct
participation before the commission of the offense.
The inducement must be the primary consideration for
the commission of the crime.
Par. 12. That the crime be committed by means of
inundation, fire,
explosion, stranding of a vessel or intentional
damage thereto,
derailment of a locomotive, or by use of any
artifice involving
great waste and ruin
The circumstances under this paragraph will only be
considered as aggravating if and when they are used by the
offender as a means to accomplish a criminal purpose
When another aggravating circumstance already qualifies
the crime, any of these aggravating circumstances shall be
considered as generic aggravating circumstance only
When used as a means to kill another person, the crime is
qualified to murder.
Par. 13. That the act be committed with evident
premeditation
Requisites:
The prosecution must prove
1. The time when the offender determined to commit the
crime;
2. An act manifestly indicating that the culprit has clung to
his determination; and
3. A sufficient lapse of time between the determination and
execution, to allow him to reflect upon the consequences of
his act and to allow his conscience to overcome the resolution
of his will.
Essence of premeditation: The execution of the criminal act
must be preceded by cool thought and reflection upon the
resolution to carry out the criminal intent during the space of
time sufficient to arrive at a calm judgment.
To establish evident premeditation, it must be shown that
there was a period sufficient to afford full opportunity for
meditation and reflection, a time adequate to allow the
conscience to overcome the resolution of the will, as well as
outward acts showing the intent to kill. It must be shown that
the offender had sufficient time to reflect upon the
consequences of his act but still persisted in his determination
to commit the crime. (PEOPLE vs. SILVA, et. al., GR No.
140871, August 8, 2002)
Premeditation is absorbed by reward or promise.
When the victim is different from that intended, premeditation
is not aggravating. However, if the offender premeditated on
the killing of any person, it is proper to consider against the
offender the aggravating circumstance of premeditation,
because whoever is killed by him is contemplated in his
premeditation.
Par. 14. That (1) craft,
(2) fraud, or
(3) disguise be employed.
Requisite
The offender must have actually used craft, fraud, or disguise
to facilitate the commission of the crime.
CRAFT (astucia) involved the use of intellectual trickery or
cunning on the part of the accused. A chicanery resorted to
by the accused to aid in the execution of his criminal design.
It is employed as a scheme in the execution of the crime
FRAUD (fraude) insidious words or machinations used to
induce the victim to act in a manner which would enable the
offender to carry out his design
Craft and fraud may be absorbed in treachery if they have
been deliberately adopted as the means, methods or forms
for the treacherous strategy, or they may co-exist
independently where they are adopted for a different purpose
in the commission of the crime.
Ex:
In People vs. San Pedro (Jan. 22, 1980), where the accused
pretended to hire the driver in order to get his vehicle, it was
held that there was craft directed to the theft of the vehicle,
separate from the means subsequently used to treacherously
kill the defenseless driver.
In People vs. Masilang (July 11, 1986) there was also craft
where after hitching a ride, the accused requested the driver
to take them to a place to visit somebody, when in fact they
had already planned to kill the driver.
DISGUISE (disfraz) resorting to any device to conceal
identity
The test of disguise is whether the device or contrivance
resorted to by the offender was intended to or did make
identification more difficult, such as the use of a mask or false
hair or beard.
The use of an assumed name in the publication of a libel
constitutes disguise.
Par. 15. That (1) advantage be taken of superior
strength, or
(2) means be employed to weaken the
defense.
Par. 15 contemplates two aggravating circumstances, either of
which qualifies a killing to murder.
MEANING OF advantage be taken: To deliberately use
excessive force that is out of proportion to the means for self-
defense available to the person attacked. (PEOPLE vs.
LOBRIGAS, et. al., GR No. 147649, December 17, 2002)
No Advantage of Superior Strength In The Following:
1. One who attacks another with passion and obfuscation
does not take advantage of his superior strength.
2. When a quarrel arose unexpectedly and the fatal blow was
struck at a time when the aggressor and his victim were
engaged against each other as man to man.
TEST for abuse of superior strength: the relative strength of
the offender and his victim and whether or not he took
advantage of his greater strength.
When there are several offenders participating in the crime,
they must ALL be principals by direct participation and their
attack against the victim must be concerted and intended to
be so.
Abuse of superior strength is inherent in the crime of parricide
where the husband kills the wife. It is generally accepted that
the husband is physically stronger than the wife.
Abuse of superior strength is also present when the offender
uses a weapon which is out of proportion to the defense
available to the offended party.
NOTE: Abuse of superior strength absorbs cuadrilla (band).
MEANING OF Means employed to weaken defense - the
offender employs means that materially weaken the resisting
power of the offended party.
Ex:
1. Where one, struggling with another, suddenly throws a
cloak over the head of his opponent and while in this situation
he wounds or kills him.
2. One who, while fighting with another, suddenly casts sand
or dirt upon the latter eyes and then wounds or kills him.
3. When the offender, who had the intention to kill the victim,
made the deceased intoxicated, thereby materially weakening
the latters resisting power.
NOTE: This circumstance is applicable only to crimes against
persons, and sometimes against person and property, such as
robbery with physical injuries or homicide.
Par. 16. That the act be committed with treachery
(alevosia)
TREACHERY when the offender commits any of the crimes
against the person, employing means, methods or forms in
the execution thereof which tend directly and specially to
insure its execution without risk to himself arising from the
defense which the offended party might make.
Requisites:
1. That at the time of the attack, the victim was not in a
position to defend himself; and
2. That the offender consciously adopted the particular
means, method or form of attack employed by him.
TEST: It is not only the relative position of the parties but,
more specifically, whether or not the victim was forewarned
or afforded the opportunity to make a defense or to ward off
the attack.
Rules Regarding Treachery:
1. Applicable only to crimes against persons.
2. Means, methods or forms need not insure
accomplishment of crime.
3. The mode of attack must be consciously adopted.
Treachery is taken into account even if the crime against
the person is complexed with another felony involving a
different classification in the Code. Accordingly, in the special
complex crime of robbery with homicide, treachery but can be
appreciated insofar as the killing is concerned.
The suddenness of attack in itself does not constitute
treachery, even if the purpose was to kill, so long as the
decision was made all of a sudden and the victims helpless
position was accidental.
Treachery applies in the killing of a child even if the manner
of attack is not shown.
Treachery must be convincing evidence proved by clear and
Treachery is considered against all the offenders when there
is conspiracy.
WHEN MUST TREACHERY BE PRESENT:
1. When the aggression is continuous, treachery must be
present in the beginning of the assault. (PEOPLE vs.
MANALAD, GR No. 128593, August 14, 2002)
Thus, even if the deceased was shot while he was lying
wounded on the ground, it appearing that the firing of the
shot was a mere continuation of the assault in which the
deceased was wounded, with no appreciable time intervening
between the delivery of the blows and the firing of the shot, it
cannot be said that the crime was attended by treachery.
2. When the assault was not continuous, in that there was
interruption, it is sufficient that treachery was present at the
moment the fatal blow was given.
Hence, even though in the inception of the aggression
which ended in the death of the deceased, treachery was not
present, if there was a break in the continuity of the
aggression and at the time of the fatal wound was inflicted on
the deceased he was defenseless, the circumstance of
treachery must be taken into account.
Treachery Should Be Considered Even If:
1. The victim was not predetermined but there was a
generic intent to treacherously kill any first two persons
belonging to a class. (The same rule obtains for evident
premeditation).
2. There was aberratio ictus and the bullet hit a person
different from that intended. (The rule is different in evident
premeditation).
3. There was error in personae, hence the victim was not
the one intended by the accused. (A different rule is applied
in evident premeditation).
REASON FOR THE RULE: When there is treachery, it is
impossible for either the intended victim or the actual victim
to defend himself against the aggression.
TREACHERY ABSORBS:
1. Craft
2. Abuse of superior strength
3. Employing means to weaken the defense
4. Cuadrilla (band)
5. Aid of armed men
6. Nighttime
Par. 17. That means be employed or circumstances
brought about
which add ignominy to the natural effects of
the act
IGNOMINY is a circumstance pertaining to the moral order,
which adds disgrace and obloquy to the material injury
caused by the crime.
MEANING OF which add ignominy to the natural effects
thereof The means employed or the circumstances brought
about must tend to make the effects of the crime more
humiliating to victim or to put the offended party to shame,
or add to his moral suffering. Thus, it is incorrect to
appreciate ignominy where the victim was already dead when
his body was dismembered, for such act may not be
considered to have added to the victims moral suffering or
humiliation. (People vs. Carmina, G.R. No. 81404, January
28, 1991)
Applicable to crimes against chastity, less serious physical
injuries, light or grave coercion, and murder.
Par. 18. That the crime be committed after an unlawful
entry.
UNLAWFUL ENTRY - when an entrance is effected by a way
not intended for the purpose.
NOTE: Unlawful entry must be a means to effect entrance
and not for escape.
REASON FOR AGGRAVATION: One who acts, not respecting
the walls erected by men to guard their property and provide
for their personal safety, shows a greater perversity, a greater
audacity; hence, the law punishes him with more severity.
Par. 19. That as a means to the commission of a crime,
a wall,
roof, floor, door, or window be broken.
Applicable only if such acts were done by the offender to
effect ENTRANCE. If the wall, etc., is broken in order to get
out of the place, it is not an aggravating circumstance.
It is NOT necessary that the offender should have entered the
building Therefore, If the offender broke a window to enable
himself to reach a purse with money on the table near that
window, which he took while his body was outside of the
building, the crime of theft was attended by this aggravating
circumstance.
NOTE: Breaking in is lawful in the following instances:
1. An officer, in order to make an arrest, may break open a
door or window of any building in which the person to be
arrested is or is reasonably believed to be;
2. An officer, if refused admittance, may break open any door
or window to execute the search warrant or liberate himself,
3. Replevin, Section 4, Rule 60 of the Rules of Court
Par. 20. That the crime be committed
(1) with the aid of persons under fifteen (15)
years of age, or
(2) by means of motor vehicles, airships, or other
similar means.
TWO DIFFERENT CIRCUMSTANCES GROUPED IN THIS
PARAGRAPH:
1. With the aid of persons under fifteen years of age:
Intends to repress, so far as possible, the frequent
practice resorted to by professional criminals to avail
themselves of minors taking advantage of their
irresponsibility.
2. By means of motor vehicles, airships, or other similar
means:
Intended to counteract the great facilities found by
modern criminals in said means to commit crime and flee and
abscond once the same is committed.
Use of motor vehicle is aggravating where the accused
purposely and deliberately used the motor vehicle in going to
the place of the crime, in carrying away the effects thereof,
and in facilitating their escape.
MEANING OF or other similar means Should be
understood as referring to motorized vehicles or other
efficient means of transportation similar to automobile or
airplane.
Par. 21. That the wrong done in the commission of the
crime be
deliberately augmented by causing other wrong
not
necessary for its commission
CRUELTY there is cruelty when the culprit enjoys and
delights in making his victim suffer slowly and gradually,
causing unnecessary physical pain in the consummation of
the criminal act.
Requisites:
1. That the injury caused be deliberately increased by
causing other wrong;
2. That the other wrong be unnecessary for the execution
of the purpose of the offender.
Cruelty is not inherent in crimes against persons.
In order for it to be appreciated, there must be positive
proof that the wounds found on the body of the victim were
inflicted while he was still alive in order unnecessarily to
prolong physical suffering.
Cruelty cannot be presumed
If the victim was already dead when the acts of mutilation
were being performed, this would also qualify the killing to
murder due to outraging of his corpse.
Ignominy involves moral suffering. Cruelty refers to
physical suffering.
Unlike mitigating circumstances (par. 10, Art. 13), there is
NO provision for aggravating circumstances of a similar or
analogous character.
Alternative Circumstances
By criminologists - Monday, June 2, 2014 - No Comments
Alternative Circumstances
Alternative Circumstances Those which must be taken
into consideration as aggravating or mitigating according to
the
nature and effects of the crime and the other conditions
attending its commission.
Basis
The nature and effects of the crime and the other conditions
attending its commission.
The Alternative Circumstances Are:
1. Relationship;
2. Intoxication; and
3. Degree of instruction and education of the offender.
Relationship
The alternative circumstance of relationship shall be taken
into consideration when the offended party is the
1. Spouse,
2. Ascendant,
3. Descendant,
4. Legitimate, natural, or adopted brother or sister, or
5. Relative by affinity in the same degree of the offender.
Other Relatives Included (By Analogy):
1. The relationship of stepfather or stepmother and stepson
or stepdaughter.
REASON: It is the duty of the step-parents to bestow
upon their stepchildren a mothers/fathers affection, care and
protection.
2. The relationship of adopted parent and adopted child.
NOTE: But the relationship of uncle and niece is not covered
by any of the relationship mentioned.
When Relationship Mitigating And When Aggravating:
1. As a rule, relationship is mitigating in crimes against
property, by analogy to the provisions of Art. 332.
Thus, relationship is mitigating in the crimes of robbery
(Arts. 294-302), usurpation (Art. 312), fraudulent
insolvency
(Art. 314) and arson (Arts. 321-322, 325-326).
2. In crimes against persons
a) It is aggravating where the offended party is a relative of
(1). a higher degree than the offender, or
(2). when the offender and the offended party are
relatives of the same level (e.g. brothers)
b) But when it comes to physical injuries:
(1). It is aggravating when the crime involves serious
physical injuries (Art.263), even if the offended party is a
descendant of the offender. But the serious physical injuries
must not be inflicted by a parent upon his child by excessive
chastisement.
(2). It is mitigating when the offense committed is less
serious physical injuries or slight physical injuries, if the
offended party is a relative of a lower degree.
(3). It is aggravating if the offended party is a relative of
a higher degree of the offender.
c) When the crime is homicide or murder, relationship is
aggravating even if the victim of the crime is a relative of a
lower degree.
d) In rape, relationship is aggravating where a stepfather
raped his stepdaughter or in a case where a father raped his
own daughter.
3. In crimes against chastity, like acts of lasciviousness (Art.
336), relationship is always aggravating, regardless of
whether the offender is a relative of a higher or lower degree
of the offended party. When the qualification given to the
crime is derived from the relationship between the offender
and the offended party, it is neither mitigating nor
aggravating, because it is inseparable from and inherent in
the offense. (e.g. parricide, adultery and concubinage).
Intoxication - When Intoxication Mitigating and When
Aggravating:
1. Mitigating
a. If intoxication is not habitual, or
b. If intoxication is not subsequent to the plan to commit a
felony.
2. Aggravating
a. If intoxication is habitual, or
b. If it is intentional (subsequent to the plan to commit a
felony).
To Be Entitled to The Mitigating Circumstance of
Intoxication,
It Must Be Shown:
1. That at the time of the commission of the criminal act, the
accused has taken such quantity of alcoholic drinks as to blur
his reason and deprive him of a certain degree of control, and
2. That such intoxication is not habitual, or subsequent to the
plan to commit the felony.
To be mitigating, the accuseds state of intoxication must be
proved. Once intoxication is established by satisfactory
evidence, in the absence of proof to the contrary, it is
presumed to be non-habitual or unintentional.
Instruction or Education
As an alternative circumstance it does not refer only to
literacy but more to the level of intelligence of the accused.
Refers to the lack or presence of sufficient intelligence and
knowledge of the full significance of ones acts.
Low degree of instruction and education or lack of it is
generally mitigating. High degree of instruction and education
is aggravating, when the offender took advantage of his
learning in committing the crime.
GENERAL RULE: Lack of sufficient education is
mitigating
EXCEPTIONS:
1. Crimes against property (e.g. arson, estafa, theft, robbery)
2. Crimes against chastity, and
3. Treason because love of country should be a natural
feeling of every citizen, however unlettered or uncultured he
may be.