Criminal Law 2.

Actus non facit reum, nisi mens sit rea The act
It is a branch of public substantive law which defines cannot be criminal unless the mind is criminal.
crimes, treats of their nature and provides for their 3.Actus me invito factus non est meus actus An
punishment. It is a public law because it deals with act done by me against my will is not my act.
the relation of the individual with the State (REYES, 4.El que es causa de la causa es causa del mal
The Revised Penal Code, Book One, 17 th ed., 2008 causado He who is the cause of the cause is the
[hereinafter, REYES, Book One], p.1). cause of the evil caused (People v. Ural, G.R. No.
L-30801, March 24, 1974).
Criminal Law Criminal Procedure 5.In dubio, pro reo When in doubt, for the
accused.
Substantive Remedial
Prospective, unless Note: Whenever a penal law is to be construed or
favorable to the Retroactive; in favor applied and the law admits of two interpretations -
accused provided of the ends of one lenient to the offender and one strict to the
that the accused is substantial justice offender that interpretation which is favorable to
not a habitual the offender will be adopted.
delinquent
It can be This is in consonance with the fundamental rule
It only comes from
promulgated by the that all doubts shall be construed in favor of the
the legislative body
judiciary accused and consistent with the presumption of
innocence of the accused (CONST, Art. III, Sec.
Terms 14).
1.Crime the generic term used to refer to a
wrongdoing punished either under the RPC or Characteristics of Criminal Law
under the special law (ORTEGA, 2009); an act 1. General;
committed or omitted in violation of a public law 2. Territorial; and
forbidding or commanding it (REYES, Book One, 3. Prospective.
supra).
2.Felony an act or omission violative of the GENERAL
Revised Penal Code committed either intentionally It is binding on all persons who live or sojourn in the
or negligently (Id.). Philippine territory, regardless of nationality, gender,
3.Offense an act or omission violative of a special or other personal circumstances (CIVIL CODE, Art.
law, i.e. any law other than the Revised Penal 14).
Code (Id. at 2).
4.Misdemeanor a minor infraction of law. Note: The Philippines is a sovereign state with the
obligation and the right of every government to
Sources uphold its laws and maintain order within its domain,
1. The Revised Penal Code (Act No. 3815); and with the general jurisdiction to punish persons
2. Special Penal Laws; and for offenses committed within its territory, regardless
of the nationality of the offender. No foreigner enjoys
3. Penal Presidential Decrees issued during
in this country extra-territorial right to be exempted
Martial Law.
from its laws and jurisdiction, with the exception of
heads of states and diplomatic representative
Legal Maxims
(People v. Galacgac, 54 O.G. 1027).
1.Nullum crimen nulla poena sine lege There is no
crime when there is no law that defines and
Exceptions:
punishes it.
1. Treaty Stipulations

EXECUTIVE COMMITTEE SUBJECT COMMITTEE MEMBERS

VESTER AUSTRIA overall chair, ALLOYSIUS YEBRA subject chair Noveanne Banogon, Lucia
REYNOLD ORSUA chair for academics, LUCILLE GAYE MORENO assistant Fernandez, April Pauliene
JOE VINCENT AGUILA chair for hotel operations, subject chair Maligayo, Miguelle Kassandra
LYNDON RUTOR vice-chair for operations, JAN MARCEL RAGAZA subject edp Mejillano, Angelique Mendoza,
RODEL JAMES PULMA vice-chair for secretariat, MARIA CZABRINA DOMINGO Remegio Mora, Maria Mykeana
DENISE DIANNE MAGBUHOS vice-chair for criminal law 1 Naval, Jacklyn Kim Sy, Lorenz
finance, ROSE ANNE ABIERA criminal law 2 Camillus Banez, Andrea Biolena,
IAN DANIEL GALANG vice-chair for electronic HER LYNN BALARES special laws Androus Rogel Cabauatan,
data processing, Romeo Devora, Flores Encio,
JOMARC PHILIP DIMAPILIS vice-chair for Kathleen Valerio, Diomdelia
logistics Vergara
ALBERTO RECALDE, JR vice-chair for
membership
 Under the RPUS Visiting Forces Agreement to approve the request for waiver except if the
(VFA), which was signed on February 10, 1998, crime is of national importance: (HCD)
the Philippines agreed that: 1. Those crimes defined under R.A. 7659 (Heinous
a.US shall have the right to exercise within the crimes);
Philippines all criminal and disciplinary 2. Those crimes defined under R.A. 7610 (Child
jurisdiction conferred on them by the military law Abuse Cases); and
of the US over US personnel in RP. 3. Those crimes defined under R.A. 9165
b.US exercises exclusive jurisdiction over US (Dangerous Drugs cases).
military personnel with regard to offenses
relating to the security of the US punishable 2. Laws of Preferential Application
under the law of US, but not under the laws of a.R.A. 75 penalizes acts which would impair the
RP. proper observance by the Republic and its
c. US shall have primary right to exercise inhabitants of the immunities, rights, and
jurisdiction over US military in relation to: privileges of duly-accredited foreign diplomatic
i. Offenses solely against the property or representatives in the Philippines (ESTRADA,
security of the US or offenses solely against Criminal Law, Book One, 2008, [hereinafter
the property or person of US personnel; and ESTRADA, Criminal Law], p. 8).
ii. Offenses arising out of any act or mission
done in performance of official duty. General Rule: Under R.A. 75, persons who are
exempt from arrest and imprisonment and
Under the VFA, in determining whether one can whose properties are exempt from distraint,
be prosecuted or not, the citizenship is immaterial; seizure and attachment are the following: (MAS)
what is material is ones membership in the U.S i. Public Ministers;
Armed Forces. ii. Ambassadors; and
It is necessary that one is a member of the US
iii. Domestic servants of ambassadors and
armed forces either as: public ministers
1. US military personnel; or
2. US civilian personnel connected to US military Exceptions:
operations. i. The person is a citizen or inhabitant of the
Philippines; and
Rules on Jurisdiction ii. The writ or process issued against him is
founded upon a debt contracted before he
Crimes Jurisdiction
entered upon such service or the domestic
Crimes punishable servant is not registered with the Department
under Philippine RP has the exclusive of Foreign Affairs.
laws but not under jurisdiction.
the laws of the US R.A. 75 is applicable only where the country of
Crimes punishable the diplomatic representative affected provides
under the laws of for similar protection to duly accredited
US has the exclusive
the US but not diplomatic representatives of the Republic of the
jurisdiction.
under Philippine Philippines (Id.).
laws
There is concurrent Example:
jurisdiction but the Q: Gerald, the driver of the US ambassador to
Philippines has the right to the Philippines drove and operated the embassy
Crimes punishable primary jurisdiction, issued car in a reckless and imprudent manner.
both under the US especially when it is a As a consequence, he hit and bumped a young
and Philippine threat to RP security boy peddling in the street resulting to his death.
laws namely: Can Gerald be charged and prosecuted before
a. treason; the Philippine courts?
b. espionage; and
c. sabotage. ANS: No, Gerald cannot be charged and
Crimes committed prosecuted before the Philippine courts. Under
by a US personnel R.A. 75, members of official retinue of the US
against the ambassador in the Philippines are entitled to the
RP has no jurisdiction.
security and immunity enjoyed by the US ambassador. This
property of the US immunity from our criminal jurisdiction however
alone cannot b accorded to Gerald if the United States
Generally, the Philippines cannot refuse the does not provide the same immunity to
request of the US for waiver of jurisdiction and has

2
 San Beda College of Law
2010 Centralized Bar Operations
members of the official retinue of the Philippine
ambassador to the United States. The grant of
immunity is reciprocal (Id.).
Note: The Doctrine of Immunity from suit will
not apply and may not be invoked where the
public official is being sued in his private and
personal capacity as an ordinary citizen. The
cloak of protection afforded the officers and
agents of the government is removed the
moment they are sued in their individual
capacity (Shauf v. Court of Appeals, G.R. No.
90314, November 27, 1990).
b. Warship Rule a warship of another
country even though docked in the Philippines is
considered as an extension of the territory of
their respective country. Same rule applies to
foreign embassies in the Philippines. Philippine
warship and embassies abroad are deemed
extra-territories of the Philippines.
Warships are always reputed to be the territory
of the country to which they belong and cannot
be subjected to the laws of another state
(REYES, Book One, supra at 31).
c. Principles of Public International Law
The following persons are exempted: (SCAM2)
a. Sovereigns and other heads of state;
b. Charges d affaires;
c. Ambassadors;
d. Ministers plenipotentiary; and
e. Ministers resident (ESTRADA, Book One,
supra at 9).
Note: The basis for granting immunity for
diplomatic heads is par in parem, non habet
imperium that all States are sovereign equals
and cannot assert jurisdiction over one another.
The proscription is not for the benefit of an
individual, but for the State, in whose service
the diplomatic head is (BOADO, Notes and
Cases on the Revised Penal Code, 2008 ed.,
[hereinafter BOADO]), p. 26).
Consuls, vice-consuls and other commercial
representatives of foreign nations cannot claim
the privileges and immunities accorded to
ambassadors and ministers and therefore are
not exempt from criminal prosecution
(Schneckenburger v. Moran, G.R No. L-44896,
July 31, 1936).
Note: The main yardstick in ascertaining
whether a person is a diplomat entitled to
immunity is the determination of whether or not
he performs duties of diplomatic nature
(Minucher v. Court of Appeals, G.R. No.
142396, February 11, 2003).
3
TERRITORIAL
General Rule: Penal laws of the Philippines have
force and effect only within its territory (RPC, Art. 2).
The national territory is set forth in Article I of the
1987 Constitution. It composes of 3 domains:
1. Terrestrial;
2. Fluvial; and
3. Aerial.
Exceptions:
1. RPC shall not be enforced within or outside the
Philippine territories if so provided under:
a. Treaties; or
b.Laws of Preferential Application (RPC, Art. 2
and CIVIL CODE, Art. 14).
2. Extraterritoriality refers to the application of the
Revised Penal Code outside the Philippine
territory (RPC, Art. 2).
Extraterritorial crimes (RPC, Art. 2) i.e.,
enforceable even outside Philippine territory
against those who (5):
a. Should commit an offense while on
Philippine ship or airship.
Requisites:
i. The ship or airship must not be within the
territorial jurisdiction of another country (it
must be in international waters).
ii. The ship or airship must be registered in the
Philippines under Philippine laws (ESTRADA,
Book One, supra at 15).
Rules on private or merchant Vessels:
1. Philippine vessel or aircraft
a. Must be understood as that which is
registered with the MARINA (Maritime
Industry Authority) in accordance with
Philippine laws;
b. The RPC applies when such Philippine
vessel is found within:
i. Philippine waters; or
ii. The high seas.
Note: Courts in the Philippines have no
jurisdiction over crimes committed on the
high seas on board a vessel not registered
or licensed in the Philippines (U.S. v.
Fowler, G.R. No. L- 496, December 31,
1902).
2. Foreign Merchant Vessels
a. In the Philippines, we follow the ENGLISH
RULE (REYES, Book One, supra at 29).
b. A distinction must be made between
merchant ships and warship; the former are
 more or less subjected to the territorial laws
(US v. Bull, G.R. No.5270, January 15,
1910).
Note: When a merchant ship of Philippine
nationality is in the Philippines and a crime
is committed therein, there is no question as
to the jurisdiction over the crime, it being
within the Philippine territory. If it is in the
high seas where no country has jurisdiction,
the Philippines still has jurisdiction. BUT if it
is within the territory of another country, the
jurisdiction is generally with that foreign
State because penal laws are primarily
territorial in application. BUT if that country
will not take cognizance, pursuant to Art.2 of
the RPC, the Philippines can assume
jurisdiction (BOADO, supra at 30).
c. Foreign merchant vessel in transit:
possession of dangerous drugs is not
punishable, but use of the same is
punishable (REYES, Book One, supra at
30).
d. Foreign merchant vessel NOT in transit:
mere possession of dangerous drugs is
punishable because it can already be
considered as illegal importation (US v. Ah
Sing, G.R. No. L-13005, October 10, 1917).
Two rules as to jurisdiction over crimes
committed aboard a merchant vessels while
in the territorial waters of another country:
French Rule English Rule
(Flag or Nationality) (Territoriality or Situs
of the Crime)
General Rule
Crimes committed Crimes committed
aboard a vessel within aboard a vessel within
the territorial waters of the territorial waters of
another country are another country are
NOT triable in the TRIABLE in that
courts of that country. country.
Exception
When their When the crimes
commission affects merely affect things
the peace and security within the vessel or
of the territory or when when they only refer to
the safety of the state the internal
is endangered management thereof.
(REYES, Book One, supra at 29)
Note: According to the French theory and
practice, matters happening on board a
merchant ship which do not concern the
tranquility of the port or persons foreign to the
crew, are justiciable only by the courts of the
country to which the vessel belongs (Id.).
3. Foreign Warships
4
In the case of a foreign warship, the
nationality of such warship determines the
applicable penal laws to crimes committed
therein, as they are considered to be an
extension of the territory of the country to
which they belong. Thus, their respective
national laws shall apply to such vessels
wherever they may be found.
b.Should forge or counterfeit any coin or
currency note of the Philippines or
obligations and securities issued by the
Government (RPC, Arts. 163 & 166).
Forgery is committed by giving to a treasury or
bank note or any instrument payable to bearer
or to order the appearance of a true genuine
document or by erasing, substituting,
counterfeiting or altering, by any means, the
figures, letters, words or signs contained therein
(RPC, Art. 169).
If forgery was committed abroad, it must refer
only to Philippine coin, currency note, or
obligations and securities.
If forgery was perpetrated abroad, the object of
the crime must be a coin, currency note or
obligations and securities issued by the
government (ESTRADA, Book One, supra at
15).
Obligations and securities of the GSIS, SSS and
Land Bank are NOT of the government because
they have separate charters.
Example:
Q: Jaka was counterfeiting Philippine lotto
tickets in his bodega in Japan. One day, his
bodega was raided by Japanese authorities.
Jaka was arrested. Who has jurisdiction to try
Jaka for counterfeiting such lotto tickets? Why?
ANS: The Philippines has jurisdiction over Jaka
since his counterfeiting of lotto tickets is
prohibited by our laws, it being an obligation
secured by the Philippine government (Id. at
16).
c. Should introduce into the country the above-
mentioned obligations and securities.
Those who introduced the counterfeit items are
criminally liable even if they were not the ones
who counterfeited the obligations and securities.
On the other hand, those who counterfeited the
items are criminally liable even if they did not
introduce the counterfeit items.
 San Beda College of Law
2010 Centralized Bar Operations
d.While being public officers or employees,
should commit an offense in the exercise of
their functions, like: (B3A2F3T-MIC)
i. Direct Bribery (Art. 210);
ii. Indirect Bribery (Art. 211);
iii. Qualified Bribery (Art. 211-A);
iv. Failure to Render Accounts (Art. 218);
v. Failure to Render Account Before Leaving
the Country (Art. 219);
vi. Illegal Use of Public Funds or Property (Art.
220);
vii. Failure to Make Delivery of Public
Funds/Property (Art. 221);
viii. Falsification (Art. 171);
ix. Fraud Against Public Treasury and Similar
Offenses (Art. 213);
x. Malversation of Public Funds or Property
(Art. 217);
xi. Possession of Prohibited Interest (Art. 216);
and
xii. Corruption (Art. 212).
Note: A crime committed within the grounds of a
Philippine embassy on foreign soil shall be
subject to Philippine penal laws, although it may
or may not have been committed by a public
officer in relation to his official duties. Embassy
grounds are considered as extensions of the
sovereignty of the country occupying them.
Example:
A Philippine consulate official who is validly
married here in the Philippines remarries in a
foreign country cannot be prosecuted here in
the Philippines for bigamy under No. 4 of Art. 2
of RPC because the crime has no connection
with his official duties. Nevertheless, if the
second marriage is celebrated in the Philippine
embassy, the ambassador may be prosecuted
in the Philippines because the embassy
grounds are considered the extension of
sovereignty (ORTEGA, supra).
e. Should commit any of the crimes against
national security and the law of nations
defined in Title One of Book Two (RPC, Arts.
114-122).
When rebellion, coup detat and sedition are
committed abroad, the Philippine courts will not
have jurisdiction because these are crimes
against public order (ESTRADA, Book One,
supra at 18).
Terrorism as defined by R.A. 9372, otherwise
known as the Human Security Act of 2007, is
now a crime against national security and the
law of nations.
5
R.A. 9372, otherwise known as the Human
Security Act of 2007 has extraterritorial
application.
Sec. 58 of R.A. 9372 provides that the Act shall
apply to individual persons who, although
physically outside the Philippines shall:
i. Conspire or plot to commit any of the crimes
punished in the Act;
ii. Commit any of said crimes on board
Philippine Ship or airship;
iii. Commit any of said crimes within the
embassy, consulate or diplomatic premises
belonging to or occupied by the Phil.
government in an official capacity;
iv. Commit said crimes against Phil. citizens or
persons of Phil. descent where their
citizenship or ethnicity was a factor in the
commission of the crimes; and
v. Commit said crimes directly against the Phil.
government.
PROSPECTIVE
General Rule: Penal laws cannot make an act
punishable in a manner in which it was not
punishable when committed (REYES, Book One,
supra at 14).
Exception: It may be applied retroactively when the
new law is favorable to the accused
Thus, a law can be made to retroact only if:
a. It makes the penalty for the crime lighter;
b. It repeals a law making an act no longer criminal;
or
c. It is favorable to the accused who is not a habitual
delinquent (Id. at 15).
Exceptions to the Exception:
1. The new law is expressly made inapplicable to
pending actions or existing causes of actions
(Tavera v. Valdez, G.R. No. 922, November 8,
1902).
2. The offender is a habitual criminal (RPC, Art. 22).
Note: The prospectivity rule applies also to penal
circulars such as DOJ Circular No. 12 issued on
August 8, 1984, which declared that all checks
including guaranteed checks are covered by B.P. 22
(Co v. Court of Appeals, G.R. No. 100776, October
28, 1993).
Limitations on the Power of Congress to Enact
Penal Laws:
The Congress, in enacting penal laws are restricted
by the following Constitutional and statutory
limitations:
1. No ex post facto law or bill of attainder shall be
enacted (CONST. Art. III, Sec. 22).
 Ex post facto law
a. It is a law that would make a previous act
criminal although it was not so at the time it was
committed (ESTRADA, Book One, supra at 2).
b. It makes a criminal an act done before the
passage of the law and which was innocent
when done, and punishes such an act.
c. It aggravates a crime, or makes it greater than it
was, when committed.
d. It changes the punishment and inflicts a greater
punishment than the law annexed to the crime
when committed.
e. It alters the legal rules of evidence, and
authorizes conviction upon less or different
testimony than the law required at the time of
the commission of an offense.
f. It assumes to regulate civil rights and remedies
only, in effect imposes penalty or deprivation of
a right for something which when done was
lawful.
g. It deprives a person accused of a crime some
lawful protection to which he has become
entitled, such as the protection of a former
conviction or acquittal, or proclamation of
amnesty (In Re: Kay Villegas Kami, Inc., G.R.
No. L-32485, October 22, 1970).
Note: The prohibition applies only to criminal
legislation which affects the substantial rights of
the accused (Wright v. CA, G.R. No. 113213,
August 15, 1994).
Bill of attainder
It is a legislative act that inflicts punishment
without trial, its essence being the substitution of
legislative fiat for a judicial determination of guilt.
It is a legislative act which inflicts punishment
without judicial trial (People v. Ferrer, G.R. No. L-
32613-14, December 27, 1972). It is an
encroachment of judicial function by the legislative
(BOADO, supra at 5).
2. No person shall be held to answer for a criminal
offense without due process of law (CONST. Art
III, Sec. 14[1]).
3. It should not impose cruel and unusual
punishment nor should it impose excessive fines
(CONST. Art.III, Sec. 19[1]).
R.A. 9346 prohibits the imposition of death penalty
therefore repealing R.A. 7659. In lieu of the death
penalty, the following shall be imposed:
a. The penalty of reclusion perpetua, when the law
violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or
b. The penalty of life imprisonment, when the law
violated does not make use of the nomenclature
of the penalties of the Revised Penal Code
(R.A. 9346, Sec. 2).
6
4. It must be general in application and must clearly
define the acts and omissions punished as crimes.
Different Effects of Repeal of Penal Law
1. Absolute or Total Repeal A repeal is absolute
when the crime punished under the repealed law
has been decriminalized by the subsequent law
(ORTEGA, supra).
If the new law totally repeals the existing law
making the act not punishable, the crime is
obliterated (REYES, Book One, supra at 15).
Effects of total repeal if:
a. The case is still pending in court: dismissed,
regardless of whether the accused is a habitual
criminal
b.The offender is already serving sentence:
i. Not a habitual criminal the offender is
entitled to be released; unless the repealing
law is expressly made inapplicable to those
who are serving sentence at the time of the
repeal.
ii. Habitual criminal he will continue serving
sentence this is so because penal laws should
be given retroactive application to favor only
those who are not habitual delinquents
(ORTEGA, supra).
2. Partial or Relative Repeal a repeal is partial
when the crime punished under the repealed law
continues to be a crime in spite of the repeal.
Effects of partial repeal if:
a. If the case is still pending in court: the
repealing law which is more favorable to the
accused shall be applied to him regardless of
whether he is a habitual criminal or not; unless,
there is a reservation in the said law that it shall
not apply to pending causes of action.
b.If the offender is already serving sentence:
i. Not habitual criminal the repealing law
which is more lenient to him shall be applied
unless there is a reservation to that effect.
ii. Habitual criminal the repealing law which
is more favorable to the accused will not be
applicable to him.
Effects of Amendment of Penal Law
1. If the new law makes the penalty lighter, it shall
be applied except if the offender is a habitual
delinquent or when the new law is inapplicable to
pending action or existing causes of action.
2. If the new law imposes a heavier penalty, the law
in force at the time of the commission of the
offense shall be applied (REYES, Book One,
supra at15).
 San Beda College of Law
2010 Centralized Bar Operations
P RELIMINARY T ITLE
ARTICLE 1
TIME WHEN ACT TAKES EFFECT
The Revised Penal Code (RPC) was approved on
December 8, 1930. It took effect on January 1,
1932.
Two Theories in Criminal Law:
1. Classical or Juristic Theory
b.The basis of criminal liability is human free will
and the purpose of the penalty is retribution.
c. Man is essentially a moral creature with an
absolutely free will to choose between good and
evil thereby placing more stress upon the effect
or result of the felonious act than upon the man,
the criminal himself.
d.It has been endeavored to establish a
mechanical and direct proportion between crime
and penalty (BOADO, supra at 8-9).
3. Positivist or Realistic Theory
a. Man is subdued occasionally by a strange and
morbid phenomenon which constrains him to do
wrong, in spite of or contrary to his volition.
b. The crime is essentially a social and natural
phenomenon and as such it cannot be treated
and checked by applying law and jurisprudence
nor by imposition of a punishment, fixed and
determined a priori.
c. The purpose of penalty is reformation (Id. at 9).
Note: Some authorities add a third school of
thought (eclectic or mixed theory).
3. Eclectic or Mixed Theory a combination of both
classical and positive theories (Id. at 10). Our
Code is considered eclectic (i.e., the age of the
offender is taken into consideration, intoxication
of the offender in order is considered a mitigating
circumstance unless it is habitual or intentional).
ARTICLE 2
APPLICATION OF ITS PROVISIONS
Article 2 sets forth the instances where the
provisions of the Revised Penal Code are applicable
although the felony is committed outside the
Philippine Territory.
1. Extraterritoriality RPC is applicable even
though outside the Philippine territory (See
discussion under Territorial as a characteristic of
criminal law).
2. Exterritoriality a term of international law which
signifies the immunity of certain persons who,
although in the state, are not amenable to its laws
(e.g. ambassadors, ministers plenipotentiary etc.).
7
3. Intraterritoriality RPC is made applicable within
the Philippine territory.
Felonies under this Article shall be cognizable by the
proper court where the criminal action was first filed
(RULES OF COURT, Rule 110, Section 15[d]).
TITLE ONE: FELONIES &
CIRCUMSTANCES WHICH
AFFECT CRIMINAL LIABILITY
ARTICLE 3
FELONIES
CHAPTER ONE: FELONIES
(ARTS. 3-10)
Felonies
These are acts or omissions punishable by the
Revised Penal Code (RPC, Art. 3).
Elements of Felonies (General):
1. That there must be an act or omission, i.e.
there must be external acts;
a. Act any bodily movement tending to produce
some effect in the external world. It must be
external as internal acts are beyond the sphere
of penal law.
b. Omission is inaction or the failure to perform
a positive duty required by law (REYES, Book
One, supra at 34).
2. That the act or omission must be punishable by
the RPC (Based upon the maxim nullum crimen,
nullapoena sine lege); and
3. That the act is performed or the omission is
incurred by means of dolo (malice) or culpa (fault).
The act or omission must be voluntary (Id. at 33).
Classification of Felonies According to the
Means by Which They Are Committed:
A. Intentional felonies The act is performed or the
omission is incurred with deliberate intent or
malice to do an injury (Id. at 36).
Requisites of DOLO or MALICE: (FII)
1. Freedom
a. Voluntariness on the part of the person to
commit the act or omission
b. When a person acts without freedom, he is no
longer a human being but a tool.
Lack of freedom - offender is exempt from
liability (i.e. presence of irresistible force or
uncontrollable fear).
 2. Intelligence General Criminal Specific Criminal
It is the capacity to know and understand the Intent Intent
consequences of ones act. Without this power, When the crime is in
necessary to determine the morality of human its attempted or
acts, no crime can exist. frustrated stage,
special intent must be
Lack of intelligence - offender is exempt from proved (i.e. When a
liability (i.e. offender is an imbecile, insane, or 15 When the crime is person seriously
years of age or under). consummated, injures another, the
general intent is intent to kill must be
3. Intent (Criminal) presumed (i.e. When proved in order that
a. The purpose to use a particular means to a person killed the charge will be one
effect such result another, the intent to of attempted or
b. Intent to commit an act with malice, being kill is presumed). frustrated homicide,
purely a mental process, is presumed. Such murder, parricide or
presumption arises from the proof of infanticide, as the
commission of an unlawful act. case may be and not
mere physical
Note: The presumption of criminal intent does injuries).
not arise from the proof of the commission of
an act which is not unlawful (US v Catolico, B. Culpable felonies performed without malice.
G.R. No. 6486, March 2, 1911).
Requisites of CULPA: (FIN)
c. A mental state, hence, its existence is shown 1. Freedom;
by overt acts. 2. Intelligence; and
3. Negligence, imprudence, lack of foresight, or lack
Lack of intent - act is justified. Offender incurs of skill (ESTRADA, Book One, supra at 25).
NO criminal liability (i.e. existence of a lawful or
insuperable cause, commission by mere The act or omission is voluntary but the intent or
accident) (REYES, Book One, supra at 40-42). malice in intentional felonies is replaced by
imprudence, etc.
Criminal intent is necessary because:
a. Actus non facit reum nisi mens sit rea The Negligence
act itself does not make a man guilty unless It indicates a deficiency of perception; failure to pay
his intentions were so. proper attention and to use diligence in foreseeing
b. Actus me invito factus non est meus actus the injury or damage impending to be caused;
An act done by me against my will is not my usually involves lack of foresight (Id. at 26).
act (U.S. v. Ah Chong, G.R. No. 5272, March
19, 1910). Imprudence
It indicates a deficiency of action; failure to take the
General Criminal Specific Criminal necessary precaution to avoid injury to person or
Intent Intent damage to property; usually involves lack of skill (Id.
An intention to do a An intention to commit at 26).
wrong a definite act
Existence of the intent
Presumed to exist is not presumed Reason for punishing acts of negligence:
from the mere doing of because it is an A man must use his common sense, and exercise
a wrongful act ingredient or element due reflection in all his acts; it is his duty to be
of a crime. cautious, careful and prudent, if not from instinct,
then thru fear of incurring punishment (US v.
The burden of proving
Maleza, G.R. No. 5036, November 17, 1909).
the existence of the
The burden of proving
intent is upon the
the absence of intent Note: In Art. 3, culpa is a MODE of committing a
Prosecution, as such
is upon the accused. crime; hence, killing is denominated homicide
intent is an element of
through reckless imprudence. In Art. 365 (quasi-
the crime.
offenses), culpa is the crime punished; hence, the
crime is denominated reckless imprudence
resulting in homicide (BOADO, supra at 42).

8
 San Beda College of Law
2010 Centralized Bar Operations

Intentional Culpable Classification of Crimes According to Nature:

1. Mala prohibita
Act is malicious Not malicious
Crimes punishable by special penal laws whereby
Injury caused is
criminal intent is not, as a rule, necessary, it being
unintentional being
With deliberate sufficient that the offender has the intent to
incident of another
intent perpetrate the act prohibited by the special law. It
act performed
is punishable because the prohibited act is so
without malice.
injurious to the public welfare that it is the crime
Wrongful act results
itself.
from imprudence,
Has intention to
negligence, lack of
cause an injury These are acts made evil because there is a law
foresight or lack of
punishing it. The basis of criminal liability is the
skill.
offenders voluntariness, hence, good faith or lack
of criminal intent is not accepted as a defense,
Honest Mistake of fact unless this is an element of a crime. The act
It is a misapprehension of fact on the part of the prohibited is not inherently evil but made evil only
person causing injury to another. Such person is by the prohibition of the statute (BOADO, supra at
NOT criminally liable as he acted without criminal 15).
intent (Ignorantia facti excusat) (REYES, Book One,
supra at 44). General Rule: As a rule, mere commission of
crimes classified as mala prohibita, even without
An honest mistake of fact destroys the presumption criminal intent, is punishable.
of criminal intent which arises upon the commission
of a felonious act (People v. Oanis, G.R. No. L- Exceptions:
47722, July 27, 1943).
a. Cuenca v. People (G.R. No. L-27586, June 26,
Honest Mistake of fact is NOT applicable in 1970)
CULPABLE felonies. Cuenca was entitled to assume that his
employer had the requisite license to possess
Requisites of mistake of fact as a defense: said firearm and ammunition and to turn them
1. That the act done would have been lawful had the over to him while he was on duty as one of the
facts been as the accused believed them to be; regular security guards of a duly licensed
security agency.
2. That the intention of the accused in performing the
act should be lawful; and
b. People v. Landicho ([CA] 55 OG 842)
3. That the mistake must be without fault or The doctrine of the immateriality of animus
carelessness on the part of the accused (REYES, possidendi should be relaxed in certain way.
Book One, supra at 45). Otherwise, the avowed purpose of the
a. US v. Ah Chong (G.R. No. L- 5272, March 19, governments policy cannot be realized.
1910 ) The accused had no alternative but to
take the facts as they appeared to him, and
c. People v. Mallari ([CA] 55 O.G. 1394)
such facts justified his act of killing his
Where the accused had a pending application
roommate.
for permanent permit to possess a firearm, and
b. People v. Oanis (G.R. No. L-47722, July 27,
whose possession was not unknown to an
1943) There was no mistake of fact when the
agent of the law who advised the former to keep
accused police officers were shot Tecson, whom
it in the meantime, any doubt as to his claim
they thought to be Balagtas (a notorious
should be resolved in his favor.
criminal) who was sleeping in his bed, without
ascertaining his identity and the non-existence
d. Mere transient possession of unlicensed
of threat from the part of Tecson.
firearm
While in stealing a firearm the accused must
When Honest Mistake of Fact NOT Applicable:
necessarily come into possession thereof, the
1. When there is mistake in identity (error in
crime of illegal possession of firearms is not
personae);
committed by mere transient possession of the
2. When there is negligence on the part of the
weapon. Thus, stealing a firearm with intent not
accused; and
to use but to render the owner defenseless, may
3. When the accused committed a culpable felony
suffice for purposes of establishing a case of
(The essence of honest mistake of fact is lack of
theft, but would not justify a charge for illegal
intent on the part of the accused) (ESTRADA,
possession of firearm, since intent to hold and
Book One, supra at 33).
eventually use the weapon would be lacking
(People v. Dela Rosa, G.R. No. 84857, January

9
 16, 1998, citing People v. Remereta, G.R. No. As to persons criminally liable
L-6971, February 17, 1956). There are three
persons criminally
2. Mala in Se Generally, only the
liable: principal,
Crimes mala in se are acts or omissions which are principal is liable.
accomplice, and
inherently evil (BOADO, supra at 15). accessory.
As to division of penalties
It implies something immoral in itself, regardless Penalties may be
of the fact that it (moral turpitude) is punishable by There is no such
divided into degrees
law or not (Dela Torre v. COMELEC, G.R. No. division of penalties.
and periods.
121592, July 5, 1996).
Note: A malum in se felony, such as reckless
Mala in Se Mala Prohibita imprudence resulting in damage to property cannot
As to Nature absorb a malum prohibitum crime, such as violations
Wrong from its very Wrong because it is of P.D. 1067, P.D. 984 and R.A. 7942. What makes
nature prohibited by law the former a felony is the criminal intent (dolo) or
Use of Good Faith as a Defense negligence (culpa); what makes the latter crimes are
Good faith is a valid the special laws enacting them (Loney v. People,
defense; unless the Good faith is not a G.R. No. 152644, February 10, 2006).
crime is the result of defense.
culpa. Note: Laws that merely amend the provisions of the
Intent as an element RPC, such as P.D. 533 which amended Arts. 308,
Criminal intent is 309 and 310 do not convert their violations into mala
Intent is an element. prohibita (BOADO, supra at 18).
immaterial.
Degree of Accomplishment of the crime
The degree of The act gives rise to a Intent Motive
accomplishment of the crime only when it is The purpose to use a The reason or moving
crime is taken into consummated. particular means to power which impels
account in punishing effect such result one to commit an act
the offender. for a definite result
As to Mitigating and Aggravating An element of the NOT an element of the
Circumstances crime, except in crime
Mitigating and Mitigating and unintentional felonies
aggravating aggravating Essential in intentional Essential only when
circumstances are circumstances are felonies the identity of the
taken into account in generally not taken perpetrator is in doubt
imposing the penalty. into account. (REYES, Book One, supra at 59-60)
Degree of Participation Illustration:
When there is more Degree of A, who is jealous of B shot the latter as a result of
than one offender, the participation is which B died. The intent is to kill while the motive is
degree of participation generally not taken jealousy.
of each in the into account. All who
commission of the participated in the act Motive
crime is taken into are punished to the It is the moving power which impels one to action for
account. same extent. a definite result (REYES, Book One, supra at 59).
As to penalty
Penalty is computed on The penalty on the Motive: When Relevant (CUT-NID)
the basis of whether he offenders are the 1. If the evidence is merely circumstantial;
is a principal offender, same whether they 2. Where the identification of the accused proceeds
or merely an are merely from an unreliable source and the testimony is
accomplice or accomplices or inconclusive and not free from doubt;
accessory. accessories. 3. In ascertaining the truth between two antagonistic
Laws Violated theories or versions of the killing;
Violation of the RPC Violation of Special 4. Where there are no eyewitnesses to the crime,
(General rule) Laws (General rule) and where suspicion is likely to fall upon a number
As to stages in execution of persons;
There are three stages: 5. When there is doubt as to the identity of the
No such stages of assailant; and
attempted, frustrated,
execution. 6. When the act is alleged to be committed in
consummated.
defense of a stranger because it must not be

10
 San Beda College of Law
2010 Centralized Bar Operations
induced by revenge, resentment or other evil
motive (Id. at 60).
ARTICLE 4
CRIMINAL LIABILITY
Par. 1: Criminal Liability for a felony different
from that which is intended to be committed.
Reason: El que es causa dela causa es causa del
mal causa He who is the cause of the cause is the
cause of the evil caused (People v. Ural, G.R. No. L-
30801, March 27, 1974).
Requisites:
1. That an intentional felony has been committed;
and
No Intentional Felony:
a. When the act or omission is not punishable by
RPC; or
b. When the act is covered by any of the justifying
circumstances in Art. 11 of RPC.
Act or omission should not be punished by a
special law because the offender violating a
special law may not have the intent to do any
injury to another. In such case, the wrongful act
done could not be different, as the offender did not
intend to do any other injury (REYES, Book One,
supra at 64).
2. That the wrong done to the aggrieved party be the
direct, natural and logical consequence of the
felony committed.
Proximate Cause
It is that cause, which, in the natural and
continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and
without which the result would not have occurred
(Vallacar Transit, Inc. v Catubig, G.R. No. 175512,
May 30, 2011).
If the result can be traced back to the original act,
then the doer of the original act can be held
criminally liable.
The relation of cause and effect must be shown:
a. The cause being the felonious act of the
offender; and
b.The effect being the resultant injuries and/or
death of the victim (REYES, Book One, supra at
76).
Note: Any person who creates in another persons
mind an immediate sense of danger, which causes
the latter to do something resulting in the latters
injuries, is liable for the resulting injuries (People v.
11
Page, G.R. No. L-37507, June 7, 1977, citing
People v. Toling, G.R. No. L-27097, Jan. 17, 1975).
Thus, the person is still criminally liable although the
wrongful act done be different from that which he
intended:
1. Error In Personae- mistake in the identity of the
victim (Art. 49 penalty for lesser crime in its
maximum period)
Illustration:
A intended to kill B. One night, A shouted at the
person whom he thought to be B. An altercation
ensued. In the process, A fired his gun at the
person who died as a consequence. It turned out
that the person whom he shot and killed was not B
but his own father. In this case, A is liable for
parricide, the crime which was actually committed.
When he fired his gun, he acted with intent. He is
liable for all the direct, logical and natural
consequences of his felonious act, whether
foreseen, intended or unintended. The fact that
the victim is different from the one A intended to
kill does not exculpate him from criminal liability.
Applying Art. 49 of the RPC, the penalty
imposable is not the penalty for parricide which
was the one committed, but the penalty of
homicide which is the crime intended to be
committed, the penalty being lesser than the
penalty for parricide which was actually
committed. But the penalty for homicide which is
reclusion temporal shall be imposed in its
maximum period (ESTRADA, Book One, supra at
37).
2. Aberratio ictus mistake in the blow (Art. 48 on
complex crimes penalty for graver offense in its
maximum period)
Illustration:
A, with intent to kill, hacked B. B was not hit but C
who is also behind B was hit. C died. A is liable for
his attempt to kill B. A is also liable for the death of
C. The death of C is the natural consequence of
the felonious act of A (Id. at 38).
3. Praeter intentionem injurious result is greater
than that intended (Art. 13 Mitigating
Circumstance).
Illustration:
A boxed B with the intention of inflicting a lump on
B. As a result of the blow, B lost his balance and
fell to the ground with his head hitting the
pavement causing his death. A is liable for
Homicide (Id. at 38-39).
Aberratio Ictus v. Error in personae
Aberratio Ictus Error in personae
The victim as well as The supposed victim
 the actual victim are may or may not be in Instances when there is a proximate cause and
both in the scene of the scene of the when there is none:
the crime. crime. Instance Criminally Liable?
The offender delivers The offender delivers When there is an intervening disease
the blow to his the blow not to his If disease is closely
intended victim but intended victim. YES
related to the wound
because of poor aim
If disease is unrelated
landed on someone NO
to the wound
else.
If disease is combined YES. Mortal wound is a
Generally gives rise There is no complex
force with wound contributing factor to
to complex crime crime.
victims death.
unless the resulting
consequence is not a
Note: A mortal wound
grave or less grave
is a contributing factor
felony
when:
i. The wound is
Illustration of Aberratio Ictus: sufficient to cause
a. A shot B but because of lack of precision, it was the victims death
C, a bystander, who was hit as a result of which along with the
C died. There is a complex crime of attempted disease
or frustrated Murder, Homicide, Parricide or ii. The mortal wound
Infanticide and Murder, Homicide Parricide or was caused by
Infanticide(MHPI) actions committed by
the accused
b. If C did not die but sustained injuries, there is
When the death was caused by an infection
still a complex crime of attempted or frustrated
of the wound due to the unskilled medical
MHPI and serious or less serious physical
treatment from the doctors
injuries (note that there is no intent to kill insofar
If the wound is mortal YES. Unskilled
as the case of C is concerned); however, there
treatment and infection
can be no complex crime if C sustained slight
are NOT efficient
physical injuries as the same is only a light
intervening causes
felony.
If the wound is slight NO. Unskilled
treatment and infection
When death is presumed to be the natural
are efficient intervening
consequence of physical injuries inflicted:
causes
(NER)
a. That the victim at the time the physical injuries Efficient Intervening Cause
were inflicted was in normal health; It is the cause which interrupted the natural flow of
b.That the death may be expected from the events leading to ones death. This may relieve
physical injuries inflicted; and the offender from liability.
c. That death ensued within a reasonable time
(People v. Datu Baginda, C.A. 44 O.G. 2287). NOT efficient intervening causes:
a.The weak or diseased physical condition victim;
Note: The offended party is not obliged to submit b.The nervousness or temperament of the victim;
to a surgical operation or medical treatment to c.Causes which are inherent in the victim;
relieve the accused from liability (US v. d.Neglect of the victim or third person(e.g. refusal
Marasigan, G.R. No. L- 9426, August 15, 1914). of medical attendance); and
e.Erroneous or unskilled medical or surgical
Felony committed is NOT the proximate cause treatment (unless the wound is slight or not
of the resulting injury when: mortal) (Id. at 79).
a. There is an active force between the felony
committed and the resulting injury, such active Note: A supervening event can still be the subject
force is distinct from the felony committed. of amendment or of a new charge without
b.The resulting injury is due to the intentional act necessarily placing the accused in double
of the victim, i.e. fault or carelessness of the jeopardy (People v. Petilla, G.R. No. L-5070,
victim to increase the criminal liability of the December 29, 1952).
assailant (REYES, Book One, supra at 76).
Par. 2: Impossible Crime

12
 San Beda College of Law
2010 Centralized Bar Operations
Requisites: (PEIN) 8.Physical Injuries (Arts 262, 263, 264, 265 and
1. That the act performed would be an offense 266)
against persons or property;
2. That the act was done with evil intent; Felonies against property are: (BRUCT-SCAM)
1.Brigandage (Arts. 306 and 307);
3. That its accomplishment is inherently impossible,
2.Robbery (Arts. 294, 297, 298, 299, 300, 302 and
or that the means employed is either inadequate
303);
or ineffectual; and
3.Usurpation (Arts. 312 and 313);
4.Culpable Insolvency (Art. 314);
Inadequate
5.Theft (Arts. 308, 310, and 311);
Insufficient (e.g. small quantity of poison).
6.Swindling and other deceits (Arts. 315, 316, 317
and 318);
Ineffectual
7.Chattel Mortgage (Art. 319);
The means employed did not produce the result
8.Arson and other crimes involving destruction
expected (e.g. pressed the trigger of the gun not
(Arts. 320, 321, 322, 323, 324, 325, and 326); and
knowing that it is empty).
9.Malicious Mischief (Arts. 327, 328, 329, 330 and
321).
Inherent impossibility of its accomplishment:
a.Legal Impossibility where the intended acts,
Purpose of punishing impossible crimes: To
even if completed would not amount to a crime,
suppress criminal propensity or criminal tendencies
(e.g. killing a person already dead) (Intod v. CA,
(REYES, Book One, supra at 88).
G.R. No. 103119 October 21, 1992 citing
Aquino, The Revised Penal Code, Vol. 1, 1987).
Notes:
b.Physical Impossibility when extraneous
1. Felony against persons or property should not be
circumstances unknown to the actor or beyond
actually committed, for otherwise, he would be
his control prevent the consummation of the
liable for that felony; there would be no impossible
intended crime (e.g. when a man with the
crime to speak of.
intention to steal another's wallet and finds the
2. There is no attempted or frustrated impossible
pocket empty; when a person steals a check
crime. It is always consummated and applies only
which was later dishonored) (Intod v. CA, G.R.
to grave or less grave felonies.
No. 103119 October 21, 1992; Jacinto v.
3. Under Article 59, the penalty for impossible crimes
People, G.R. No. 162540, July 13, 2009).
is arresto mayor or a fine ranging from 200-500
4. That the act performed should not constitute a
pesos.
violation of another provision of the RPC
4.The act performed should not constitute another
(REYES, Book One, supra at 84).
offense specifically punished by law particularly a
felony against persons or property. The moment
Illustration:
another crime is committed there can be no
The accused fired at the room of the supposed
impossible crime (ESTRADA, Book One, supra at
victim. No one was in the room when the accused
45).
fired the shots. No one was hit by the gun fire. There
is factual impossibility in this case. The crime
ARTICLE 5
committed is an impossible crime and not attempted
DUTY OF THE COURT
murder. It occurs when extraneous circumstances
unknown to the actor or beyond his control prevent
Par. 1. Acts which should be repressed but
the consummation of the intended crime. In this
which are not covered by law.
case, petitioner shoots the place where he thought
his victim would be, although in reality, the victim
Requisites:
was not present in said place and thus, the
1.The act committed by the accused appears not
petitioner failed to accomplish his end (Intod v. CA,
punishable by any law;
G.R. No. 103119 October 21, 1992).
2.But the court deems it proper to repress such act;
3.In that case, the court must render the proper
Felonies against persons are: (MHPI-DRAP)
decision by dismissing the case and acquitting the
1.Murder (Art. 248); accused; and
2.Homicide (Art 249); 4.The judge must then make a report to the Chief
3.Parricide (Art. 246); Executive, through the Secretary of Justice,
4.Infanticide (Art 255); stating the reasons which induce him to believe
5.Duel (Arts 260 and 261); that the said act should be made the subject of
6.Rape (Art. 266-A); penal legislation (REYES, Book One, supra at
7.Abortion (Arts. 256, 257, 258 and 259); and 89).

13
The Philippines does not subscribe to the common
law crimes system. Under this article, if an act
should be repressed but there is no law punishing
the same, the proper decision of acquittal must be
made. This is in consonance with the maxim nullum
crimen nulla poena sine lege (Id. at 89).
Par. 2. Excessive Penalties
Requisites:
1. The court after trial finds the accused guilty;
2. The penalty provided by law and which the court
imposes for the crime committed appears to be
clearly excessive because:
a. The accused acted with lesser degree of malice,
and/or
b. There is no injury or the injury caused is of
lesser gravity;
3. The court should not suspend the execution of the
sentence; and
4. The judge should submit a statement to the Chief
Executive, through the Secretary of Justice,
recommending executive clemency (Id at. 89-90).
The court must impose the penalty prescribed for
the crime committed although it finds the penalty too
harsh considering the conditions surrounding the
commission of the crime. The most the judge could
do is to recommend to the Chief Executive to grant
executive clemency.
Note: Par. 2 not applicable to the offense defined
and penalized by a special law.
ARTICLE 6
CONSUMMATED, FRUSTRATED &
ATTEMPTED FELONIES
Formal Crimes or Crimes of Effect
These are felonies which by a single act of the
accused consummates the offense as a matter of
law (i.e. physical injuries, acts of lasciviousness,
attempted flight to an enemy country, coercion,
slander, illegal exaction).
Those which are always consummated because the
offender cannot perform all the acts necessary to
consummate the offense without consummating it.
For instance, physical injuries are formal crimes
since these are punished as to result and the gravity
of the injury cannot be determined whether slight,
less serious or serious unless and until
consummated. Slander is a formal crime because
the moment the defamatory words were uttered and
heard by third persons, the crime is consummated
(BOADO, supra at 49).
In formal crimes, there are no attempted and
frustrated stages of execution because they are
14
consummated in one instant by a single act
(ESTRADA, Book One, supra at 62).
Material crimes
These are crimes which involve the three stages of
execution (REYES, Book One supra at 119).
Stages of execution: (does not apply to crimes
under special laws unless otherwise provided,
crimes by omission and formal crimes)
(a) Consummated felony
When all the elements necessary for its execution
and accomplishment are present
Note: The offender does not have to do anything
else to consummate the offense. He has already
reached the objective stage of the offense that he
no longer has control of his acts having already
performed all that is necessary to accomplish his
purpose (BOADO, supra at 49).
2. Frustrated Felony
Elements:
a. The offender performs all the acts of execution;
b. All the acts performed would produce the felony
as a consequence (belief of accused as to
whether or not he had performed all acts of
execution is immaterial);
c. But the felony is not produced; and
d. By reason of causes independent of the will of
the perpetrator (ESTRADA, Book One, supra at
57).
What crimes do not admit of frustrated stage?
They are those which, by the definition of a
frustrated felony, the offender cannot possibly
perform all the acts of execution to bring the
desired result without consummating the offense.
Examples of crimes which do not admit of
frustrated stage:
a. Rape, since the gravamen of the offense is
carnal knowledge, hence, no matter how slight
the penetration, the felony is consummated;
b. Indirect Bribery, because it is committed by
accepting gifts offered to the public officer by
reason of his office. If he does not accept, he
does not commit the crime. If he accepts, it is
consummated;
c. Direct Bribery;
d. Corruption of Public Officers, because the
offense requires the concurrence of the will of
both parties, such as that when the offer is
accepted, the offense is consummated. But
when the offer is rejected, the offense is merely
attempted;
e. Adultery, because the essence of the crime is
sexual congress;
 San Beda College of Law
2010 Centralized Bar Operations
f. Physical Injury, since it cannot be determined
whether the injury will be slight, less serious, or
serious unless and until consummated; and
g. Theft, because the unlawful taking immediately
consummates the offense and the disposition of
the thing is not an element thereof.
3. Attempted Felony
Elements:
a. The offender commences the commission of the
felony directly by overt acts;
b. He does not perform all the acts of execution
which should produce the felony;
c. He is not stopped by his own spontaneous
desistance; and
d.The non-performance of all acts of execution
was due to a cause or accident other than the
offenders own spontaneous desistance
(REYES, Book One, supra at 97).
Overt Act
a. It is some physical activity or deed, indicating
intention to commit a particular crime.
b. It is more than a mere planning or preparation,
which if carried to its complete termination
following its natural course, without being
frustrated by external obstacles, nor by
voluntary desistance of the perpetrator will
logically ripen into a concrete offense (REYES,
Book One, supra at 97).
Note: Overt act may not be a physical activity.
There are felonies where, because of their
nature or the manner of committing them, the
overt acts are not performed with bodily
movement or by physical activity (US v. Gloria,
G.R. No. 1740, March 27, 1905).
Felony is deemed commenced by overt acts
when the following are present:
a. That there be external acts; and
b. Such external acts have direct connection with
the crime intended to be committed (REYES,
Book One, supra at 97).
Note: To be an attempted crime, the purpose of
the offender must be thwarted by a foreign force
or agency which intervenes and compels him to
stop prior to the moment when he has performed
all the acts which should produce the crime as a
consequence, which act it is his intention to
perform (People v. Caballero, G.R. No. 149028-
30, April 2, 2003).
Indeterminate Offense
It is one where the purpose of the offender in
performing an act is not certain. Its nature in relation
to its objective is ambiguous (REYES, Book One,
supra at 100). The accused may be convicted of a
15
felony defined by the acts performed by him up to
the time of desistance.
Illustration:
The accused was caught opening with an iron bar a
wall of a store of cheap goods. He broke one board
and was unfastening another when a patrolling
police caught him. He was charged with attempted
robbery.
The crime committed is only attempted trespass to
dwelling based on the acts performed by him before
being caught. There is something yet for him to do
to make him liable for the offense charged. The final
objective of the accused, once he succeeded in
entering the store, may be to rob, to cause physical
injury to the inmates, or to commit any other offense.
In such case, there is no justification in finding the
offender guilty of attempted robbery by the use of
force upon things (Id. at 100-102 citing People v.
Lamahang, G.R. No. 43530, August 23, 1935).
Desistance
It is an absolutory cause which negates criminal
liability because the law encourages a person to
desist from committing a crime (ESTRADA, Book
One, supra at 55).
Note: The spontaneous desistance of the offender
negates only the attempted stage but not
necessarily all criminal liability. If the desistance was
made when acts done by him already resulted to a
felony, that offender will still be criminally liable for
the felony brought about by his act (ORTEGA,
supra).
Note: When the cause of the non-performance of all
the acts necessary for the commission of the
offense is other than the offenders spontaneous
desistance, the felony is attempted (People v.
Pareja, G.R. No. 88043, December 9, 1996).
Kinds of Desistance
Legal Desistance Factual Desistance
Definition
Desistance referred to Actual desistance of the
in law which would actor; the actor is still
obviate criminal liability liable for the attempt
unless the overt or
preparatory act already
committed in
themselves constitute a
felony other than what
the actor intended
Time or Period Employed
Desistance made Desistance made after
during the attempted the attempted stage of
stage the crime
Note: The desistance which exempts from criminal
liability has reference to the crime intended to be Factors in determining stage of execution of
committed, and has no reference to the crime felony: (MEN)
actually committed by the offender before his 1.Manner of committing the felony;
desistance (People v. Lizada, G.R. Nos. 143468-72, 2.Elements constituting the felony; and
January 24, 2008). 3.Nature of the offense (REYES, Book One, supra
at 113).
Two Stages in the Development of a Crime:
1. Internal acts: Murder/Homicide/Parricide/Infanticide (MHPI):
a.Such as mere thoughts or ideas in the mind of 1.With intent to kill, but no mortal wound is inflicted
person. attempted.
b.Not punishable. 2.With intent to kill, and mortal wound is inflicted but
victim does not die frustrated.
2. External acts cover: 3.The moment the victim dies, intent to kill is
a. Preparatory acts ordinarily not punished conclusively presumed consummated.
except when considered by law as independent
crimes (e.g. Art. 304, Possession of Picklocks Rules on crimes against persons (MHPI) and stages
and Similar Tools). of execution:
b. Acts of Execution punishable under the RPC Intent Gravity
(REYES, Book One, supra at 95). Death Crime
to of the
Results Committed
Kill wound
Attempted stage Pre- Mortal
It marks the commencement of the subjective Yes Consummated
sumed wound
phase.
Frustrated
No Yes Mortal
(MHPI)
There is an attempt when the offender begins
Non-
the commission of a felony directly by overt acts No Yes Attempted MHPI
mortal
(Id. at 96).
Overt act
No Yes only no Attempted MHPI
Subjective Phase
wound
It is that portion of the acts constituting the
crime, starting from the point where the offender Mortal Serious physical
No No
begins the commission of the crime to that point wound injuries
where he has still control over his acts, including Non- Less serious/
their (acts) natural course (Id. at 104). No No mortal slight physical
wound injuries
If between those two points the offender is
stopped by reason of any cause outside of his Robbery/ Theft (RPC, Arts. 293 and 309)
own voluntary desistance, the subjective phase 1. Both crimes are committed by the taking of the
has not been passed and it is an attempt (Id.). personal property of another and with the intent to
gain.
If he is not so stopped but continues until he 2. The difference is that in robbery, there is the use
performs the last act, it is frustrated (Id.). of force or violence.
3. So long as there is possession of the property, no
Frustrated stage matter how momentary it may be, the crime is
It is the end thereof and the start of the objective consummated.
phase. 4. In robbery by the use of force upon things, since
the offender must enter the building to commit the
Objective Phase crime, he must be able to carry out of the building
It is the result of the acts of the execution, that the thing taken to consummate the crime.
is, the accomplishment of the crime. 5. In robbery with violence against or intimidation of
persons, the crime is consummated the moment
If the subjective and objective phases are the offender gets hold of the thing taken and/or is
present, there is a consummated felony. in a position to dispose of it freely.
6. It does not matter how long the property was in
The spontaneous desistance of the accused is the possession of the accused; it does not matter
exculpatory only: whether the property was disposed or not; what is
i. if made during the attempted stage, and important is whether or not there was asportacion
ii. provided that the acts already committed do or unlawful taking.
not constitute any offense.
Rape

16
 San Beda College of Law
2010 Centralized Bar Operations
The crime of rape is consummated by mere of certain independent accomplishment or
penetration of the male organ no matter how slight cause or of the will of the means
or superficial. accident in the employed by the
which the perpetrator offender is
Note: R.A. 8353 (The Anti-Rape Law of 1997) offender had inadequate or
provides that mere skin to skin contact between the no part. ineffectual.
penis and the labia now consummates the crime of Attempted Frustrated
rape. As to acts of execution
Not all acts of execution All acts of execution
Instances where there is attempted rape: had been done had been done.
1. 1. When the skirt of the victim has been lifted no
matter what position; As to causes of non-accomplishment
2. When the accused mounted on the body of the The felony was not The reason for the
victim; and produced by reason of frustration is some
3. When there is epidermal touching of the genital cause or accident other cause independent of
organs of the accused and the victim. than the offenders own the will of the
spontaneous perpetrator.
In attempted rape, there is the intent to have carnal desistance.
knowledge or sexual intercourse. In acts of As to the phase of the felony involved
lasciviousness there is none (RPC, Art 226-A as The offender is still in The offender is already
amended and Art. 336). the subjective phase as in the objective phase
he has still control of because all the acts of
There is no crime of frustrated rape. The case of his acts. execution were already
People v. Eria (G.R. No. 26298, January 20, 1927) there.
was an exception since the victim was only 3 years
old. ARTICLE 7
LIGHT FELONIES
Common Crimes and their Stages of Execution:
Consummated Frustrated Attempted Light Felonies
These are infractions of law for the commission of
Arson (RPC, Art. 320)
which the penalty of arresto menor or fine not
The tools used exceeding 200 pesos, or both, is provided (RPC,
alone are on Art. 9, par. 3).
fire, or a
furniture or General Rule: Light felonies are punishable only
Any part of the The tools to
thing not when they have been consummated.
building be used for
attached to
burned, even if committing
the building is Reason: They produce light, insignificant moral and
only a small the crime are
on fire (US v. material injuries that public conscience is satisfied
portion. in the building.
Valdez, G.R. with providing a light penalty for their consummation.
No. L-14128, If they are not consummated the wrong done is so
December 10, slight that there is no need of providing a penalty at
1918). all (Albert) (REYES, Book One, supra at. 122).
Estafa (RPC, Art. 315)
The money Exception: If committed against persons or
Deceit and No money
taken has not property, punishable even if attempted or frustrated.
Damage on the was taken yet,
been
victim are only deceit is
damaged or Reason for the exception: Such commission
present. present.
spent. presupposes moral depravity (Id. at 123).
1.The exception with regard to crimes against
Comparison and Differences Among: persons is actually unnecessary, as the only light
felony against persons is slight physical injuries
Attempted Frustrated Impossible
which in the first place is always consummated.
Evil intent is not accomplished. 2. The exception can apply however to attempted or
Evil intent is possible of Evil intent cannot frustrated light felonies against property BUT only
accomplishment. be accomplished. principal and accomplices are criminally liable
What What Evil intent cannot while accessories are exempt.
prevented prevented be accomplished
accomplish- accomplish because its Light Felonies under RPC: (STAMI)
ment is the ment are inherently 1. Slight physical injuries (Art. 266);
intervention causes impossible of

17
2. Theft (Art. 309, par. 7 and 8), when the value of
thing stolen is less than five pesos and theft is
committed under the circumstances enumerated
under Article 308 par. 3;
3. Alteration of boundary marks (Art. 313);
4. Malicious mischief (Art. 328, par. 3; Art. 329, par.
3), when the value of the damage does not
exceed two hundred pesos or cannot be
estimated; and
5. Intriguing against honor (Art. 364).
Note: For light felonies, the only ones who can be
held liable are the principals and accomplices.
ARTICLE 8
CONSPIRACY AND PROPOSAL
TO COMMIT FELONY
General Rule: Mere conspiracy or proposal to
commit a felony is not punishable since they are
only preparatory acts.
Exception: In cases in which the law specially
provides a penalty therefor.
Conspiracy
It exists when two or more persons come to an
agreement concerning the commission of a felony
and decide to commit it.
Agreement may be oral or written, express or
implied.
Requisites of Conspiracy:
1. That two or more persons came to an agreement;
2. That the agreement pertains to the commission of
a felony; and
3. That the execution of the felony was decided
upon.
There must be participation with a criminal
resolution because simple knowledge thereof by a
person may only make him liable as an accomplice
(People v. Comadre, G.R. No. 153559, June 8,
2004).
The law specially provides penalty for mere
conspiracy in:
Under RPC (TRICSM)
1. Treason, (Art. 115);
2. Rebellion, (Art. 136);
3. Insurrection, (Art. 136);
4. Coup d etat, (Art. 136);
5. Sedition, (Art. 141); and
6. Monopolies and combinations in restraint of trade
(Art. 186).
Under special laws (DEAR-ATe)
18
1. Selected acts committed under the Dangerous
Drugs Act;
2. Espionage;
3. Illegal Association;
4. Highway Robbery;
5. Arson; and
6. Terrorism under the Human Security Act.
Conspiracy as a felony, distinguished from
conspiracy as a manner of incurring criminal
liability
As a Manner of Incurring
As a Felony
Criminal Liablity
Conspirators should If the conspirators commit
not actually commit it, say, treason, they will be
treason, rebellion, held liable for treason, and
etc., it being the conspiracy which they
sufficient that two or had before committing
more persons agree treason is only a manner of
and decide to incurring criminal liability,
commit it. not treated as a separate
offense.
Felony relates to a Conspiracy is not treated as
crime actually a separate offense but used
committed. to determine the liability of
the offenders.
In conspiracy, the act of one
is the act of all (REYES,
supra at 125-126).
General Rule: When conspiracy is established, all
who participated therein, irrespective of the quantity
or quality of his participation is liable equally,
whether conspiracy is pre-planned or instantaneous.
Exception: Unless one or some of the conspirators
committed some other crime which is not part of the
intended crime (People v. Valdez, G.R. No. L-
75390, March 25, 1988).
Exception to the Exception: When the act
constitutes a single indivisible offense.
Doctrine of Implied Conspiracy
Conspiracy may be inferred if it is proven that two or
more persons aimed their acts towards the
accomplishment of the same unlawful object, each
doing a part so that their acts although apparently
independent were in fact connected and
cooperative, thus indicating a closeness of personal
association and a concurrence of sentiment
(ESTRADA, Book One, supra at 68).
It is enough that at the time of the commission of the
offense, the offenders acted in concert, each doing
his part to fulfill their common design (People v.
Hernandez, G.R. No. 90641, February 27, 1990).
There is unity of purpose and unity in the execution
of the offense (REYES, Book One, supra at 127).
 San Beda College of Law
2010 Centralized Bar Operations
Note: Mere knowledge, acquiescence to or
agreement to cooperate, is not enough to constitute
one as party to conspiracy, absent any active
participation in the commission of the crime, with a
view to the furtherance of the common design and
purposeconspiracy transcends companionship
(People v. Patano, G.R. No. 129306, March 14,
2003).
In determining whether there is an implied
conspiracy, it must be based on:
1. Overt acts done before, during or after the
commission of the crime; or
2. Words, remarks or language used before, during
or after the commission of the crime.
a.They must be distinct from each other,
independent or separate.
b.They must be closely associated, closely
related, closely linked, and coordinated.
c.They must be for a common criminal design,
joint criminal interest, unity of criminal purpose,
or concerted action, geared towards the
attainment of the felony.
Note: In conspiracy, direct proof of a previous
agreement to commit a crime is not necessary. It
may be deduced from the mode and manner by
which the offense was perpetrated, or inferred from
the acts of the accused themselves when such point
to a joint purpose and design, concerted action and
community of interest (People v. Liad, G.R. No.
133815-17, March 22, 2001).
Note: In the absence of conspiracy or unity of
criminal purpose and intention immediately before
the commission of the crime, or community of
criminal design, the criminal responsibility arising
from the acts directed against one and the same
person is individual and not collective (Tapalla v.
CA, G.R. No. 100682, May 31, 1993).
Proposal to Commit a Felony
It is committed when the person who has decided to
commit a felony proposes its execution to some
other person or persons.
Requisites of Proposal:
1. That a person has decided to commit a felony
(Decision); and
2. That he proposes its execution to some other
person or persons (Proposal).
RPC specially provides penalty for mere proposal in
(TRIC)
1. Treason;
2. Rebellion;
3. Insurrection; and
4. Coup d etat.
Note: There is no crime of proposal to commit
sedition.
19
There is no criminal proposal when:
1. The person who proposes is NOT determined to
commit the felony.
2. There is no decided, concrete and formal proposal
but a mere suggestion.
3. It is not the execution of a felony that is proposed
(REYES, Book One, supra at 131-132).
It is not necessary that the person to whom the
proposal is made agrees to commit TRIC, what
constitutes the felony is the making of the proposal.
ARTICLE 9
CLASSIFICATION OF FELONIES
ACCORDING TO GRAVITY
Grave felonies
Felonies to which the law attaches the capital
punishment or penalties which in any of their periods
are afflictive, in accordance with Art. 25 of the Code.
These are:
1. Reclusion perpetua;
2. Reclusion temporal;
3. Perpetual or Temporary Absolute Disqualification;
4. Perpetual or Temporary Special Disqualification;
5. Prision mayor; and
6. Fines more than Php 6000.
Less grave felonies
Felonies which the law punishes with penalties
which in their maximum period are correctional, in
accordance with Art. 25 of the Code. These are:
1. Prision correccional
2. Arresto mayor;
3. Suspension;
4. Destierro; and
5. Fines equal to or more than Php 200 but less than
Php 6000.
Light felonies
Those infractions of law for the commission of which
the penalty of arresto menor or a fine not exceeding
200 pesos, or both, is provided.
Importance of Classification
1. To determine whether these felonies can be
complexed or not;
2. To determine the prescription of the crime and the
prescription of the penalty;
3. To determine the duration of subsidiary penalty to
be imposed (Art. 39[2]), where the subsidiary
penalty is based on severity of the penalty;
4. To determine the duration of the detention in case
of failure to post the bond to keep the peace (Art.
35);
5. To determine whether or not the person in autority
or his agents have committed delay in the delivery
 of detained persons to the judicial authority (Art.
125); and
6. To determine the proper penalty for quasi-offenses
(BOADO, supra at 65-66).
ARTICLE 10
OFFENSES NOT SUBJECT
TO THE PROVISIONS OF THE RPC
General Rule: RPC provisions are supplementary
to special laws.
Exceptions:
1. Where the special law provides otherwise; and
2. When the provisions of the RPC are impossible of
application, either by express provision or by
necessary implication.
Thus, when the special law adopts the penalties
imposed in the RPC, such as reclusion perpetua
or reclusin temporal, the provisions of the RPC
on imposition of penalties based on stage of
execution, degree of participation, and attendance
of mitigating and aggravating circumstances may
be applied by necessary implication (ESTRADA,
Book One, supra at 81).
CHAPTER TWO
JUSTIFYING CIRCUMSTANCES AND
CIRCUMSTANCES WHICH EXEMPT
FROM CRIMINAL LIABILITY
(ARTS. 11-12)
Five circumstances affecting criminal liability:
1. Justifying circumstances RPC, Art. 11, (6); R.A.
9262 VAWC;
2. Exempting circumstances (7) RPC, Art. 12;
3. Mitigating circumstances (10) RPC, Art. 13;
4. Aggravating circumstances (21) RPC, Art. 14;
and
5. Alternative circumstances (3) RPC, Art. 15.
Other circumstances found elsewhere in the
RPC:
1. Absolutory cause the effect is to absolve the
offender from criminal liability, although not from
civil liability (ESTRADA, Book One, supra at 85).
2. Extenuating circumstances the effect is to
mitigate the criminal liability of the offender and
has the same effect as mitigating circumstances
(i.e. concealment of dishonor in the crime of
infanticide insofar as the mother and maternal
grandparents are concerned, the penalty is
lowered by two degrees; the crime of adultery
committed by a married woman abandoned by her
husband) (Id.).
Imputability
20
It the quality by which an act may be ascribed to a
person as its author or owner (Id. at 86). It implies
that the act committed has been freely and
consciously done and may therefore be put down to
the doer as his very own.
Responsibility
It is the obligation of taking the penal and civil
consequences of the crime (Id.).
Guilt
It is an element of responsibility, for a man cannot
be made to answer for the consequences of a crime
unless he is guilty (Id.).
ARTICLE 11
JUSTIFYING CIRCUMSTANCES
Justifying Circumstances
Those where the act of a person is said to be in
accordance with law, so that such person is deemed
not to have transgressed the law and is free from
both criminal and civil liability. There is no civil
liability, except in par. 4 of Art. 11 where the civil
liability is borne by the persons benefited by the act
(Id.).
An affirmative defense, hence, the burden of proof is
on the accused who must prove it by clear and
convincing evidence (Id. at 87).
There is both no crime and no criminal.
Basis: Lack of Criminal Intent
There is both no crime and no criminal.
It is an affirmative defense, hence, the burden of
proof is on the accused who must prove it by clear
and convincing evidence (Id. at 87).
Par. 1. Self-Defense
Rights Included in Self-Defense:
Self-defense includes not only the defense of the
person or body of the one assaulted but also that of
his rights, the enjoyment of which is protected by
law. Thus, it includes:
1. Right to Honor Hence, a slap on the face is
considered as unlawful aggression since the face
represents a person and his dignity. It is a serious
personal attack; a physical assault, coupled with a
willful disgrace; and it may, therefore, be
frequently regarded as placing in real danger a
persons dignity, rights and safety (Rugas v.
People, GR No. 147789, January 14, 2004).
2. Defense of Property Rights - It can be invoked if
there is an attack upon the property although it is
not coupled with an attack upon the person of the
owner of the premises. All the elements for
 San Beda College of Law
2010 Centralized Bar Operations
justification must however be present (People v.
Narvaez, G.R. No. L-33466-67, April 20, 1983).
Subjects of Self-Defense: (PRPH)
1. Defense of Person;
2. Defense of Rights;
3. Defense of Property; and
4. Defense of Honor.
What is important is not the duality of the attack but
whether the means employed is reasonable to
prevent the attack.
Reasons for Recognizing Self-defense as a
Justifying Circumstance:
1. Impulse of self-preservation;
2. State cannot provide protection for each of its
constituents (REYES, Book One, supra at 148).
Stand Ground When in the Right
The law does not require a person to retreat when
his assailant is rapidly advancing upon him with a
deadly weapon (US v. Domen, G.R. No. L-12963,
October 25, 1917).
Reason: He runs the risk of being attacked in the
back by the aggressor.
Requisites: (URL)
1. Unlawful aggression (condition sine qua non);
Kinds of aggression:
a.Lawful
i. In the exercise of a right; and
ii. In the fulfillment of a duty
b.Unlawful
2. Reasonable necessity of the means employed to
prevent or repel it (if by a peace officer,
reasonable necessity of the means employed to
overcome opponent); and
3. Lack of sufficient provocation on the part of the
person defending himself.
Unlawful aggression
a.Equivalent to an actual physical assault;
Actual
The danger must be present, that is, actually in
existence (Id.).
Note: The person defending himself must have
been attacked with actual physical force with the
actual use of weapon (Id. at 155).
b.Threatened assault of an immediate and
imminent kind which is offensive and positively
strong, showing the wrongful intent to cause
injury (REYES, Book One, supra at 152);
Imminent
21
The danger is on the point of happening. It is
not required that the attack already begins, for it
may be too late (Id. at 154).
c. Must come from the person attacked by the
accused;
Note: No unlawful aggression when there was
an agreement to fight (People v. Monteroso,
G.R. No. 28538, August 4, 1928).
The challenge to fight must be accepted
(People v. Del Pilar, C.A., 44 O.G. 596).
But aggression which is ahead of a stipulated
time and place is unlawful (Severino Justo v.
CA, 53 O.G. 4083).
d.Not merely oral threats or threatening stance or
posture;
Note: Insulting words addressed to the
accused, no matter how objectionable that may
have been, without physical assault, could not
constitute unlawful aggression (US v. Carrero,
G.R. No.3956, January 10, 1908). HOWEVER,
a slap in the face is an unlawful aggression. The
reason is that the face represents a person and
his dignity, slapping it is a serious personal
attack (People v. Sabio, G.R. No. L-23734, April
27, 1967).
Note: Mere belief in an impending attack is NOT
sufficient. Neither is intimidating or threatening
attitude (People v. Bautista, G.R. No. 109800,
March 12, 1996).
e. In relation to mistake of fact, the belief of the
accused may be considered in determining the
existence of unlawful aggression, e.g. there is
self-defense even if the aggressor used a toy
gun, provided that the accused believed it to be
a real gun (People v. Boral, 11 C.A. Rep. 914).
Reasonable necessity of the means employed
1. It involves two elements, necessity for the
course of action and necessity of the means
employed, both of which should be reasonable.
2. In determining reasonable means, some factors
are to be considered such as: (PINES)
a. Presence of imminent danger;
b. Impelled by the instinct of self-preservation;
c. Nature and quality of the weapon used by the
accused compared to the weapon of the
aggression;
d. Emergency to which the person defending
himself has been exposed to;
e. Size and/or physical character of the
aggressor compared to the accused and other
 circumstances that can be considered circumstances of self-defense under the RPC (Sec.
showing disparity between aggressor and 26). The law provides for an additional justifying
accused. circumstance.

This element should be interpreted liberally in Battered Woman Syndrome

favor of the law-abiding citizen. It is a scientifically defined pattern of psychological
and behavioral symptoms found in women living in
Perfect equality between the weapons used by the battering relationships as a result of cumulative
one defending himself and that of the aggressor is abuse (RA, 9262, Sec 3[c]).
not required, neither is the material
commensurability between the means of attack Cycle of violence has three phases: (TAT)
and defense. Rational equivalence is enough 1. The Tension building phase;
(ESTRADA, Book One, supra at 91). 2. The Acute battering incident; and
3. The Tranquil, loving (or at least non-violent) phase
Reason: Because the person assaulted does not (People v. Genosa G.R. No. 135981, January 15,
have sufficient tranquility of mind to think and to 2004).
calculate (Jayme v. People, G.R. No. 124506,
September 9, 1999). Note: The defense should prove all three (3) phases
of cycle of violence characterizing the relationship of
When Agression Ceases the parties (Id.).
When the aggressor retreats, the aggression
ceases (People v. Alconga and Bracamonte, G.R. Note: The existence of battered woman syndrome
No. L-162, April 30, 1947). in a relationship does not in itself establish a legal
right of a woman to kill her partner. Evidence must
Exception: When retreat is made to take a more still be considered in the context of self-defense
advantageous position to insure the success of (BOADO, supra at 85).
the attack begun, unlawful aggression continues
(REYES, Book One, supra at 164). Four characteristics of the syndrome:
1. The woman believes that the violence was her
Retaliation Self-defense fault;
2. She has an inability to place the responsibility for
Inceptual unlawful Unlawful aggression
the violence elsewhere;
aggression had was still existing
3. She fears for her life and/or her childrens life; and
already ceased when when the aggressor
the accused attacked was injured by the 4. She has an irrational belief that the abuser is
him. person making the omnipresent and omniscient (Id.).
defense.
Only a certified psychologist or psychiatrist can
There must be no prove the existence of the Battery Woman
appreciable time Syndrome in a woman.
interval between the
unlawful aggression Battery
and the killing. It is any act of inflicting physical harm upon the
woman or her child resulting to physical and
Lack of Sufficient Provocation psychological or emotional distress (Sec 3[b]).
Sufficient provocation should not come from the
person defending himself/accused, and it must Par. 2. Defense of Relatives
immediately precede the aggression. Requisites:
1. Unlawful aggression;
Defense of property should be coupled with danger 2. Reasonable necessity of the means employed to
to the person defending oneself; if there is no prevent or repel it; and
danger to the person or the persons life or limb, 3. In case the provocation was given by the person
defense of property cannot be invoked. attacked, the one making the defense had no part
therein.
Under Republic Act 9262, known as the Anti-
Violence against Women and their Children Act Relatives that can be defended: (SADBroSAC4)
of 2004 1. Spouse;
Victim-survivors who are found by the courts to be 2. Ascendants;
suffering from Battered Woman Syndrome do not 3. Descendants;
incur any criminal or civil liability notwithstanding the 4. Legitimate, natural or adopted Brothers and
absence of any of the elements for justifying Sisters, or relatives by Affinity in the same

22
 San Beda College of Law
2010 Centralized Bar Operations
degrees. Death of the spouse terminates the
relationship by affinity; and
5. Relatives by Consanguinity within the fourth (4th)
civil degree.
The fact that the relative defended gave provocation
is immaterial (ESTRADA, Book One, supra at 99).
There is no distinction in the Revised Penal Code
whether the descendant should be legitimate or
illegitimate; when the law does not distinguish the
courts cannot distinguish.
Justification: It is found not only upon a
humanitarian sentiment, but also upon the impulse
of blood which impels men to rush, on the occasion
of great perils, to the rescue of those close to them
by ties of blood.
Par. 3. Defense of Stranger
Stranger
He is any person not included in the enumeration of
relatives under par. 2 of Art. 11.
Damage to another includes injury to persons and
damage to property.
A person defending his common-law spouse or
adopted child will fall under this paragraph.
Requisites:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to
prevent or repel it; and
3. The person defending was not induced by
revenge, resentment or other evil motive.
Motive is relevant only in this kind of defense.
Justification: The ordinary person would not stand
idly by and see his companion killed without
attempting to save his life.
Par. 4. Avoidance of greater evil or injury
State of Necessity
Art. 11, par. 4 Art. 12, par. 4
Offender deliberately Offender accidentally
caused damage. caused damage.
Requisites: (EIP)
1. That the evil sought to be avoided actually exists;
2. That the injury feared be greater than that done to
avoid it; and
3. There be no other practical and less harmful
means of preventing it.
23
It is only in this par. (4) that the person defending
himself incurs civil liability, since generally in this
article there is no civil liability on the part of the
accused. Such liability is borne by the person
benefited (REYES, Book One, supra at 207).
Greater evil must not be brought about by the
negligence or imprudence or violation of law by the
actor.
The damage caused by the accused in the state of
necessity contemplated here is deliberate, while that
in Par. 4 of Art. 12 is accidentally caused
(REGALADO, Criminal Law Conspectus, 2009 ed.,
[hereinafter, REGALADO], p. 157).
Par. 5. Fulfillment of duty or lawful exercise of
right or office
Requisites:
1. That the accused acted in the performance of a
duty or in the lawful exercise of a right or office;
and
2. That the injury caused or the offense committed
be the necessary consequence of the due
performance of duty or the lawful exercise of such
right or office.
In People v. Delima (G.R. No. 18660, December 22,
1922), the deceased who escaped from prison while
serving sentence was under the obligation to
surrender, and had no right, after evading the
service of his sentence to commit assault and
disobedience with a weapon on his hand, which
compelled the policeman to resort to such extreme
means, which although it proved to be fatal, was
justified by the circumstances.
The shooting by prisoner guards of escaping
prisoners is always justified.
A security guard who shot a thief who refused to
surrender is not justified.
The executor of death convicts at the Bilibid Prison
cannot be liable for murder for the executions
performed by him because he was merely acting in
lawful exercise of his office.
Doctrine of Self-help
Article 429 of the Civil Code is applicable under this
paragraph. The article states, The owner or lawful
possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual
or threatened unlawful physical invasion or
usurpation of his property.
The actual invasion of property may consist of a
mere disturbance of possession or of a real
dispossession. If it is a mere disturbance of
possession, force may be used against it at any time
as long as it continues, even beyond the prescriptive
period of forcible entry. If the invasion consists of a
real dispossession, force to regain possession can
be used only immediately after the dispossession
Exempting Circumstances (or the
Circumstances for Non-imputability)
Those grounds for exemption from punishment,
because there is wanting in the agent of the crime
any of the conditions which makes the act voluntary,
or negligent (ESTRADA, Book One, supra at 106).

Illustration: There is a crime but no criminal.

Q: A constructed a small house in a piece of land
which he believed to be a disposable public land. He
had been occupying the lot for over a year. One day,
B came and claimed ownership over the land. B
proceeded in dismantling the house of A. The latter
pleaded to B to stop but his plea fell on deaf ears.
Thereupon, A pulled B to prevent him from further
dismantling the house. In the process, B fell on the
ground and suffered physical injuries. Is A liable for
the injuries sustained by B?
The burden of proof to prove the existence of an
exempting circumstance lies with the defense.
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 (Id.).
There is a crime but no criminal.

ANS: No, A is not liable. Under the law, he has the Justifying Exempting
right to employ reasonable force to prevent or repel Circumstance Circumstance
actual or threatened assault on his property. His act
of pulling B was reasonably necessary to protect his It affects the act, not the It affects the actor, not
possessory rights over his property (People v. actor. the act.
Narvaez, G.R. Nos. L-33466-67, April 20, 1983). The act is considered to The act complained of
have been done within is actually wrongful, but
Q: Suppose in the same problem, A shot B with his the bounds of law; the actor is not liable.
45 caliber gun instead of pulling down B and B dies hence, legitimate and
as a result. Will your answer be the same? lawful in the eyes of the
law.
ANS: No. This time A is criminally liable for the Since the act is Since the act
death of B. His act of shooting B to death is not considered lawful, there complained of is
reasonably necessary to prevent the invasion of his is no crime. actually wrong there is
property (ESTRADA, Book One, supra at 103). a crime but since the
actor acted without
Par. 6. Obedience to an order issued for some voluntariness, there is
lawful purpose no dolo nor culpa.
No crime There is a crime
Requisites: No criminal No criminal
1. That an order has been issued by a superior; No criminal liability No criminal liability
2. That such order must be for some lawful purpose; No civil liability (except There is civil liability
and Art. 11, par. 4, where (except Art. 12, par. 4
3. That the means used by the subordinate to carry there is civil liability) and 7, where there is
out said order is lawful. no civil liability)
Contemplates May be invoked in
Par. 6 presupposes that what was obeyed by the unintentional acts and culpable felonies
accused was a lawful order; but if the accused hence, are incompatible
complied with an unlawful order under a mistake of with dolo
fact, he should not incur criminal liability
(REGALADO, supra at 58). Par. 1. Imbecility or Insanity
Subordinate is not liable for carrying out an illegal Imbecility
order if he is not aware of its illegality and he is not It exists when a person, while of advanced age, has
negligent (Tabuena v. Sandiganbayan, G.R. No. a mental development comparable to that of children
103501-03, February 17, 1997). between two and seven years of age (REYES, Book
One, supra at 216).
ARTICLE 12
EXEMPTING CIRCUMSTANCES Insanity
It exists when there is a complete deprivation of
intelligence or freedom of the will. Mere abnormality

24
 San Beda College of Law
2010 Centralized Bar Operations
of mental faculties is not enough especially if the Time when
offender has not lost consciousness of his acts accused Effect on criminal
(People v. Puno, G.R. No, L-33211, June 29, 1981). suffers liability
insanity
Insanity and imbecility, to exempt under Par. 1, must At the time of Exempt from liability.
be complete, and they cannot be graduated in the
degrees of gravity (REGALADO, supra at 60). commission of
the crime
An insane person is not so exempt if it can be During trial Proceedings will be
shown that he acted during a lucid interval. But an suspended and accused
imbecile is exempt in all cases from criminal liability is committed to a
(REYES, Book One, supra at 216). hospital.
After Execution of judgment is
Dementia Praecox is a form of psychosis where judgment or suspended, the accused
homicidal attack is common, because of delusions while serving is committed to a
that he is being interfered with sexually, or that his sentence hospital. The period of
property is being taken. During the period of confinement in the
excitement, such person has no control of his acts hospital is counted for the
(People v. Bonoan, G.R. No. L-45130, February 17, purpose of the
1937). prescription of the penalty
(ESTRADA, Book One,
Somnambulism or sleepwalking must be clearly supra at 107).
proven to be considered as an exempting
circumstance under this Article (People v. Gimena, The fact that a person behaves crazily is not
G.R. No. 33877, February 6, 1931). conclusive that he is insane. The prevalent meaning
of the word crazy is not synonymous with the legal
Feeblemindedness is not exempting but can be terms insane, non compos mentis, unsound
considered as mitigating (People v. Formigones, mind, idiot, or lunatic. The popular conception of
G.R. No. L-3246, November 29, 1950). the word crazy is being used to describe a person
or an act unnatural or out of the ordinary. A man may
Malignant Malaria affects the nervous system and behave in a crazy manner but it does not
causes among others such complication as acute necessarily and conclusively prove that he is legally
melancholia and insanity at times, and if clearly so (People v. Florendo, G.R. No. 136845, October
proven will be considered as an exempting 8, 2003).
circumstance under this paragraph (People v.
Lacena, G.R. No. 46961, January 15, 1940). Basis: Complete absence of intelligence.

Epilepsy is not a pervading disease but a nerve
disorder. Hence, after a seizure, the victim is normal
for all intents and purposes (People v. Teves, G.R
No. 97435, July 14, 1995).
Two tests of insanity:
1. Test of Cognition complete deprivation of
intelligence in committing the crime.
2. Test of Volition total deprivation of freedom of
will (People v. Rafanan, Jr., G.R. No. 54135,
November 21, 1991).
In the Philippines, both cognition and volition tests
are applied. There must be complete deprivation of
the intellect (cognition) or will or freedom (volition)
The defense must prove that the accused was
insane at the time of commission of the crime
because the presumption is always in favor of sanity
(People v. Bascos, G.R. No. 19605, December 19,
1922).
Par. 2. & 3. Minority (Amended and superseded
by R.A. 9344)
JUVENILE JUSTICE AND WELFARE ACT OF
2006, R.A. 9344 as amended by R.A. 10630 (AN
ACT STRENGTHENING THE JUVENILE JUSTICE
SYSTEM IN THE PHILIPPINES)
Child in conflict with the law
It refers to a child who is alleged as, accused of, or
adjudged as, having committed an offense under
Philippine laws (R.A. 9344, Sec. 4[e]).
1. Minimum age of Responsibility - Under R.A.
9344 as amended, the following are EXEMPT
from criminal liability:
a. Child fifteen (15) years of age or under at the
time of the commission of the offense. The child
shall be however subject to an intervention
program pursuant to Section 20 of the Act.
If after the intervention, there is no reform, the
minor shall be returned to the court for the

25
 promulgation of the decision against the minor;
and then the court shall either decide on the
sentence or extend the intervention.
If it has been determined that the child taken
into custody is fifteen (15) years old or below,
the authority which will have an initial contact
with the child, in consultation with the local
social welfare and development officer, has the
duty to immediately release the child to the
custody of his/her parents or guardian, or in the
absence thereof, the childs nearest relative.
The child shall be subjected to a community-
based intervention program supervised by the
local social welfare and development officer,
unless the best interest of the child requires the
referral of the child to a youth care facility or
Bahay Pag-asa managed by LGUs or licensed
and/or accredited NGOs monitored by the
DSWD (R.A. 9344, Sec. 20).
Neglected Child
A child who is above twelve (12) years of age up
to fifteen (15) years of age and who commits
parricide, murder, infanticide, kidnapping and
serious illegal detention where the victim is
killed or raped, robbery, with homicide or rape,
destructive arson, rape, or carnapping where
the driver or occupant is killed or raped or
offenses under Republic Act No. 9165
(Comprehensive Dangerous Drugs Act of 2002)
punishable by more than twelve (12) years of
imprisonment, shall be deemed a neglected
child under Presidential Decree No. 603, as
amended, and shall be mandatorily placed in a
special facility within the youth care faculty or
Bahay Pag-asa called the Intensive Juvenile
Intervention and Support Center (IJISC) (R.A.
9344, Sec. 20-A).
A child who is above twelve (12) years of age up
to fifteen (15) years of age and who commits an
offense for the second time or oftener: Provided,
That the child was previously subjected to a
community-based intervention program, shall be
deemed a neglected child under Presidential
Decree No. 603, as amended, and shall
undergo an intensive intervention program
supervised by the local social welfare and
development officer: Provided, further, That, if
the best interest of the child requires that he/she
be placed in a youth care facility or Bahay Pag-
asa, the childs parents or guardians shall
execute a written authorization for the voluntary
commitment of the child: Provided, finally, That if
the child has no parents or guardians or if they
refuse or fail to execute the written authorization
for voluntary commitment, the proper petition for
involuntary commitment shall be immediately
filed by the DSWD or the LSWDO pursuant to
26
Presidential Decree No. 603, as amended (R.A.
9344, Sec. 20-B).
Note: A child is deemed to be fifteen (15) years
of age on the day of the fifteenth anniversary of
his/her birthdate (R.A. 9344, Sec. 6).
b. Child above 15 but below 18 who acted without
discernment.
Discernment
It is the mental capacity to understand the
difference between right and wrong as
determined by the childs appearance, attitude,
comportment and behavior not only before and
during the commission of the offense but also
after and during the trial (Guevara v. Almodovar,
G.R. No. 75256, January 26, 1989).
It is manifested through:
i. Manner of committing the crime
ii. Conduct of the offender
Discernment Intent
Refers to moral Refers to the desired
significance the act of the person
person ascribes to
the act
After initial investigation, the local social worker
may:
a. Proceed in accordance with Section 20 if the
child is fifteen (15) years or below or above
fifteen (15) but below eighteen (18) years old,
who acted without discernment; and
b.If the child is above fifteen (15) years old but
below eighteen (18) and who acted with
discernment, proceed to diversion under the
following without undergoing court proceedings
subject to the following conditions: (R.A. 9344,
Sec. 23)
i. Where the imposable penalty is not more than
six (6) years of imprisonment, the Punong
Barangay or law enforcement officer shall
conduct mediation, family conferencing and
conciliation.
ii. Where the imposable penalty exceeds six (6)
years imprisonment, diversion measures may
be resorted to only by the court.
2. Exemption from criminal liability herein
established does not include exemption from civil
liability.
3. Determination of age The child in conflict with
the law shall enjoy the presumption of minority
until he/she is proven to be 18 years old or older
(R.A. 9344, Sec. 7, par.1).
The age of a child may be determined from:
 San Beda College of Law
2010 Centralized Bar Operations
a. Child's birth certificate;
b. Baptismal certificate; or
c. Any other pertinent documents.
In the absence of these documents, age may be
based on information from the child
himself/herself, testimonies of other persons, the
physical appearance of the child and other
relevant evidence.
In case of doubt as to the age of the child, it shall
be resolved in his/her favor.
Any person contesting the age of the child in
conflict with the law may:
a. If the case against the child has not yet been
filed file a case in a summary proceeding for
the determination of age prior to the filing of the
information in any appropriate court before the
Family Court which shall decide the case within
twenty-four (24) hours from receipt of the
appropriate pleadings of all interested parties.
b. If a case has been fiied against the child in
conflict with the law and is pending in the
appropriate court - file a motion to determine the
age of the child in the same court where the
case is pending. Pending hearing on the said
motion, proceedings on the main case shall be
suspended.
4. The prosecutor shall conduct a preliminary
investigation and file an information upon
determination of probable cause in the following
instances (R.A. 9344, Sec. 33):
a.When the child in conflict with the law does not
qualify for diversion;
b.When the child, his/her parents or guardian
does not agree to diversion; and
c.Upon determination by the prosecutor that
diversion is not appropriate for the child in
conflict with the law.
5. Automatic Suspension of Sentence Once the
child who is under 18 years of age at the time of
commission of the offense is found guilty of the
offense charged, the court shall determine and
ascertain any civil liability which may have
resulted from the offense committees. However,
instead of pronouncing the judgment of conviction,
the court shall place the child in conflict with law
under suspended sentence, without need of
application and impose the appropriate disposition
measures as provided in the Supreme Court Rule
on Juveniles in Conflict with the Law (R.A. 9344,
Sec. 38).
6. Upon recommendation of the social worker who
has custody of the child, the court shall order the
final discharge of the child. The discharge of the
child in conflict with the law shall not affect the civil
27
liability resulting from the commission of the
offense (R.A. 9344, Sec. 39).
7. Status Offenses refers to any conduct not
considered an offense or not penalized if
committed by an adult shall not be considered an
offense and shall not be punished if committed by
a child.
8. Offenses not applicable to children Persons
below 18 years of age shall be exempt from
prosecution for the crime of:
a. Vagrancy and Prostitution (RPC,Art. 202);
b.Mendicancy (P.D. No. 1563); and
c. Sniffing of Rugby (P.D. No. 1619).
PROVIDED, that said persons shall undergo
appropriate counseling and treatment program
Summary of Rules
If the judgment is an acquittal, the decision shall
immediately take effect without suspension and the
decision shall be promulgated and pronounced.
If the judgment is conviction, the promulgation of the
decision and the sentence shall be suspended by
the court, the minor shall be ordered to undergo
intervention, which shall have the following effects:
a. If after the intervention, there is reform on the part
of the minor, the minor shall be returned to the
court to dismiss the criminal case and dismiss the
charges against the minor.
b. If after the intervention, there is no reform, the
minor shall be returned to the court for the
promulgation of the decision against the minor;
and then the court shall either decide on the
sentence or extend the intervention.
Note: Only when there is (1) refusal to be subjected
to reformation or (2) when there is failure to reform
can the child be subjected to criminal prosecution
and the judicial system.
Basis: Complete absence or lack of intelligence.
Par. 4. Accident without fault or intention of
causing it
Accident
It is an occurrence that happens outside the sway of
our will, and although it comes about through some
act of our will, it lies beyond the bounds of humanly
foreseeable consequences (REYES, Book One,
supra at 231).
Elements: (LDMW)
1. A person is performing a lawful act;
2. With due care;
3. He causes injury to another by mere accident; and
4. Without fault or intention of causing it.
Basis: Lack of negligence and intent. Must have been made May be generated by
to operate directly a threatened act
Par. 5. A person who acts under the compulsion upon the person of directed to a 3rd
of an irresistible force the accused person, e.g. the wife
of the accused who
Elements: (PIT) was kidnapped
1. That the compulsion is by means of physical The injury feared may The evil feared must
force; be of a lesser degree be greater or at least
2. That the physical force must be irresistible; and than the damage equal to the damage
3. That the physical force must come from a third caused by the caused to avoid it.
person. accused.

Passion and obfuscation cannot amount to

irresistible force (REYES, Book One, supra at 235). Par. 7. Insuperable cause

The force must be so irresistible as to reduce the Insuperable cause

actor to a mere instrument who acts not only without It is some motive which has lawfully, morally or
will but against his will (People v. Loreno, G.R. No. physically prevented a person to do what the law
L-54414, July 9, 1984). commands.

The person who used the force or created the fear is
criminally and primarily civilly liable, but the accused
who performed the act involuntarily and under
duress is still secondarily liable (RPC, Art. 101).
Basis: Complete absence of freedom.
Par. 6. Uncontrollable fear
It applies to felonies by omission (BOADO, supra at
130).
Elements: (RFI)
1. That an act is required by law to be done;
2. That a person fails to perform such act; and
3. That his failure to perform such act was due to
some lawful or insuperable cause.

Elements: Illustrations:
1. That the threat which causes the fear is of an evil The municipal president detained the offended party
greater than, or at least equal to, that which he is for three days because to take him to the nearest
required to commit; and justice of the peace required a journey for three
2. That it promises an evil of such gravity and days by boat as there was no other means of
imminence that the ordinary man would have transportation. The distance which required a
succumbed to it (US v. Elicanal, G.R. No. 11439, journey for three days was considered an
October 28, 1916). insuperable cause (US v. Vicentillo, G.R. No. 6082,
March 18, 1911).
Duress as a valid defense should be based on real,
imminent, or reasonable fear for ones life or limb Note: Under the law, the person arrested incident to
and should not be speculative, fanciful, or remote arrest must be delivered to the nearest judicial
fear (People v. Borja, G.R. No. L-22947, July 12, authority at most within 36 hours under Art. 125
1979). RPC; otherwise, the public officer will be liable delay
in the delivery to judicial authorities (US v. Vicentillo,
The compulsion must be of such character as to G.R. No. 6082, March 18, 1911).
leave no opportunity to the accused for escape or
self-defense in equal combat (People v. Baldogo, A mother who at the time of childbirth was overcome
G.R. Nos. 128106-07, January 24, 2003). by severe dizziness and extreme debility, and left
the child in a thicket where said child died, is not
It must presuppose intimidation or threat, not force liable for infanticide because it was physically
or violence. impossible for her to take home the child (People v.
Bandian, G.R. No. 45186, September 30, 1936).
Basis: Complete absence of freedom.
The severe dizziness and extreme debility of the
Irresistible Force Uncontrollable Fear woman constitute an insuperable cause (People v.
Offender uses Offender employs Bandian, G.R. No. 45186, September 30, 1936).
violence or physical intimidation or threat
force to compel in compelling another Basis: Lack of intent
another person to to commit a crime.
commit a crime.

28
 San Beda College of Law
2010 Centralized Bar Operations
Absolutory Causes are those where the act crime committed: the former, as principal by
committed is a crime but for reasons of public policy induction; and the latter, as principal by direct
and sentiment, there is no penalty imposed participation (Id.).
(ESTRADA, Book One, supra at 115).

Examples of Absolutory Causes: (DELIMA2-T2) CHAPTER THREE

1.Spontaneous desistance (Art. 6); CIRCUMSTANCES WHICH MITIGATE
2.Attempted or frustrated light felonies (Art. 7); CRIMINAL LIABILITY
3.Accessories who are exempt from criminal liability
by reason or relationship (Art. 20) and in light ARTICLE 13
felonies; MITIGATING CIRCUMSTANCES
4.Slight or less serious physical injuries inflicted
under exceptional circumstances (Art. 247); Mitigating Circumstances
5.Persons exempt from criminal liability for theft, Those which if present in the commission of the
swindling and malicious mischief (Art. 332); crime, do not entirely free the actor from criminal
6.Instigation; liability, but serve only to reduce the penalty
7.Trespass to dwelling when the purpose of entering (REYES, Book One, supra at. 249-250).
anothers dwelling against the latters will is to
prevent some serious harm to himself, the A mitigating circumstance arising from a single fact
occupants of the dwelling or a third person, or for absorbs all the other mitigating circumstances
the purpose of rendering some service to arising from the same fact.
humanity or justice, or when entering cafes,
taverns, inns and other public houses, while the Ordinary Mitigating Privileged Mitigating
same are open (Art. 280, par. 2); Circumstance Circumstance
8.Marriage of the offender and the offended party in Source
cases of seduction, abduction, acts of
Subsections 2-10 of Subsection 1 of Art.
lasciviousness and rape (Art. 344);
Art. 13 (RPC) 13 of RPC, Arts. 68,
9.Adultery and concubinage if the offended party
69 and 64 of RPC
shall have consented or pardoned the offenders.
Paragraphs 1 and 2
(Art. 344)
are privileged Article 64 applies only
mitigating under when there are two or
Entrapment is NOT an absolutory cause. A buy-
Article 68 as more ordinary
bust operation conducted in connection with illegal
amended by R.A mitigating
drug-related offenses is a form of entrapment
9344 and Article 69. circumstances without
(ESTRADA, Book One, supra at 115).
any generic
Subsection 1 of Art. aggravating
Entrapment Instigation 13 are ordinary circumstances.
Ways and means Instigator induces mitigating
are resorted to for the would-be circumstance, if Art.
the capture of accused to commit 49 is not applicable.
lawbreaker in the the crime, hence he
As to the effect
execution of his becomes a co-
criminal plan. principal. If not offset (by a It operates to reduce
The means The law enforcer generic aggravating the penalty by one or
originates from the conceives the circumstance) it will two degrees.
mind of the criminal. commission of the operate to have the
crime and suggests penalty imposed at its
to the accused who minimum period,
adopts the idea and provided the penalty
carries it into is a divisible one.
execution. As to offset
Not a bar to the It will result in the May be offset by Cannot be offset by a
prosecution and acquittal of the generic aggravating generic aggravating
conviction of the accused. circumstance. circumstance.
lawbreaker.
Note: In self-defense, defense of a relative or
defense of a stranger, it is essential that unlawful
If the one who made the instigation is a private aggression be present, otherwise there can be no
individual, not performing public function, both he must be unlawful aggression and any of the two
and the one induced are criminally liable for the remaining elements. Under Art. 69 of RPC, when

29
only unlawful aggression is present, the accused is
entitled to a penalty lower in degree. If unlawful
aggression and any of the remaining two elements
are present, the accused is entitled to two degrees
lower (ESTRADA, Book One, supra at 120).
Par. 1. Incomplete justifying or exempting
circumstances
Applies when all the requisites necessary to justify
the act or to exempt from criminal liability are NOT
attendant. Provided, majority of the requisites are
present.
1. Incomplete self-defense, defense of relatives,
and defense of a stranger - unlawful
aggression must be present, it being an
indispensable requisite. It is considered ordinary
mitigating circumstance if only unlawful
aggression is present. When two of the three
requisities (i.e., unlawful aggression and any one
of the other two), the case should be considered a
privileged mitigating circumstance referred to in
Art. 69 of this Code (REYES, Book One, supra at
255).
2. Incomplete justifying circumstance of
avoidance of greater evil or injury if any of
the last two requisites is absent (i.e., injury feared
be greater than that to avoid it or there be no other
practical and less harmful means of preventing it).
3. Incomplete justifying circumstance of
performance of duty in People v. Oanis, when
one of the two requisites under par. 5 of Art. 11
was present, Article 69 was applied. Thus, when
the justifying or exempting circumstance has two
requisites only, it seems that there is no ordinary
mitigating circumstance in this case but a
privileged mitigating circumstance.
4. Incomplete justifying circumstance of
obedience to an order the order must always
be from a superior.
5. Incomplete exempting circumstance of
minority over 9 and under 15 years of age
under R.A. 9344, a child below 15 years but below
18 years of age shall be exempt from criminal
liability UNLESS he/she acted with discernment
(R.A. 9344, Sec. 6). In other words, where before,
an offender 15 years or over but under 18 is
entitled only to the benefits provided under Art. 68
of RPC, under RA 9344, such offender may be
exempt from criminal liability should he/she acted
without discernment.
On the other hand, if such offender acted with
discernment, such child in conflict with the law
shall undergo diversion programs provided under
30
Chapter 2 of R.A. 9344 (REYES, Book One, supra
at 263).
Diversion
It is an alternative, child-appropriate process of
determining the responsibility and treatment of
child in conflict with the law on the basis of his/her
social, cultural, economic, pyschological or
educational background without resulting to formal
court proceedings (RA 9344,Sec 4[j]).
6. Incomplete exempting circumstance of
accident under par. 4 of Article 12 there are
four requisites, namely:
a. A person is performing a lawful act;
b. With due care;
c. He causes an injury to another by mere
accident; and
d. Without fault or intention of causing it.
If the requisites (b) with due care and (d) without
fault are absent Art. 365, in effect there is a
mitigating circumstance because the penalty is
lower than that provided for intentional felony
If the requisites (a) a person is performing a lawful
act and (d) without intention of causing the
accident are absent, (positively stated, the person
committed an unlawful act and had the intention of
causing the injury) intentional felony (REYES,
Book One, supra at 260).
7. Incomplete exempting circumstance of
uncontrollable fear If only one of the two
requisites are present there is only a mitigating
circumstance. In People v. Magpantay (C.A., 46
O.G. 1655) the accused was entitled to the
mitigating circumstance of grave fear, not entirely
uncontrollable, under par. 1 of Art. 13 in
connection with par. 16 of Art. 12 of the RPC the
fear of the accused was not entirely uncontrollable
for had he not been so hasty and had he stopped
a few seconds to think, he would have ascertained
that there was no imminent danger.
Par. 2. Over 15 and under 18, if there is
discernment, or over 70 years old
It is the age of the accused at the time of the
commission of the crime which should be
determined. His age at the time of the trial is
immaterial.
Legal effects of various ages of offender
15 and below Exempting
 San Beda College of Law
2010 Centralized Bar Operations
Above 15 but Exempting, unless acted of skill in culpable felonies (REYES, Book One,
under 18 with discernment. But even supra at 273).
with discernment, penalty is 2. Not applicable to felonies where intention is
reduced by one (1) degree immaterial (REYES, Book One, supra at 273);
lower than that imposed 3. Not appreciated in murder qualified by
(RPC, Art 68, par. 2, treachery (People v. Pajenado, G.R. No. L-26458,
amended by R.A. 9344) January 30, 1976); and
Note: In crimes against persons who do not die as
Child in conflict Sentence suspended (RPC, a result of the assault, the absence of intent to kill
with the law Art. 192, R.A. 9344 as reduces the felony to mere physical injuries, but it
under 18 years amended by R.A. 10630) does not constitute a mitigating circumstance
of age who (People v. Galacgac, C.A., 54 O.G. 1207).
acted with 4. Not appreciated in cases where there is no
discernment material harm done.
18 years or over Full criminal responsibility Note: Applicable only to offenses resulting in
70 years or over Mitigating, no imposition of physical injuries or material harm (REYES, Book
death penalty; if already One, supra at 273).
imposed, execution of death
penalty is suspended and Intent at the time of the commission of the felony,
commuted (ESTRADA, not during the planning stage, should be considered
Book One, supra at 121) (People v. Boyles, G.R. No. L-30849, March 29,
1982).
Child in Conflict with the Law
It refers to a child who is alleged as, accused of, or Basis: Diminution of intent.
adjudged as, having committed an offense under
Philippine laws. Par. 4. Provocation or threat

Basis: Diminution of intelligence. Provocation

It is any unjust or improper conduct or act of the
Par. 3. No intention to commit so grave a wrong offended party, capable of exciting, inciting or
(Praeter Intentionem) irritating any one (REYES, Book One, supra at 274).

Rule for the application: Can be taken into Requisites: (SOPI)

account only when the facts proven show that there
is a notable and evident disproportion between the
means employed to execute the criminal act and its
consequences (US v. Reyes, G.R. No. 12635,
September 25, 1917).
If the resulting felony could be expected from the
means employed, this circumstance cannot be
availed of.
Intention may be ascertained by considering:
(WIMB)
1. The weapon used;
2. The injury inflicted;
3. The manner it is inflicted; and
4. The part of the body injured (ESTRADA, Book
One, supra at 122).
Instances When the Rule on Praeter Intentionem
Would NOT be Applicable
1. Not applicable to felonies by negligence
(People v. Medina, C.A., 40 O.G. 4196);
Note: The reason is that in felonies through
negligence, the offender acts without intent. The
intent in intentional felonies is replaced by
negligence, imprudence, lack of foresight or lack
1. The provocation must be sufficient;
Sufficient
It means adequate to excite a person to commit a
wrong and must accordingly be proportionate to
its gravity (People v. Nabora, G.R. No. 48101,
November 22, 1941).
As to whether or not the provocation is sufficient
depends upon:
a. The act constituting the provocation;
b.The social standing of the person provoked; and
c. The place and time when the provocation is
made (REYES, Book One, supra at 274).
2. It must originate from the offended party;
3. The provocation must be personal and directed to
the accused; and
4. That the provocation must be immediate to the
act, or the commission of the crime.
When the aggression is in retaliation for an insult,
injury or threat, the offender cannot successfully
claim self-defense, but at most he can be given
the benefit of mitigating circumstance (US v.
Carrero, G.R. No. 3956, January 10, 1908).

31
The threat should not be offensive and positively
strong. Otherwise, the threat to inflict real injury is
an unlawful aggression, which may give rise to self-
defense (US v. Guysayco, G.R. No. 4912, March 25,
1909).
The liability of the accused is mitigated only insofar
as it concerns the harm inflicted upon the person
who made the provocation, but not with regard to
the other victims who did not participate in the
provocation (US v. Malabanan, G.R. No. 3964,
November 26, 1907).
Basis: Diminution of intelligence and intent.
Provocation as
Provocation as
Requisite of
Mitigating
Incomplete Self-
Circumstance
Defense
It pertains to its It pertains to its
absence on the presence on the part
part of the person of the offended party
defending himself. (People v. CA, G.R.
No. 103613,
February 23, 2001).
Par. 5. Vindication of grave offense
Requisites:
1. That there be a grave offense done to the one
committing the felony, his spouse, ascendants,
descendants, legitimate, natural or adopted
brothers or sisters or relatives by affinity within the
same degrees; and
2. That the felony is committed in immediate
vindication of such grave offense.
Immediate allows for a lapse of time as long as the
offender is still suffering from the mental agony
brought about by the offense to him (ESTRADA,
Book One, supra at 124).
Grave offense includes any act that is offensive to
the offender or his relatives and the same need not
be unlawful (People v. Benito, G.R. No. L-32042,
February 13, 1975).
The grave offense must be the proximate cause or
proximate to the act of the offender.
Factors to determine gravity of offense in
vindication:
1. Social standing of the person;
2. Place; and
3. Time when the insult was made (REYES, Book
One, supra at 283).
Basis: Diminution of the conditions of voluntariness.
Par. 6. Passion or obfuscation
32
Requisites:
1. That there be an act, both unlawful and
sufficient to produce such a condition of mind;
2. That said act which produced the obfuscation
was not far removed from the commission of the
crime by a considerable length of time, during
which the perpetrator might recover his normal
equanimity; and
3. The act causing such obfuscation was
committed by the victim himself (ESTRADA, Book
One, supra at 125).
It is a mitigating circumstance only when the same
arises from lawful sentiments (People v. Bates, G.R.
No. 139907, March 28, 2003).
It may lawfully arise from causes existing only in the
honest belief of the offender (US v Macalintal, G.R.
No. 1331, August 25, 1903).
The act of the offended party must be unlawful or
unjust (US v. Taylor, G.R. No. 2309, April 19, 1906).
Exercise of a right or fulfillment of duty is not a
proper source of passion and obfuscation (People v.
Noynay and Ruiz, G.R. No. 38715, September 15,
1933).
This mitigating circumstance may be appreciated
even if the reported act causing the obfuscation was
not true, as long as it was honestly and reasonably
believed by the accused to be true (People v.
Guhiting, G.R. No. L-2843, May 14, 1951).
There is passion or obfuscation when the crime was
committed due to an uncontrollable burst of passion
provoked by prior unjust or improper acts due to a
legitimate stimulus so powerful as to overcome
reason (People v. Danafrata, G.R. No. 143010,
September 30, 2003).
Passion or obfuscation is not mitigating when the
relations between the parties are illegitimate. The
mitigating circumstance cannot be considered in
favor of an accused when the relationship between
him and the deceased is illicit, because the causes
which mitigate criminal responsibility for the loss of
self-control are such which originate from legitimate
feelings, and not those which arise from vicious,
unworthy and immoral passions (US v. Hicks, G.R.
No. 4871, September 23, 1909).
To be mitigating, it is important to establish an act
that is sufficient to produce a condition of mind to
commit a felony or a crime (ESTRADA, Book One,
supra at 125).
 San Beda College of Law
2010 Centralized Bar Operations
Mitigating physical force.
Not Mitigating when:
circumstance when:
Passion or obfuscation It must come from a
The accused acted The act is committed
is in the offender third person.
upon an impulse. in a spirit of
himself.
lawlessness.
It must arise from It is unlawful.
The impulse must be The act is committed
lawful sentiments
so powerful that it in a spirit of revenge.
naturally produced
Passion and obfuscation cannot co-exist with:
passion or obfuscation
1. Vindication of grave offense;
in him.
2. Evident premeditation;
Passion/Obfuscation Provocation Note: The essence of evident premeditation is
that the execution of the criminal act must be
Produced by an The provocation must preceded by calm thought and reflection upon the
impulse which may be come from the injured resolution to carry out the criminal intent during
caused by provocation party. the space of time sufficient to arrive at a
Offense which Must immediately composed judgement (People v. Pagal, G.R. No.
engenders perturbation precede the L-32040, October 25, 1977).
of mind need not be commission of the 3. Treachery; and
immediate. It is only crime. Note: Passion or obfuscation cannot co-exist with
required that the treachery, for while in the mitigating circumstance
influence thereof lasts of passion or obfuscation the offender loses his
until the moment the reason and self-control, in the aggravating
crime is committed. circumstance of treachery, the mode of attack
The effect is loss of reason and self-control on must be consciously adopted (People v. Wong, 18
the part of the offender. CAR [2s] 934, 940-941).
4. Lack of intention to commit so grave a wrong
If obfuscation and provocation arose from one (People v. Cabel, 5 CAR l2s] 507, 515).
and the same act, both shall be treated as only
one mitigating circumstance. Basis: Diminution of intelligence of intent.

Provocation Vindication Par. 7. Surrender and confession of guilt

It is made directly only The grave offense may
to the person be committed also Two mitigating circumstances:
committing the felony. against the offenders 1. Voluntary surrender to a person in authority or his
relatives mentioned by agents; and
law. 2. Voluntary confession of guilt before the court prior
The cause that The offended party to the presentation of evidence for the
brought about the must have done a prosecution.
provocation need not grave offense to the
be a grave offense. offender or his If both are present, there will be two independent
relatives mentioned by ordinary mitigating circumstances.
law.
It is necessary that the The vindication of the Requisites of voluntary surrender: (NSV)
provocation or threat grave offense may be 1. That the offender had not been actually arrested;
immediately preceded proximate, which 2. That the offender surrendered himself to a person
the act. admits of an interval of in authority or to the latters agent; and
time. 3. That the surrender was voluntary (Estacio v.
It is mere spite against It concerns the honor Sandiganbayan, G.R. No. 75362, March 6, 1990).
the one giving the of a person.
provocation or threat. For voluntary surrender to be appreciated, the same
must be spontaneous in such a manner that it
shows the interest of the accused to surrender
unconditionally to the authorities, either because he
Passion/Obfuscation Irresistible Force acknowledge is guilt or because he wishes to save
them the trouble and expenses necessarily incurred
Mitigating Exempting in his search and capture (People v. Gervacio, G.R.
circumstance circumstance No. L-21965, August 30, 1968).
It cannot give rise to It requires physical
irresistible force as it force. Cases NOT Constituting Voluntary Surrender
does not involve

33
1. The accused surrendered only after warrant of
arrest was served upon him (People v. Roldan,
G.R. No. L-22030, May 28, 1968);
2. Where the accused was actually arrested by his
own admission or that he yielded because of the
warrant of arrest, although the police blotter used
the word surrender (People v. Velez, G.R. No. L-
30038, July 18, 1974);
3. Where the accused only went to the police station
to report that his wife was stabbed by another
person and to seek protection as he feared that
the same assailant would also stab him (People v.
Trigo, G.R. No. 74531, November 30, 1962).
Note: The fact that the order of arrest has already
been issued is no bar in the consideration of the
circumstance because the law does not require that
surrender be prior the arrest (Rivera v. CA, G.R. No.
125867, May 31, 2000).
Person in authority
He is one directly vested with jurisdiction which is
the power to govern and to execute the laws,
whether as an individual or as a member of some
court or governmental corporation, board or
commission (RPC, Art. 152, as amended by RA
1978).
Agent of a person in authority
He is one who by direct provision of the law or by
election or by appointment by competent authority,
is charged with the maintenance of public order and
the protection and security of life and property and
any person who comes to the aid of persons in
authority (Id.).
Instances of Voluntary Surrender:
1. It must be spontaneous.
2. Intent of the accused to submit himself
unconditionally to the authorities must be either
because:
a. He acknowledges his guilt; or
b. He wishes to save them the trouble and
expense necessarily incurred in his search and
capture.
3. The conduct of the accused determines the
spontaneity of the arrest.
4. Intention to surrender without actually
surrendering is not mitigating.
5. Not mitigating when defendant was in fact
arrested.
6. It is not required that, to be appreciated, it be prior
to the issuance of a warrant of arrest (People v.
Turalba, G.R. No. L-29118, February 28, 1974).
7. Surrender of weapons cannot be equated with
voluntary surrender.
Requisites of voluntary plea of guilty: (SOPO)
1. That the offender spontaneously confessed his
guilt;
34
2. That the confession of guilt was made in open
court, that is, before the competent court that is to
try the case;
3. That the confession of guilt was made prior to the
presentation of evidence for the prosecution; and
4. That the confession of guilt was to the offense
charged in the information.
Plea of guilty is not mitigating in culpable felonies
and in crimes punished by special laws (REYES,
Book One, supra at 319).
Where in the original information the accused
pleaded not guilty, but he pleaded guilty to the
amended information, it is considered a voluntary
plea of guilty and considered a mitigating
circumstance (People v. Ortiz, G.R. No. L-19585,
Nov. 29, 1965).
The plea of guilty must be made at the first
opportunity. Thus, plea of guilty in the CFI (now
RTC) in a case appealed from MTC is NOT
mitigating (People v. Herminio, G.R. No. 45466,
June 30, 1937).
Basis: Lesser perversity of the offender.
Par. 8. Physical defect of offender
When the offender is deaf and dumb, blind or
otherwise suffering from some physical defect,
restricting his means of action, defense or
communication with others.
The physical defect must relate to the offense
committed. In other words, the defect or illness must
be a contributing factor to the commission of the
crime. Without such relation, the defect or illness
should not be considered (BOADO, supra at 142),
e.g. blindness does not mitigate estafa.
Dumb - means lacking the power of human
speech.
This paragraph does not distinguish between the
educated and uneducated person with physical
defect.
Basis: Diminution of freedom of action, therefore
diminution of voluntariness.
Par. 9. Illness of the offender
Requisites:
1. That the illness of the offender must diminish the
exercise of his will-power; and
 San Beda College of Law
2010 Centralized Bar Operations
2. That such illness should not deprive the offender
of consciousness of his acts.
Includes illness of the mind not amounting to
insanity (REYES, Book One, supra at 321).
Kleptomania, feeblemindedness, mistaken belief
that killing witches was for public good and illness of
nerves or moral faculty may be considered as
mitigating circumstances under this subparagraph
(REYES, Book One, supra at 321-322).
Basis: Diminution of intelligence and intent.
Par. 10. Similar or Analogous Circumstances
Examples:
1. Impulse of jealousy, similar to passion and
obfuscation (People v. Ubengen, C.A., 36 O.G.
763);
2. Manifestations of Battered Wife Syndrome,
analogous to an illness that diminishes the
exercise of will power (People v. Genosa, G.R.
No. 135981, January 14, 2004);
3. Over 60 years old with failing sight, similar to over
70 years of age under par. 2 (People v. Reantillo
and Ruiz, C.A, G.R. No. 301, July 27, 1938);
4. The act of the accused leading the law enforcers
to the place where he buried the instruments he
used to commit the crime is similar to voluntary
surrender;
5. Extreme poverty, as similar to a state of necessity,
which may apply to crimes against property but
not of violence, such as murder (People v.
Agustin, G.R. No. L-18368, March 31, 1966);
6. Outraged feeling of unpaid creditor, as akin to
vindication or obfuscation (People v. Merenillo,
C.A., 36 O.G. 2283);
7. Appeal to the esprit de corps of the accused, as
analogous to passion;
8. Wartime state of confusion resulting in illegal
possession of firearm after the liberation, as being
similar to lack of intent to commit so grave a
wrong;
9. Voluntary return of funds malversed by the
accused, as equivalent to voluntary surrender;
and
10.Testifying for the prosecution without being
discharged from the information, as being like a
plea of guilty.
Circumstances which are neither exempting nor
mitigating:
1. Mistake in the blow or aberratio ictus;
2. Mistake in the identity;
3. Entrapment;
4. Accused is over 18 years of age; and
5. Performance of righteous action (REYES, Book
One, supra at 327).
35
Specific Mitigating Circumstances
1. Illegal detention (voluntary release within 3 days;
without attaining purpose; before criminal action);
2. Adultery (abandonment of spouse); and
3. Infanticide/abortion (intent to conceal dishonor of
mother).
Aggravating Circumstances
CHAPTER FOUR
CIRCUMSTANCES WHICH AGGRAVATE
CRIMINAL LIABILITY
Those which, if attendant in the commission of the
crime, serve to have the penalty imposed in its
maximum period provided by law for the offense or
change the nature of the crime (ESTRADA, Book
One, supra at 133).
Basis: Greater perversity of the offender manifested
in the commission of the felony as shown by:
1. The motivating power itself;
2. The place of the commission;
3. The means and ways employed;
4. The time; or
5. The personal circumstances of the offender, or the
offended party (REYES, Book One at 328).
Kinds of aggravating circumstances:
1. Generic those that can generally apply to all
crimes found under subparagraphs 1, 2, 3
(dwelling), 4, 5, 6, 9, 10, 14, 18, 19, 20 except by
means of motor vehicle: (CAD-PRAN-HUCBU)
a.Contempt or insult of public authority
b.Taking Advantage taken of public position;
c.Crime committed in the Dwelling of the offended
party;
d.Palace and place of commission of offense;
e.Recidivism;
f. Abuse of confidence or obvious ungratefulness;
g.Nighttime, uninhabited place, or band;
h.Habituality;
i. Unlawful entry;
j. Craft, fraud, or disguise;
k.Breaking of parts of the house; and
l. Use of persons under 15 years of age (Id. at
133).
2. Specific those which apply only to specific
crimes, such as ignominy in crimes against
chastity and cruelty and treachery which are
applicable only to crimes against persons found
under subparagraphs 3 (except dwelling), 15, 16,
17 and 21: (RATIC)
a.Disregard of Rank, age, or sex due the offended
party in crimes against persons and honor;
b.Abuse of superior strength or means be
employed to weaken the defense;
c.Treachery in crimes against persons;
 d.Ignominy in crimes against chastity; and
e.Cruelty in crimes against persons (Id. at 133-
134).
3.Qualifying those that change the nature of the
crime:
a. Alevosia (treachery) or evident premeditation
qualifies the killing of a person to murder; and
b. Art. 248 enumerates the qualifying aggravating
circumstances which qualify the killing of a
person to murder.
4. Inherent those which of necessity accompany
the commission of the crime, therefore not
considered in increasing the penalty to be
imposed, such as:
a.Evident premeditation in concubinage, robbery,
adultery, theft, estafa (CRATE);
b.Abuse of public office in bribery;
c.Breaking of a wall or unlawful entry into a house
in robbery with the use of force upon things;
d.Fraud in estafa;
e.Deceit in simple seduction;
f. Ignominy in rape (Id. at 134).
5. Special those which arise under special
conditions to increase the penalty of the offense
and cannot be offset by mitigating circumstances,
such as: (CUTE-Q)
a.Complex crimes (RPC, Art.48);
b.Use of unlicensed firearm in homicide or
murder;
c.Taking advantage of public position and
membership in an organized/syndicated crime
group (RPC, Art. 62, Par. 1[a]);
d.Error in personae (RPC, Art.49); and
e.Quasi-recidivism (RPC, Art.160).
Generic Aggravating Qualifying
Aggravating
As to its effect
Increases the penalty Gives the crime its
which should be proper and exclusive
imposed upon the name and places the
accused to the author thereof in such
maximum period but a situation as to
without exceeding the deserve no other
limit prescribed by law penalty than that
specially prescribed by
law for said crime
As to whether it can be offset by a mitigating
circumstance
May be offset by an Cannot be offset by a
ordinary mitigating mitigating
circumstance since it circumstance since it is
is not an ingredient of considered an
the crime ingredient of the crime
Rules on aggravating circumstances
1. Aggravating circumstances shall not be
appreciated if:
36
a. They constitute a crime specially punishable by
law; or
b.They are included by the law in defining a crime
and prescribing a penalty therefore (Id. at 135).
Example: That the crime be committed by means
of fire, explosion (RPC, Art. 14, par. 12) is in itself
a crime of arson (RPC, Art. 321).
2. The same rule shall apply with respect to any
aggravating circumstance inherent in the crime to
such a degree that it must of necessity
accompany the commission thereof (RPC, Art. 62,
par. 2).
Example: Evident premeditation is inherent in
theft, robbery, estafa, adultery and concubinage.
3. Aggravating circumstances which arise:
a. From the moral attributes of the offender;
b. From his private relations with the offended
party; or
c. From any personal cause, shall only serve to
aggravate the liability of the principals,
accomplices and accessories as to whom such
circumstances are attendant (RPC, Art. 62, par.
3) even if there was conspiracy (Id at 136).
4. The circumstances which consist:
a. In the material execution of the act, or
b.In the means employed to accomplish it, shall
serve to aggravate the liability of those persons
only who had knowledge of them at the time of
the execution of the act or their cooperation
therein (Id.).
Exception: When there is proof of conspiracy in
which case the act of one is deemed to be the
act of all, regardless of lack of knowledge of the
facts constituting the circumstance (RPC, Art.
62, par. 4).
5. Aggravating circumstances, regardless of its kind,
should be specifically alleged in the information
AND proved as fully as the crime itself in order to
increase the penalty (RULES OF COURT, Rule
110, Sec. 9). Such circumstances are not
presumed (People v. Legaspi, G.R. Nos. 136164-
65, April 20, 2001).
6. When there is more than one qualifying
aggravating circumstance present, one of them
will be appreciated as qualifying aggravating while
the others will be considered as generic
aggravating.
ARTICLE 14
AGGRAVATING CIRCUMSTANCES
 San Beda College of Law
2010 Centralized Bar Operations
Par. 1. That advantage be taken by the offender
of his public position.
Basis: Greater perversity of the offender as shown:
1. By the means of personal circumstance of the
offender; or
2. By the means used to secure the commission of
the crime.
Applicable only when the offender is a public officer.
As a means by which he realizes his purpose, the
public officer must use: (IPA)
1. Influence;
2. Prestige; or
3. Ascendancy (REYES, Book One, supra at 336).
It cannot be taken into consideration in offenses
where taking advantage of official position is an
integral element of a crime (ESTRADA, Book One,
supra at 138), e.g. malversation under Art. 217.
There must be deliberate intent to use the IPA thus
when coupled with circumstances where intent is
lacking (i.e., the crime was attendant of negligence,
passion or obfuscation, vindication, or sufficient
provocation) this aggravating circumstance cannot
be appreciated.
It 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 (RPC, Arts. 204-
245).
Par. 2. That the crime be committed in contempt
of or with insult to the public authorities.
Basis: Greater perversity of the offender as shown
by his lack of respect for the public authorities.
Requisites: (ExNoKP)
1. That the public authority is engaged in the
exercise of his functions;
2. That the public authority is not the person against
whom the crime is committed;
3. The offender knows him to be a public authority;
and
4. His presence has not prevented the offender from
committing the criminal act (REYES, Book One,
supra at 340).
Teachers or professors of a public or recognized
private school and lawyers are not public authority
within the contemplation of this paragraph
(ESTRADA, Book One, supra at 139).
Par 2 of Art. 14 does not apply when crime is
committed in the presence of an agent of a person
in authority only.
37
Knowledge that a public authority is present is
essential. Lack of such knowledge indicates lack of
intention to insult the public authority (REYES, Book
One, supra at 342).
If the crime committed is against the public authority
while in the performance of his duty, the offender
commits direct assault without this aggravating
circumstance.
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.
Basis: Greater perversity of the offender as shown
by:
1. Personal circumstances of the offended party; and
2. The place of the commission of the crime.
Definitions:
The designation or title of
distinction used to fix the
Rank of the
relative position of the
offended party
offended party in reference
to others
Age of the May refer to old age or the
offended party tender age of the victim
Sex of the Refers to the female sex,
offended party not to the male sex
(ESTRADA, Book One, supra at 141)
The four circumstances enumerated can be
considered singly or together.
If all the four circumstances are present, they have
the weight of one aggravating circumstance only
(REYES, Book One, supra at 342).
Disregard of rank, age or sex is essentially
applicable only to crimes against person or honor
and has common denominator which is the respect
due to the offended party (Id. at 343). Thus, it is not
proper to consider this aggravating circumstance in
crimes against property. Robbery with Homicide is
primarily a crime against property and not against
persons. Homicide is a mere incident of robbery, the
latter being the main purpose and object of the
criminal (People v. Pagal, G.R No. L- 32040,
October 25, 1977).
Offender must deliberately offend the rank, age or
sex of the offended party (People v. Mangsant, G.R.
No. 45704, May 25, 1938).

There must be a difference in the social condition of
the offender and the offended party (REYES, Book
One, supra at 344).
The aggravating circumstance of disregard of
rank, age, or sex is NOT applicable in the
following cases:
1. When the offender acted with passion and
obfuscation (People v. Ibaes, C.A.- G.R. No.
1137-R, March 20, 1948);
2. When there exists a relationship between the
offended party and the offender (People v.
Valencia, C.A. 43 O.G. 3740); and
3. When the condition of being a woman is
indispensable in the commission of the crime (e.g.
abduction, seduction and rape) (People v. Lopez,
G.R. No. L-14347, April 29, 1960).
Dwelling
It must be a building or structure, exclusively used
for rest and comfort. A combination of a house and
a store or a market stall where the victim slept is
not a dwelling (People v. Magnaye, G.R. No. L-
3510, May 30, 1951).
Dwelling includes dependencies, the foot of the
staircase and enclosure under the house (US v.
Tapan, G.R. No. 6504 September 11, 1911; People
v. Alcala, G.R. No. 18988, December 29, 1922).
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 (People v. Parazo, G.R. No. 121176, May
14, 1997).
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 abode, although the assailant might
have devised means to perpetrate the assault from
the outside (People v. Bagsit, G.R. No. 148877
,August 19, 2003).
Even if the killing took place outside the dwelling, it
is aggravating provided that the commission of the
crime began in the dwelling.
In People v. Balansi (G.R. No. 77284, July 19,
1990), it was held that the victim need not be the
owner or occupant of the dwelling where he was
shot.
38
Dwelling is not included in the qualifying
circumstance of treachery (People v. Catapang,
G.R. No. 128126, June 25, 2001).
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.
Dwelling was found aggravating in the following
cases although the crime was committed NOT in
the dwelling of the victims:
1. The victim was raped in the boarding house where
she was a bedspacer (People v. Daniel, G.R. No.
L-40330, November 20, 1978);
2. The victims were raped in paternal home where
they were guests at that time (REYES, Book One,
supra at 355);
Note: In People v. Ramolete, (G.R. No. L-28108,
Marc 27, 1974), dwelling was not considered
aggravating because the victim was a mere visitor
in the house where he was killed.
3. The victims, while sleeping as guests in the house
of another person, were shot to death (People v.
Basa, G.R. No. L-2014, May 18, 1949).
Note: The Code speaks of dwelling NOT domicile
(People v. Parazo, G.R. No. 121176, May 14, 1997).
A condition sine qua non of this circumstance is that
the offended party has not given provocation to the
offender (People v. Ambis, G.R. No.
46298,September 30, 1939).
Meaning of provocation in the aggravating
circumstance of dwelling:
The provocation must be: (GSI)
1.Given by the owner of the dwelling;
2.Sufficient; and
3.Immediate to the commission of the crime.
If all these conditions are present, it is not an
aggravating circumstance.
The provocation must also have a close relation to
the commission of the crime in the dwelling (People
v. Dequia, G.R. No. 41040, August 9, 1934).
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
(People v. Ambis, G.R. No. 46298,September 30,
1939).
Dwelling is NOT aggravating in the following
cases:
 San Beda College of Law
2010 Centralized Bar Operations
1. When both the offender and the offended party
are occupants of the same house (People v.
Caliso, G.R. No. 37271, July 1, 1933);
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 (US v. Ibaez, G.R. No. 10672,
October 26, 1915).
2. When robbery is committed by the use of force
upon things, dwelling is not aggravating because it
is inherent (US v. Cas, G.R. No. 5071, August 18,
1909);
But 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 (People v. Cabato,
G.R. No. L-37400, April 12, 1988).
Dwelling is not inherent, hence aggravating, in
Robbery with Homicide since the author thereof
could have accomplished his heinous deed
without having to violate the domicile of the victim
(People v. Mesias, G.R. No. 67823, July 9, 1991).
3. In the crime of trespass to dwelling, it is inherent
or included by law in defining the crime (REYES,
Book One, supra at 355);
4. When the owner of the dwelling gave sufficient
and immediate provocation (Id.); and
5. The victim is not a dweller of the house (Id.).
Par. 4.That the act be committed with
1. Abuse of confidence; or
2. Obvious ungratefulness.
Basis: Greater perversity of the offender as shown
by the means and ways employed (Id.).
Par. 4 provides two aggravating circumstances
which, if present in the same case must be
independently appreciated.
Requisites of abuse of confidence: (TAF)
1. That the offended party had trusted the offender;
2. That the offender abused such trust by committing
a crime against the offended party; and
3. That the abuse of confidence facilitated the
commission of the crime (People v. Luchico, G.R.
No. 26170, December 6, 1926).
Illustration: After preliminary advances of the
master, the female servant refused and fled. The
master followed and after catching up with her,
threw her to the ground and committed the crime of
rape. When the master raped the offended party,
she had already lost her confidence in him from the
39
moment he made the indecent proposal and
offended her with a kiss. Held: The confidence must
facilitate the commission of the crime, the culprit
taking advantage of the offended partys belief that
the former would not abuse said confidence (Id.).
The confidence between the offender and the
offended party must be immediate and personal
(People v. Arojado, G.R. No. 130492, January 21,
2001).
It is not a mere betrayal of trust, since the offended
party must be the one who actually reposed his
confidence in the offender.
Note: Abuse of confidence is inherent in: (STEM)
1. Qualified seduction (RPC, Art. 337).
2. Qualified theft (RPC, Art. 310);
3. Estafa by conversion or misappropriation (RPC,
Art. 315); and
4. Malversation (RPC, Art. 217);
Requisites of obvious ungratefulness: (TAOU)
1. That the offended party had trusted the offender;
2. That the offender abused such trust by committing
a crime against the offended party; and
3. That the act be committed with obvious
ungratefulness.
The ungratefulness contemplated by par. 4 must be
such obvious, clear and manifest ingratitude on the
part of the accused (ESTRADA, Book One, supra at
145).
When Obvious Ungratefulness is Present:
1. When the accused killed his father-in-law in
whose house he lived and who partially supported
him (People v. Floresca, G.R. Nos. L-8614-15,
May 31, 1956);
2. When the victim was suddenly attacked while in
the act of giving the assailants their bread and
coffee for breakfast (People v. Bautista, G.R No.
L-38624, July 25, 1975); and
3. When the accused was living in the house of the
victim who employed him as an overseer and in
charge of carpentry work, and had free access to
the house of the victim who was very kind to him,
his family, and who helped him solve his problems
(People v. Lupango, G.R. No. L-32633, November
12, 1981).
Par. 5.That the crime be committed:
1. In the palace of the Chief Executive;
2. In his presence;
3. Where public authorities are engaged in the
discharge of their duties; or
4. In a place dedicated to religious worship.
Basis: Greater perversity of the offender as shown
by the place of the commission of the crime, which
must be respected (REYES, Book One, supra at Basis: The time and place of the commission of the
361). crime and means and ways employed (REYES,
Book One, supra at 363).
Must be dedicated to public religious worship;
private chapels not included. There are three aggravating circumstances in this
paragraph.
There must be intention to desecrate the place
dedicated to public religious worship and hold said When present in the same case and their element
worship regularly in said place (People v. Jaurigue, are distinctly palpable and can subsist
G.R. No. CA. No. 384, February 21, 1946). independently, they shall be considered separately
(People v. Santos, G.R. No. L-4189, May 21, 1952).
The President or Chief Executive need not be in the
Palace to aggravate the liability of the offender Not applicable when the mitigating circumstances of
under no. 2 above. As long as he was present, and passion or obfuscation or sufficient provocation are
his presence is known to the accused when he did present in the commission of the crime.
the crime, there is aggravating circumstance
(REYES, Book One, supra at 361). When nighttime, uninhabited place or band
aggravating:
Except for the third which requires that official 1. When it facilitated the commission of the crime
functions are being performed at the time of the (objective);
commission of the crime, the other places 2. When especially sought for by the offender to
mentioned are aggravating per se even if no official insure the commission of the crime or for the
duties or acts of religious worship are being purpose of impunity (subjective); or
conducted there. 3. When the offender took advantage thereof for the
purpose of impunity (subjective).
Cemeteries are not considered as place dedicated
to the worship of God (Id. at 362). That period of
darkness beginning at
Offender must have intention to commit a crime end of dusk and
Nighttime
when he entered the place (People v. Jaurigue, G.R. ending at dawn.
(obscuridad)
No. CA. No. 384, February 21, 1946). Nights are from
sunset to sunrise
An electoral precinct or polling place during election (CIVIL CODE, Art. 13)
day is a place where public authorities are engaged One where there are
in the discharge of their duties (People v. Canoy, no houses at all; a
G.R. No. L- 6037, September 30, 1954). place at a
considerable distance
Par. 5. Where Public Uninhabited place from town, or where
Authorities are Par. 2. Contempt or (despoblado) the houses are
Engaged in the Insult to Public scattered at a great
Discharge of their Authorities distance from each
Duties other (REYES, Book
Public authorities are in the performance of their One, supra at 369)
duties. Whenever more than
Place where public duty is performed three (i.e. at least four
In their office Outside of their office (4)) armed
malefactors shall
The offended party Band (en cuadrilla) have acted together in
May or may not be the Public authority should the commission of an
public authority not be the offended offense, it shall be
party. deemed committed by
a band (Id. at 372).
Par. 6.That the crime be committed
1. In the nighttime; 1. Nighttime
2. In an uninhabited place; or It is necessary that the commission of the crime
3. By a band, whenever such circumstance may began and was completed at nighttime (US v.
facilitate the commission of the offense. Dowdell, G.R. No. 4191, July 28, 1908).

When the place of the crime is illuminated by light,

nighttime is not aggravating (People v. Moral, G.R

40
 San Beda College of Law
2010 Centralized Bar Operations
No. L- 31139, October 12, 1989). llumination may
come from moon, torch, or gasera. HOWEVER, in
People v. Berbal, et.al. (G. R. No. 71527, August
10, 1989), the Court held that the fact that
matchstick was used does not negate the
presence of this aggravating circumstance. Also,
in People v. Soriano (G.R. No. L- 32244, June 24,
1983), the Court rejected the contention that
nocturnity cannot be appreciated because the
flashlights were used.
It cannot be applied to cases involving an
accidental meeting, a chance encounter or spurs
of the moment.
The circumstance of nocturnity, although not
specially sought for, shall aggravate criminal
liability if it facilitated the commission of the
offense or the offender took advantage of the
same to commit the crime (People v. Luchico, No.
26170, December 6, 1926).
It is not considered as an aggravating
circumstance when the crime began at daytime.
The commission of the crime should begin and
end at nighttime (People v. Luchico, supra).
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. In People v. Berdida (G.R. No. L-
20183. June 30, 1966), the Supreme Court ruled
that inasmuch as the treachery consisted in the
fact that the victims' hands were tied at the time
they were beaten, the circumstance of nighttime is
not absorbed in treachery, but can be perceived
distinctly therefrom, since the treachery rests upon
an independent factual basis. A special case
therefore is present to which the rule that
nighttime is absorbed in treachery does not
apply.
2. Uninhabited Place
The determining factor for the existence of this
circumstance is the reasonable possibility of the
victim receiving or securing aid from third persons
(REYES, Book One, supra at 369).
This should not be considered when the place
where the crime was committed could be seen
and the voice of the deceased could be heard
from a nearby house (People v. Santos, G.R. No.
L- 38512, November 16, 1979).
It must appear that the solitude of the place where
the crime was committed was sought in order to
better attain the purpose (No. 26170, December
6, 1926). It cannot be applied in cases of chance
41
encounters (People v. Arpa, G.R. No. L-26789,
April 25, 1969).
3. Band
The four (4) armed persons contemplated in this
circumstance must all be principals by direct
participation who acted together in the execution
of the acts constituting the crime (RPC, Art. 17). In
this case, conspiracy is presumed.
If conspiracy is proved, this aggravating
circumstance of cuadrilla can still be appreciated
because conspicary is not an aggravating
circumstance, but a means to commit a crime.
THUS, one cannot absorb the other (BOADO,
supra at 162).
If one of them was a principal by inducement, the
aggravating circumstance of having acted with the
aid of armed men may be considered.
It absorbs the aggravating circumstances of abuse
of superior strength and use of firearms (except
when the firearm has no license or there is a lack
of license to carry the firearm) if they are present
in the commission of the crime (People v.
Escabarte, G.R. No. 42964, March 14, 1988).
This aggravating circumstance is not applicable in
crimes against chastity, but is considered in
crimes against property, crimes against persons,
illegal detention, and treason (People v. Corpus,
C.A. 43 O.G. 2249; People v. Laoto, G.R. No.
29530, December 8, 1908).
This aggravating circumstance is inherent in
brigandage (REYES, Book One, supra at 374).
Arm may even refer to stone (People v. Manlolo,
G.R. No. 40778, January 26, 1989).
When the armed men met up casually with others,
and a crime was thereafter committed, it cannot
be considered as an aggravating circumstance.
.
Art. 14, Par. 6 By Art. 295 and 296:
a Band Robbery
Generic Aggravating Applies only to
Circumstance ROBBERY with
unnecessary
violence or physical
injuries under Art.
263, par. 2, 3 and 4
in relation to Art.
294, par. 3, 4 and 5.
If the classes of robbery mentioned in Art. 294 (1)
and (2) are perpetrated by a band, they would not
be punishable under Art. 295, but then cuadrilla
 would be a generic aggravating circumstance crime acted under the same plan and for the same
under Art. 14. purpose (Id. at 377).

Par. 7. That the crime be committed on the Par. 8. With the

occasion of a conflagration, shipwreck, Par. 6 By a Band
Aid of Armed Men
earthquake, epidemic or other calamity or
As to their number
misfortune.
Requires more than At least two (2)
three (3) armed
Basis: The time of the commission of the crime
malefactors (i.e., at
(REYES, Book One, supra at 374).
least four)
Reason for the aggravation: In the midst of a great As to their action
calamity, the offender, instead of lending aid to the Requires that more This circumstance is
afflicted, adds to their suffering by taking advantage than three (3) armed present even if one
of their misfortune to despoil them. It is necessary malefactors shall (1) of the offenders
that the offender took advantage of the calamity or have acted together merely relied on their
misfortune (ESTRADA, Book One, supra at 149). in the commission of aid, for actual aid is
an offense. not necessary.
Other calamity or misfortune As to their liability
It refers to other conditions of distress similar to Band members are Armed men are
those preceding in the enumeration (People v. all principals. mere accomplices.
Corpus, C.A., 43 O.G. 2249).
Mere moral or psychological aid or reliance is
There should be deliberate intent to take advantage sufficient to constitute this aggravating
of this circumstance. It is inapplicable to cases circumstance.
attendant of negligence or carelessness, passion or
obfuscation and chance encounters If there are four armed men, aid of armed men is
absorbed in employment of a band (Id.).
Par. 8.That the crime be committed with the aid
of: Aid of armed men includes armed women
1. Armed men; or (People v. Licop, G.R. No. L-6061, April 29, 1954).
2. Persons who insure or afford impunity.
Persons who insure or afford impunity must have or
Basis: means and ways of committing the crime be in a position to afford impunity, e.g. a judge.

Requisites: Par. 9. That the accused is a recidivist

1. That armed men or persons took part in the
commission of the crime, directly or indirectly; and
2. That the accused availed himself of their aid or
relied upon them when the crime was committed
(REYES, Book One, supra at 376).
Armed Men
These are persons equipped with a weapon (Blacks
Law Dictionary).
This requires that the armed men are accomplices
who take part in that 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 by a band.
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
(reincidencia)
Basis: Greater perversity of the offender, as shown
by his inclination to crimes
Recidivist
He is 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 (People v. Lagarto, G.R. No. 65833,
May 6, 1991).
Note: A recidivist is entitled to the benefits of the
Indeterminate Sentence Law but is disqualified from
availing credit of his preventive imprisonment.
Requisites: (TC2S)
1. That the offender is on trial for an offense;
2. That he was previously convicted by final
judgment of another crime;
3. That the offender is convicted of the new offense;
and
4. That both the first and the second offenses are
embraced in the same title of the Code.

42
 San Beda College of Law
2010 Centralized Bar Operations
Par. 10. That the offender has been previously
Meaning of at the time of his trial for one crime punished
1. It is employed in its general sense. 1. For an offense to which the law attaches an
2.It is meant to include everything that is done in the equal or greater penalty; or
course of the trial, from arraignment until after 2. For two or more crimes to which it attaches a
sentence is announced by the judge in open court lighter penalty.
(REYES, Book One, supra at 379).
3.In recidivism, it is sufficient that the succeeding Basis: Greater perversity of the offender as shown
offense be committed after the commission of the by his inclination to crimes
preceding offense provided that at the time of his
trial for the second offense, the accused had Requisites of reiteracion or habituality:(TPC)
already been convicted of the first offense (Id.). 1. That the accused is on trial for an offense;
4.If both offenses were committed on the same 2. That he was previously served sentence for
date, they shall be considered as only one, hence, another offense to which the law attaches (not the
they cannot be separately counted in order to penalty actually imposed):
constitute recidivism. Also, judgments of a. Equal or greater penalty, or
conviction handed down on the same day shall be b. For two or more crimes to which it attaches a
considered as only one conviction (Galang v. lighter penalty than that for the new offense; and
People, G.R. No. L-45698, December 18, 1937). 3. That he is convicted of the new offense.
5. To prove recidivism, it is necessary to allege the
same in the information and to attach thereto If the second offense or crime is punishable under a
certified copy of the sentences rendered against special law, it cannot be considered under
the accused (ESTRADA, Book One, supra at reiteracion because Arts. 13, 14 and 15 of the RPC
151). are not applicable to special law crimes.
6. Recidivism must be taken into account no matter
how many years have intervened between the first Reiteracion Recidivism
and second felonies (People v. Jaranilla, G.R. No.
As to the first offense
L-28547, February 22, 1974).
It is necessary that the It is enough that a final
7. Even if the accused was granted a pardon for the
offender shall have judgment has been
first offense, but he commits another felony
served out his rendered in the first
embraced in the same title of the Code, the first
sentence for the first offense.
conviction is still counted to make him a recidivist,
offense.
since pardon does not obliterate the fact of his
As to the kind of offenses involved
prior conviction (US v. Sotelo, G.R. No. 9791,
October 3, 1914; People v. Lacao, Sr., G.R. No. The previous and Requires that the
95320, September 4, 1991). subsequent offenses offenses be included
8. An example of a recidivist is when the accused must not be embraced in the same title of the
was convicted previously of homicide and is now in the same title of the Code.
convicted of the crime of rape. Both are under Code.
Title Eight of Book Two of the RPC, Crimes As to frequency
against persons. Not always an Always to be taken
9. R.A. 8353 also known as Anti-Rape Law of 1997 aggravating into consideration in
reclassified rape as Crime against persons. circumstance fixing the penalty to be
imposed upon the
accused.
When the accused is granted:
Pardon Amnesty Four forms of repetition
Even if the accused In the case of Where a person, on
was granted a amnesty which separate occasions, is
pardon for the first theoretically Recidivism (par.
convicted of two
offense, the first considers the 9,Art. 14) Generic
offenses embraced in
conviction is still previous Aggravating
the same title in the
counted to make him transgressions as Circumstance
RPC.
a recidivist since not punishable. Where the offender has
pardon does not According to Art. 89, Reiteracion or been previously
obliterate the fact of amnesty Habituality(par. 10, punished for an offense
his prior conviction. extinguishes the Art. 14) Generic to which the law
penalty and all its Aggravating attaches an equal or
effects. Circustance greater penalty or for
two crimes to which it

43
 attaches a lighter
penalty. Whose liability is aggravated:
Where a person within If Alleged as a If Alleged as
a period of ten (10) General Qualifying
years from the date of Circumstance Circumstance
Multi-recidivism or his release or last Only the liability of Both the liability of
Habitual conviction of the the receiver is the giver and the
delinquency (Art. crimes of serious or affected. receiver are affected.
62, par, 5) less serious physical
Extraordinary injuries, robbery, theft, There must be two or more principals, the one who
Aggravating estafa or falsification, is gave or offered the price or promise and the one
Circumstance found guilty of the said who accepted it, both of whom are principals.
crimes a third time or If without previous promise it was given voluntarily
oftener. after the crime had been committed, it should not be
Where a person taken into consideration for the purpose of
commits felony before increasing the penalty (US v. Flores, G.R. No. 9008,
Quasi-recidivism
beginning to serve or September 17, 1914).
(Art. 160) Special
while serving sentence
Aggravating
on a previous The price, reward or promise need not consist of or
Circumstance
conviction for a felony. refer to material things or that the same were
actually delivered.
Since reiteracion provides that the accused has duly
served the sentence for his previous conviction/s, or It is sufficient that the offer made by the principal by
is legally considered to have done so, quasi- inducement be accepted by the principal by direct
recidivism cannot at the same time constitute participation before the commission of the offense
reiteracion, Hence this aggravating circumstance (REYES, Book One, supra at 385).
cannot apply to a quasi-recidivist.
Par. 12. That the crime be committed by means
If the same set of facts constitutes recidivism and of (FIPE-SAD)
reiteracion, the liability of the accused should be 1. Fire;
aggravated by recidivism which can easily be 2. Inundation;
proven. 3. Poison;
4. Explosion;
Illustration: Suppose the accused already served a 5. Stranding of a vessel or intentional damage
sentence for the crime of Ill treatment by Deed in thereto;
1965, which falls under Title VIII (Art 266), and once 6. By the use of any other artifice involving great
again being tried for the crime of Homicide in 1978, waste and ruin; or
then there is recidivism because the first and the 7. Derailment of a locomotive.
second offenses are embraced in the same title of
the Code. Although the law requires only final Basis: Means and ways employed
judgement in recidivism, even if the convict has
already served sentence for one offense, there is Inundation
still recidivism, provided that the first and second It refers to the use of water or causing the water to
offenses are embraced in the same title of the Code flood in the commission of the offense.
(People v. Real, G.R. No. 93436, March 24, 1995).
When another aggravating circumstance already
The court must exercise its discretion in applying qualifies the crime, any of these aggravating
this aggravating circumstance in favor of the circumstances shall be considered as generic
accused. aggravating circumstance only (REYES, Book One,
supra at 387).
Par. 11. That the crime be committed in
consideration of a price, reward or promise. When there is no actual design to kill a person in
burning a house, it is plain arson even if a person is
Basis: Greater perversity of the offender, as shown killed. Had there been an intent to kill, the crime
by the motivating power itself committed is murder, qualified by circumstance that
the crime was committed by means of fire (See
To consider this circumstance, the price, reward or RPC, Art. 248).
promise must be the primary reason or primordial
motive for the commission of the crime (ESTRADA, Fire, explosion, and derailment of locomotive
Book One, supra at 156). may be part of the definition of a particular crime,

44
 San Beda College of Law
2010 Centralized Bar Operations
such as, arson, crime involving destruction, and resolution of his will (People v. Lagarto, G.R. No.
damages and obstruction to means of 65883, May 6, 1991).
communication. In these cases, they do not serve to
increase the penalty (REYES, Book One, supra at Essence: The execution of the criminal act is
389). preceded by cool thought and reflection upon the
resolution to carry out the criminal intent within a
A killing committed through any of these qualifies space of time sufficient to arrive at a calm judgment
the crime to murder, except if arson was resorted to (People v. Abadies, GR No. 135975, August 14,
2002).
but without intent to kill, in view of P.D. 1613 which
There must be sufficient time between the outward
provides a specific penalty for that situation. acts and the actual commission of the crime.
Par. 7 On the
Par. 12 By Means
Occasion of a Evident premeditation is presumed to exist when
of Inundation, Fire,
Conflagration, conspiracy is directly established (People v.
etc.
Shipwreck, etc. Sapigao, et. al., GR No. 144975, June 18, 2003).
The crime is The crime is
committed by means committed on the Premeditation is absorbed by reward or promise but
of any such acts occasion of a only insofar as the inducer is concerned since he
involving great waste calamity or obviously reflected thereon in planning the crime but
or ruin. misfortune. not the person induced since one can be a principal
by direct participation without the benefit of due
Rules as to the use of fire: reflection (US v. Manalinde, G.R. No. 5292 ,August
Act of the Accused Crime Committed 28, 1909).
Intent was only to Simple arson but
burn but somebody with a specific In order for evident premeditation to exist, the
died penalty (Art.326) person premeditated against must be the same
If fire was used as a Murder victim of the crime. It is not necessary that the victim
means to kill is identified. It is sufficient that the victim is
If fire was used to Separate crimes of determined so long as he belongs to a group or
conceal the killing arson and murder/ class that may be premeditated against (US v.
homicide Manalinde, supra; ORTEGA, supra).

Under R.A. 8294, Sec. 3, "When a person commits
any of the crimes defined in the Revised Penal Code
or special laws with the use of the aforementioned
explosives, detonation agents or incendiary devices,
which results in the death of any person or persons,
the use of such explosives, detonation agents or
incendiary devices shall be considered as an
aggravating circumstance.
Par. 13. That the act be committed with evident
premeditation
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 (REYES, Book One, supra at
402).
Evident premeditation, while inherent in robbery,
may be aggravating in robbery with homicide if the
premeditation included the killing of the victim
(ESTRADA, Book One, supra at 157).

Basis: Reference to the ways of committing the
crime because evident premeditation implies a
deliberate planning of the act before executing it.
Requisites:
The prosecution must prove: (TADS)
1. The time when the offender determined to commit
the crime;
2. An act manifestly indicating that the culprit has
clung to his determination;
3. The date and time when the crime was
committed, to compute the lapse of time; and
4. A sufficient lapse of time between the
determination and execution of the crime, to allow
him to reflect upon the consequences of his act
and to allow his conscience to overcome the
It is a general rule that evident premeditation is not
applicable in error in personae or aberratio ictus,
except if there was a general plan to kill anyone to
commit the crime premeditated (People v. Mabug-at,
G.R. No. 25459, August 10, 1926).
Evident premeditation is compatible with the
mitigating circumstance of immediate vindication of
a relative for a grave offense.
Par. 14 That (CFD)
1. Craft;
2. Fraud; or
3. Disguise be employed

45
There are three aggravating circumstances under There are two aggravating circumstances under this
this paragraph. paragraph.

Basis: Means employed in the commission of the Basis: Means employed in the commission of the
crime crime.

Involves the use of Par. 15 enunciates two aggravating circumstances

intellectual trickery or either of which qualifies a killing to murder.
cunning on the part of the
Craft(astucia) accused to aid in the To deliberately use
execution of his criminal excessive force that is out of
design (REYES, Book One, Advantage be proportion to the means for
supra at 404) taken of self-defense available to the
Insidious words or superior person attacked (People v.
machinations used to strength Lobrigas, et. al., GR No.
induce the victim to act in a 147649, December 17,
Fraud (fraude)
manner which would enable 2002).
the offender to carry out his Means be The offender employs
design (Id. at 405) employed to means that materially
Disguise Resorting to any device to weaken weakens the resisting power
(disfraz) conceal identity (Id. at 408) defense of the offended party.

Fraud Craft No advantage of superior strength in the

Where there is a direct The act of the
inducement by accused done in order
insidious words or not to arouse the
machinations, fraud is suspicion of the victim
present. constitutes craft.
This is characterized by the intellectual or
mental rather than the physical means to which
the criminal resorts to carry out his design.
Fraud
According to Justice Regalado, the fine distinctions
between craft and fraud would not really be strength (ESTRADA, Book One, supra at 160).
called for as these terms in Art. 14 are variants of
means employed to deceive the victim and if all are
present in the same case, they shall be applied as a
single aggravating circumstance.
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.
Fraud is inherent in estafa.
Disguise
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. Disguise
contemplates a superficial but somewhat effective
dissembling to avoid identification (People v. Reyes,
G.R. No. 118649, March 9, 1998).
Par. 15.That
1. Advantage be taken of superior strength; or
2. Means be employed to weaken the defense.
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 (REYES, Book One, supra at 410).
For abuse of superior strength, the test is the
relative strength of the offender and his victim,
whether or not he took advantage of his greater
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 (Lumiguis v.
People, G.R. No. L-20338, April 27, 1967).
In abuse of superior strength, what should be
considered is not that there were three, four or more
assailants as against one victim, but whether the
aggressors took advantage of their combined
strength in order to consummate the offense
(People v. Cabangcala, G.R. No. 135065, August 8,
2001).
Abuse of superior strength is inherent in the crime of
parricide where the husband kills the wife (People v.
Galapia, G.R. Nos. L-39303-05, August 1, 1978).
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 (People
v. Padilla, G.R. No. 75508, June 10, 1994).

46
 San Beda College of Law
2010 Centralized Bar Operations
When the victim was alternately attacked, there is party might make (People v. Lacao, Sr., G.R. No.
no abuse of superior strength (People v. Datun, 95320, September 4, 1991).
G.R. No. 118080, May 7, 1997).
Requisites of treachery:
Abuse of Superior 1. That at the time of the attack, the victim was not in
By a Band a position to defend himself; and
Strength
Appreciated when The gravamen of 2. That the offender consciously adopted the
the offense is abuse of superiority is particular means, method or form of attack
committed by more the taking advantage employed by him (ESTRADA, Book One, supra at
than three armed by the culprits of their 162).
malefactors collective strength to
regardless of the overpower their The test of treachery is not only the relative position
comparative relatively weaker of the parties but, more specifically, whether or not
strength of the victim or victims. the victim was forewarned or afforded the
victim or victims. opportunity to make a defense or to ward off the
What is taken into attack (Id. at 163).
account here is not
the number of Rules regarding treachery:
aggressors nor the 1. Applicable only to crimes against persons.
fact that they are 2. Means, methods or forms need not insure the
armed, but their accomplishment of crime.
relative physical 3. The mode of attack must be consciously adopted.
strength vis-a vis the
offended party. Treachery is taken into account even if the crime
against the person is complexed with another felony
Abuse of superior strength absorbs cuadrilla involving a different classification in the Code
(band). (People v. Abdul, G.R. No. 128074, July 13, 1999).

Note: The means employed may amount to
treachery when the victim is not able to put up any
sort of resistance.
Examples of means employed to weaken
defense:
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 (US v.
Devela, G.R. No. 1542, April 9, 1904);
2. One who, while fighting with another, suddenly
casts sand or dirt upon the latter eyes and then
wounds or kills him (People v. Siaotong, G.R. No.
L-9242, March 29, 1957).
This circumstance is applicable only to crimes
against persons, and sometimes against person and
property, such as robbery with physical injuries or
homicide (REYES, Book One, supra at 419).
Par. 16. That the act be committed with treachery
(alevosia)
Basis: Means and ways employed in
commission of the crime
Treachery (alevosia)
It is present when the offender commits any of the
crimes against persons, 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
The suddenness of attack does not, of itself, suffice
to support a finding of alevosia, 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 (People v. Real, 10 C.A. Rep. 668).
Treachery must be appreciated in the killing of a
child even if the manner of attack is not shown
(People v. Rebucan, G.R. No. 182551, July 27,
2011).
Treachery is appreciated when the accused
employed means to render the victim defenseless
before the commission of the crime, or to eliminate
the risk of defense on the part of the offended party.
Important questions to answer:
1. Was the attack sudden and unexpected?
2. Did the offended party have opportunity to defend
himself?
3. Was the mode of the attack deliberately or
consciously adopted by the accused to insure
execution without risk to himself?
the
If the answers to all these questions is YES, then
treachery is present.
When must treachery be present:
1. When the aggression is continuous, treachery
must be present in the BEGINNING of the assault
(People v. Manalad, GR No. 128593, August 14,
2002).

47
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 (US v. Baluyot, 40 Phil 385, 1919).
Hence, even though in the inception of the
aggression which resulted to 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.
Rules when the Attack is Frontal:
If the attack is frontal, there is no treachery as the
mode of attack does not include any risk to the
offender arising from the defense which the party
attacked may make. But there is treachery when the
attack, although frontal, is sudden and unexpected
and perpetrated in such a way to especially insure
its execution without any risk to the offender.
Even a frontal attack could be treacherous when
unexpected and on an unarmed victim who would
be in no position to repel the attack or avoid it
(People v. Alfon, G. R. No. 126028 March 14, 2003).
Alevosia 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.
3. There was error in personae, hence the victim
was not the one intended by the accused
(ESTRADA, Book One, supra at 166).
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 (CAN-ACE)
1. Craft;
2. Abuse of superior strength;
3. Nighttime;
4. Aid of armed men;
5. Cuadrilla (band); and
6. Employing means to weaken the defense.
Treachery cannot co-exist with passion or
obfuscation (People v. Pansensoy, GR No. 140634,
Sept. 12, 2002).
The presence of treachery, though, should not result
in qualifying the offense to murder from the Special
Complex Crime of Robbery with Homicide, for the
correct rules is that when it obtains in the special
complex crime, such treachery is to be regarded as
48
a generic aggravating circumstance, robbery with
homicide, being a case of composite crime with its
own definition and special penalty in the Revised
Penal Code (People v. Cando, G.R. No. 128114,
October 25, 2000).
Par. 17. That means be employed or
circumstances brought about which add
ignominy to the natural effects of the act.
Basis: Means employed
Ignominy
It is a circumstance pertaining to the moral order,
which adds disgrace and obloquy to the material
injury caused by the crime (People v. Acaya, G.R.
No. L-72998, July 29, 1988).
Note: This is inherent in libel and acts of
lasciviousness.
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
(People v. Carmina, G.R. No. 81404, January 28,
1991).
Injured party must not be dead when the act causing
ignominy was inflicted upon him. It is required that
the offense be committed in a manner that tends to
make its effects more humiliating to the victim, that
is, add to his moral suffering (People v. Carmina,
G.R. No. 81404, January 28, 1991).
Applicable to:
1. Crimes against chastity;
2. Less serious physical injuries;
3. Light or grave coercion; and
4. Murder.
Par. 18. That the crime be committed after an
unlawful entry.
Basis: Means and ways employed to commit the
crime
Unlawful entry
It is when an entrance (and not for escape) is
effected by a way not intended for the purpose
(REYES, Book One, supra at 458).
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 (Id.).
 San Beda College of Law
2010 Centralized Bar Operations
Example: Entering through a window
Unlawful entry is inherent in:
1. Robbery with the use of force upon things; and
2. Trespass to dwelling.
Note: When the accused gained access to the
dwelling by climbing through the window and once
inside, murdered certain persons in the dwelling,
there were two aggravating circumstances which
attended the commission of the crimesdwelling
and unlawful entry. Thus, dwelling and unlawful
entry are taken separately (People v. Bondoy, G.R.
No. 79089, May 18, 1993).
Par. 19 .That as a means to the commission of a
crime, a (WaRooFDoW)
1. Wall;
2. Roof;
3. Floor;
4. Door; or
5. Window be broken.
Basis: Means and ways employed to commit the
crime
This circumstance is aggravating only in those
cases where the offender resorted to any of said
means to enter the house. The breaking of any of
these parts of a house or building must be for the
commission of the crime (ESTRADA, Book One,
supra at 168).
Par. 19 Par. 18
It involves the Presupposes that
breaking there is no such
(rompimiento) of the breaking as by entry
enumerated parts of through the window
the house.
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. It is not necessary that
the offender should have entered the building
(REYES, Book One, supra at 460).
Where Breaking of Door or Window is Lawful:
Under Sec.11, Rule 113 of the Rules of Court, it
states that an officer, in order to make an arrest
either by virtue of a warrant, or without a warrant as
provided in Section 5, may break into any building or
enclosure where the person to be arrested is or is
reasonably believed to be, if he is refused
admittance thereto, after announcing his authority
and purpose.
Under Sec. 7, Rule 113 of the Rules of Court, it
states that the officer, if refused admittance to the
49
place of directed search after giving notice of his
purpose and authority, may break open any outer or
inner door or window of a house or any part of a
house or anything therein to execute the warrant to
liberate himself or any person lawfully aiding him
when unlawfully detained therein.
Par. 20. That the crime be committed:
1. With the aid of persons under fifteen years of
age; or
2. By means of motor vehicles, airships, or other
similar means.
Basis: Means and ways employed to commit the
crime
Two different circumstances grouped in this
paragraph:
1. With the aid of persons under fifteen years of age;
Tends to repress, so far as possible, the frequent
practice resorted to by professional criminals to
avail themselves of minors taking advantage of
their irresponsibility (REYES, Book One, supra at
462).
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 (Id.)
Use of motor vehicle is aggravating where the
accused purposely and deliberately used the
motor vehicle in:
a.Going to the place of the crime;
b.Carrying away the effects thereof; and
c.In facilitating their escape (People v. Espejo,
G.R. No. L-27708, December 19, 1970).
Note: If the motor vehicle was used only in
facilitating the escape, it should not be an
aggravating circumstance (REYES, Book One,
supra at 463).
Meaning of or other similar means
It should be understood as referring to motorized
vehicles or other efficient means of transportation
similar to automobile or airplane (REYES, Book
One, supra at 465).
Theft, which is committed by merely taking personal
property which need not be carried away cannot be
committed by means of a motor vehicle. It would be
stretching the meaning of the law too far to say that
the crime was committed by means of motor
vehicles (People v. Real, 10 C.A. Rep. 668).
Par. 21. That the wrong done in the commission
of the crime be deliberately augmented by
causing other wrong not necessary for its
commission.
 circumstance.
Basis: Ways employed to commit the crime If homicide or murder
is committed with the
Cruelty use of an unlicensed
It is cruelty when the culprit enjoys and delights in firearm, such use of
making his victim suffer slowly and gradually, an unlicensed firearm
causing unnecessary physical pain in the shall be considered
consummation of the criminal act (People v. Dayug as an aggravating
and Bannaisan, G.R. No. 25782, September 30, circumstance (P.D.
1926). 1866, Sec. 1, par.3).

Requisites of cruelty: Use of Unlicensed When a person

1. That the injury caused be deliberately increased Firearm commits any crime
by causing other wrong; and (PD No. 1866 as under the Revised
2. That the other wrong be unnecessary for the amended by R.A. Penal Code or special
execution of the purpose of the offender. 8294) laws with the use of
explosives including
Cruelty is inherent in: but not limited to
1. Crimes against persons; and pillbox, molotov
2. Mutilation. cocktail bombs,
denotation agents or
There must be positive proof that the wounds found incendiary devices
on the body of the victim were inflicted while he was resulting in the death
still alive in order to unnecessarily prolong physical of a person, the same
suffering (People v. Pacris, G.R. No. 69986, March is aggravating (P.D.
5, 1991). 1866, Sec. 3).
The maximum penalty
Number of wounds alone does not show cruelty, it Organized/Syndicated shall be imposed if
being necessary to show that the accused Crime Group under the offense was
deliberately and inhumanly increased the sufferings R.A. 7659 committed by any
of the victims (People v. Aguinaldo, G.R. No. 33843, person who belongs
February 11, 1931). to an
organized/syndicated
If the victim was already dead when the acts of crime group.
mutilation were being performed, this would also Owner, driver or The penalty of life
qualify the killing to murder due to outraging of his passenger of imprisonment to death
corpse. But since the victim is already dead, cruelty carnapped vehicle is is imposed.
cannot be appreciated in this case (People v. killed or raped
Balisteros, G.R. No. 110289, October 7, 1994).
Organized/syndicated crime group
Ignominy Cruelty It is a group of two or more persons collaborating,
(Par. 17) (Par. 21) confederating or mutually helping one another for
Involves moral Refers to physical the purposes of gain in the commission of any crime
suffering suffering (R.A. 7659, Art. 23).

Unlike mitigating circumstances (RPC, Art. 13, par. Crimes involving gain or profit: (TERI)
10), there is no provision for aggravating 1. Theft;
circumstances of a similar or analogous character. 2. Estafa;
3. Robbery; and
Other Aggravating Circumstances Under Special 4. Illegal Recruitment.
Penal Laws
Thus syndicate is not aggravating in:
When a crime is
1. Homicide;
committed by an
2. Murder;
R.A 9165, offender who is under
3. Rape; and
Comprehensive the influence of
4. Physical Injuries.
Dangerous Drugs Act dangerous drugs,
of 2002 such state shall be
Specific Aggravating Circumstances
considered as a
qualifying aggravating 1. Violation of domicile (nighttime; papers and effects
not returned immediately);

50
 San Beda College of Law
2010 Centralized Bar Operations
2. Interruption of religious worship (violence or
threats);
3. Direct assault (weapon, offender is a public officer
or employee; offender lays hands upon a person
in authority);
4. Grave threats (in writing; thru a middleman);
5. Slavery;
6. Robbery with violence against or intimidation of
persons (uninhabited place, band) EXCEPT:
robbery with homicide or robbery with rape; and
7. Robbery with force upon things (uninhabited place
and by a band).
ARTICLE 15
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.
The alternative circumstances are: (RID)
1. Relationship;
2. Intoxication; and
3. Degree of instruction and education of the
offender.
Relationship
Shall be taken into consideration when the
offended party is the: (SADBroSA)
a. Spouse;
b. Ascendant;
c. Descendant;
d. Legitimate, natural, or adopted brother or sister;
e. Relative by affinity in the same degree of the
offender.
Other relatives included:
a. The relationship of stepfather or stepmother and
stepson or stepdaughter (People v. Bersabal,
G.R. No. 24532, December 11, 1925).
Reason: It is the duty of the stepparents to
bestow upon their stepchildren
mothers/fathers affection, care and protection.
b. The relationship of adopted parent and adopted
child.
But the relationship of uncle and niece is not
covered by any of the relationship mentioned
(People v. Lamberte, G.R. No. L-65153, July 11,
1986).
Application:
a. Crimes against Property
Mitigating in the ff. crimes against property
(RUFA):
i. Robbery (Arts. 294-302);
ii. Usurpation (Art. 312);
iii. Fraudulent Insolvency(Art. 314); and
iv. Arson (Arts. 321-322, 325-326).
Exempting circumstance in the crimes of
(TEM):
i. Theft;
ii. Estafa; and
iii. Malicious mischief if the offender and the
offended party lives together (RPC, Art. 332).
b.Crimes against Persons
It is aggravating in crimes against persons in
cases where the offended party is a relative of a
higher degree than the offender, or when the
offender and the offended party are relatives of
the same level (People v. Alisub, G.R. No.
46588, January 20, 1940).
i. Serious physical injuries (Art. 263)
Aggravating even if the offended party is a
descendant of the offender. If the offense of
serious physical injuries is committed by the
offender against his child, whether legitimate
or illegitimate, or any of his legitimate other
descendants, relationship is aggravating. But
the serious physical injuries must not be
inflicted by a parent upon his child by
excessive chastisement (See RPC, Art. 263;
REYES, Book One, supra at 474).
ii. Less serious physical injuries or slight
physical injuries:
1. Mitigating if the offended party is a relative
of a lower degree; and
2. Aggravating if the offended party is a
relative of a higher degree of the offender
(Id. at 475).
iii. Homicide or murder: relationship is
aggravating regardless of degree (Id.).
iv. Rape: aggravating where a stepfather raped
his stepdaughter or in a case where a father
raped his own daughter (Id.).
a c. Crimes against chastity
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 (Id.).
Intoxication; When intoxication mitigating and
when aggravating:
51
 Mitigating Aggravating
If intoxication is not If intoxication is
habitual habitual, or
If intoxication is not If it is intentional
subsequent to the (subsequent to the
plan to commit a plan to commit a
felony felony) - drinks fully,
knowing its effects, to
find a stimulant to
commit a crime or a
means to suffocate
any remorse
To be entitled to the mitigating circumstance
of intoxication, it must be shown:
a. 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
b. That such intoxication is not habitual, or
subsequent to the plan to commit the felony
(People v. Boduso, G.R. No. L-30450-51,
September 30, 1974).
Habitual Drunkard
He is one given to intoxication by excessive use
of intoxicating drinks.
The habit should be actual and confirmed. It is
unnecessary that it be a matter of daily
occurrence (People v. Camano, G.R. No. L-
36662-63, July 30, 1982).
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 (People v.
Fortich, G.R. No. 80399-404, November 13,
1997).
Instruction or Education
As an alternative circumstance, does not refer
only to literacy but more to the level of intelligence
of the accused. It refers to the lack of sufficient
intelligence and knowledge of the full significance
of ones acts (People v. Nabong, G.R. No.
172324, April 3, 2007).
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 (REYES, Book One, supra at 482).
General Rule: Lack of sufficient education is
mitigating.
a. Crimes against property, e.g. arson, estafa,
theft, robbery (US v. Pascual, G.R. No.
3777,January 6, 1908);
b. Crimes against chastity;
c. Treason because love of country should be a
natural feeling of every citizen, however
unlettered or uncultured he may be;
d. Murder; and
e. Rape (Molesa v. Director of Prisons, G.R. No.
39998, January 24, 1934).
TITLE TWO: PERSONS
CRIMINALLY LIABLE FOR
ARTICLE 16
WHO ARE CRIMINALLY LIABLE
For grave and less grave felonies:
1. Principals;
2. Accomplices; and
3. Accessories.
For light felonies:
1. Principals; and
2. Accomplices.
Light Felonies are punishable only when
consummated but in crimes against persons or
property, light felonies are punishable in attempted
and frustrated stage but only principal and
accomplice are liable (RPC, Art. 7).
Accessories are not liable for light felonies (RPC,
Art. 16).
Reason: In the commission of light felonies, the
social wrong as well as the individual prejudice is so
small that penal sanction is deemed not necessary
for accessories (REYES, Book One, supra at 489).
The classification of the offenders as principal, an
accomplice, or an accessory is essential under the
RPC. The classification may be applied to special
laws only if the latter provides for the same
graduated penalties as those provided under the
RPC.
Two parties in all crimes:
1. Active subject (the criminal)
Art. 16 enumerates the active subjects of the
crime.
Only natural persons can be the active subject of
crime because of the highly personal nature of the
criminal responsibility (Id. at 490).
Reasons:

Exceptions: (PCTMR)

52
 San Beda College of Law
2010 Centralized Bar Operations
a.Under the RPC, persons act with personal
malice or negligence, artificial persons cannot When the second requisite is lacking, there is only
act with malice or negligence. conspiracy (REYES, Book One, supra at 524).
b.A juridical person like a corporation cannot
commit a crime that requires willful purpose or In conspiracy by prior agreement, the principal by
malicious intent. direct participation who does not appear at the
c.There is substitution of deprivation of liberty for scene of the crime is not liable because:
pecuniary penalties in insolvency cases. a. His non-appearance is deemed desistance
d. Other penalties like destierro and imprisonment which is favored and encouraged (ESTRADA,
are executed on individuals only (Id.). Book One, supra at 180).
b.Conspiracy is generally not a crime unless the
2. Passive subject (the injured party) law specifically provides a penalty therefor
The holder of the injured right: the man, the juristic (RPC, Art 8). Thus, by merely conspiring, the
person, the group, and the State would-be participator has not yet committed any
crime unless he would appear at the scene of
Corporation and partnership can be a passive the crime and perform any act directly or
subject of a crime. indirectly in the accomplishment of the
conspiracy.
General rule: Corpses and animals cannot be c.There is no basis for criminal liability because
passive subjects because they have no rights that there is no criminal participation.
may be injured (Id.).
Personally took part in its execution
Exception: Under Art. 253, the crime of That the principal by direct participation must be at
defamation may be committed if the imputation the scene of the commission of the crime,
tends to blacken the memory of one who is dead. personally taking part in its execution (Id. at 179)
except when there is conspiracy and the principal
Art. 16 applies only when the offenders are to be by direct participation has already performed his
judged by their individual, and not collective, part prior to the actual commission of the crime.
liability.
Note: The cooperation which the law punishes is
the assistance which is knowingly or intentionally
given and which is not possible without previous
knowledge of the criminal purpose (People v.
ARTICLE 17 Cruz, G.R. No. 74048, November 14, 1990).
PRINCIPALS
Par. 2. Principals by induction
Principal by Principal by Principal by
Direct Induction Indispensable Requisites:
Participation Cooperation 1. That the inducement be made directly with the
Those who Those who Those who intention of procuring the commission of the crime;
take a direct directly force cooperate in and
part in the or induce the 2. That such inducement be the determining cause
execution of others to commission of of the commission of the crime by the material
the act. commit it. the offense by executor (US v. Indanan, G.R. No. 8187, January
another act 29, 1913).
without which
it would not To constitute inducement, there must exist on the
have been part of the inducer the most positive resolution and
accomplished. most persistent effort to secure the commission of
the crime, together with the presentation to the
Par. 1. Principals by direct participation person induced of the very strongest kind of
temptation to commit the crime (US v. Indanan,
Requisites: supra).
1. That they participated in the criminal resolution;
and One cannot be held guilty of having instigated the
2. That they carried out their plan and personally commission of the crime without first being shown
took part in its execution by acts which directly that the crime was actually committed (or attempted)
tended to the same end (People v. Ong Chiat Lay, by another (ESTRADA, Book One, supra at 180).
G.R. No. 39086, October 26, 1934).

53
Thus, there can be no principal by inducement (or
by indispensable cooperation) unless there is a
principal by direct participation. But there can be a
principal by direct participation without a principal by
inducement (or by indispensable cooperation) (Id.).
The inducement must be the determining cause of
the commission of the crime by the principal by
direct participation that is without such inducement,
the crime would not have been committed (US v.
Indanan, supra).
The inducement must precede the act and must be
so influential, hence if there is a price or reward
involved, without prior promise, there can be no
inducement (REYES, Book One, supra at 529).
If the crime committed is not contemplated in the
order given, inducement is not material and not the
determining cause thereof.
Two ways of becoming principal by induction:
1.By directly forcing another to commit a crime
by:
a. Using irresistible force.
Irresistible Force
It is such physical force as would produce an
effect upon the individual that in spite of all
resistance, it reduces him to a mere instrument
(US v. Elicanal, G.R. No. October 28, 1916).
b. Causing uncontrollable fear.
Uncontrollable Fear
It is a compulsion by means of intimidation or
threat that promises an evil of such gravity and
eminence that the ordinary man would have
succumbed to it (U.S. v. Elicanal, supra.).
In these cases, there is no conspiracy, not even
a unity of criminal purpose and intention. Only
the one using the force or causing the fear is
criminally liable. The material executor is not
criminally liable because of Art. 12, pars. 5 and
6 (exempting circumstances).
2.By directly inducing another to commit a crime
by:
a.Giving of price, or offering of reward or promise.
The one giving the price or offering the reward
or promise is a principal by inducement while
the one committing the crime in consideration
thereof is a principal by direct participation.
There is collective criminal responsibility
(REYES, Book One, supra at 526).
b. Using words of command
The person who used the words of command is
a principal by inducement while the person who
54
committed the crime because of the words of
command is a principal by direct participation.
There is also collective criminal responsibility.
In determining whether the utterances of an
accused are sufficient to make him guilty as co-
principal by inducement, it must appear that the
inducement was of such nature and was made
in such a way as to become the determining
cause of the crime and that such inducement
was uttered with the intention of producing the
result (People v. Castillo, G.R. No. 19238, July
26, 1966).
Requisites:
i. That the one uttering the words of command
must have the intention of procuring the
commission of the crime;
ii. That the one who made the command must
have an ascendancy or influence over the
person who acted;
iii. That the words used must be so direct, so
efficacious, so powerful as to amount to
physical or moral coercion;
iv. The words of command must be uttered prior
to the commission of the crime; and
v. The material executor of the crime has no
personal reason to commit the crime.
The inducement must precede the act induced and
must be so influential in producing the criminal act
that without it, the act would not have been
performed (REYES, Book One, supra at 529).
If the person who actually committed the crime had
reason of his own to commit the crime, it cannot be
said that the inducement was influential in producing
the criminal act (People v. Kiichi Omine, G.R. No.
42476, July 24, 1935).
Note: A distinction should be made between the
words of command of a father to his sons, under
conditions which determine obedience, and the
excited exclamations uttered by an individual to
whom obedience is not due. The moral influence of
the words of the father may determine the course of
conduct of a son in cases where the same words
coming from a stranger would make no impression
(People v. Tamayo, G.R. No. 18989, November 17,
1922).
Offender who Made
Principal by
Proposal to
Inducement
Commit a Felony
In both
There is an inducement to commit a crime
When liable
 San Beda College of Law
2010 Centralized Bar Operations
Becomes liable only The mere proposal 2. Cooperation in the commission of the offense by
when the crime is to commit a felony is performing another act, without which it would not
committed by the punishable in have been accomplished.
principal by direct treason or rebellion. a.Cooperation must be indispensable.
participation However, the person b.If dispensable, accused is only an accomplice
to whom the c.If cooperation is necessary in the execution of
proposal is made the offense, accused is considered as a
should not commit principal by direct participation (REYES, Book
the crime, One, supra at 536-538).
otherwise, the Note: The act of the principal by indispensable
proponent becomes cooperation should be different from the act of the
a principal by principal by direct participation.
inducement.
What kind of crime involved Meaning of cooperation in the commission of
Involves any crime The proposal to be the offense
punishable must To desire or wish in common a thing. But that
involve only treason, common will or purpose does not necessarily
rebellion, mean previous understanding, for it can be
insurrection or coup explained or inferred from the circumstances of
d etat (TRIC). each case (People v. Aplegido, G.R. No. L-163,
April 27, 1946).
Effects of acquittal of principal by direct
participation upon liability of principal by Collective Criminal Responsibility
inducement: This is present when the offenders are criminally
1. Conspiracy is negated by the acquittal of co- liable in the same manner and to the same extent.
defendant. The penalty to be imposed must be the same for all
2. One cannot be held guilty of having instigated the (Id. at 540)
commission of a crime without first being shown
that the crime has been actually committed by Principals by direct participation have collective
another (People v. Ong Chiat Lay, G.R. No. criminal responsibility. Principals by induction,
39086, October 26, 1934). except those who directly forced another to commit
a crime, and principals by direct participation have
But if the one charged as principal by direct collective criminal responsibility. Principals by
participation is acquitted because he acted without indispensable cooperation have collective criminal
criminal intent or malice, his acquittal is not a ground responsibilities with the principals by direct
for the acquittal of the principal by inducement participation (Id.).
(People v. Po Gok To, G.R. No. L-7236, April 30,
1955). Individual Criminal Responsibility
In the absence of any previous conspiracy, unity of
Reason for the rule: In exempting circumstances, criminal purpose and intention immediately before
such as when the act is not voluntary because of the commission of the crime, or community of
lack of intent on the part of the accused, there is a criminal design, the criminal responsibility arising
crime committed, only that the accused is not a from different acts directed against one and the
criminal. same person is individual and not collective, and
each of the participants is liable only for the act
Par. 3. Principal by indispensable cooperation committed by him (Id.).

Requisites:
1. Participation in the criminal resolution, that is,
there is either anterior conspiracy or unity of
criminal purpose and intention immediately before
the commission of the crime charged; and
a. Requires participation in the criminal resolution.
b. There must be conspiracy.
c. Concurrence is sufficient.
d. Cooperation is indispensable.
ARTICLE 18
ACCOMPLICES
Accomplices
They are persons who, not acting as principals,
cooperate in the execution of the offense by
previous and simultaneous acts, which are not
indispensable to the commission of the crime.
They act as mere instruments who perform acts not
essential to the perpetration of the offense.

Requisites:

55
1. That there be community of design; that is,
knowing the criminal design of the principal by
direct participation, he concurs with the latters
purpose;
Mere knowledge of the criminal resolution only
and not concurrence or participation.
accomplice (People v. Toling, G.R. No. L-28548,
July 13, 1979).
The person charged as an accomplice should not
have inflicted a mortal wound. If he inflicted a mortal
wound, he becomes a principal by direct
participation (People v. Aplegido, supra).

2. That he cooperates in the execution of the offense In case of doubt, the participation of the offender will
by previous or simultaneous acts, with the be considered that of an accomplice rather than that
intention of supplying material or moral aid in the of a principal (REYES, Book One, supra at 541).
execution of the crime in an efficacious way; and
3. That there be a relation between the acts done by Quasi Collective Responsibility
the principal and those attributed to the person It is one where some of the offenders in the crime
charged as an accomplice (People v. Tamayo, are principals and the others are accomplices.
supra).
Note: It is not enough that a person entertains an Accomplice Conspirator
identical criminal design as that of the principal. They know and agree with the criminal
There must be a relation between the criminal act design.
of the principal by direct participation and that of They come to know They come to know
the person charged as accomplice (REYES, Book about it after the the criminal intention
One, supra at 559). principals have because they
reached the decision, themselves have
An accomplice is also known as accessory before and only then do they decided upon such
the fact. agree to cooperate in course of action.
its execution.
The cooperation of an accomplice may be: They are merely They are the authors
1. By previous act; and instruments who of a crime.
2. By simultaneous acts. perform acts not
essential to the
His participation should only be necessary but not perpetration of the
indispensable (People v. Villegas, et. al., 59 O.G. offense.
7060).
Principal by
Before there could be an accomplice, there must be Indispensable Accomplice
a principal by direct participation (ESTRADA, Book Cooperation
One, supra at 186). Cooperation must be Cooperation is
indispensable. dispensable.
One can be an accomplice even if he did not know Participation in the Cooperates in the
of the actual specific crime intended to be committed criminal resolution, execution of the
by the principal, provided he was aware that the that is, there is either offense by previous
objective of the acts he was tasked to do was illicit. anterior conspiracy or or simultaneous acts,
Also, it is sufficient if there was a common purpose unity of criminal with the intention of
to commit a particular crime and that the crime purpose and intention supplying material or
actually committed was a natural or probable immediately before moral aid in the
consequence of the intended crime (People v. the commission of the execution of the
Largo, et.al., G.R. No. L-4913, August 28, 1956). crime charged crime in an
efficacious way
However, when the owner of the gun knew that it
would be used to kill a particular person, and the Note: The pumpboat owner who helped the
principal used it to kill another person, the owner of offenders by pretending that his pumpboat needed
the gun is not an accomplice as to the killing of the towing by the passing boat of the victim was merely
other person (People v. De la Cerna, G.R. No. L- an accomplice. Here, the offenders transferred to
20911, October 30, 1977). the boat of the victims and the latter robbed and
killed them. The offenders could have asked for the
Absent knowledge of the criminal purpose of the help of other pumpboat owners, hence the
principal, giving aid or encouragement, either accuseds cooperation was not indispensable
morally or materially, in the commission of the crime, (People v. Sotto, G.R. No. 106083-84, March 29,
mere presence at the scene does not make one an 1996).

56
 San Beda College of Law
2010 Centralized Bar Operations
ARTICLE 19
ACCESSORIES
Accessories
They are those who:
1. Having knowledge of the commission of the crime;
and
2. Without having participated therein either as
principals or accomplices, take part subsequent to
its commission in any of the following acts:
a. By profiting themselves or assisting the offender
to profit by the effects of the crime;
In profiting by the effects of the crime, the
accessory must receive the property from the
principal. He should not take it without the
consent of the principal. If he took it without the
consent of the principal, he is not an accessory
but a principal in the crime of theft (REYES,
Book One, supra at 567).
Knowledge of the commission of the crime after
acquisition of stolen property is sufficient.
b. By concealing or destroying the body, effects or
instruments of the crime to prevent its
discovery; or
Requisites:
i. The fact that the crime was committed; and
ii. The participation of the offender in the
commission of the crime.
Body of the crime is equivalent to corpus
delicti.
Corpus Delicti
It means that a crime has been committed; that
a crime has actually been perpetrated. It means
actual commission by someone of a particular
crime charged, e.g. body of a murdered man,
charred remains of a burned down house
(People v. Villaseor, G.R. No. L-28574,
October 24, 1970).
Elements:
1. The proof of the occurrence of a certain event;
and
2. Some persons criminal responsibility (People
v. Boco, G.R. No. 129676, June 23, 1999).
c. By harboring, concealing, or assisting in the
escape of the principal of the crime, provided
the accessory acts with abuse of his public
functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or
is known to be habitually guilty of some other
crime.
Two classes of accessories contemplated in par.
3 of Art. 19:
57
1. Public officers who harbor, conceal or assist in the
escape of the principal of any crime (not light
felony) with abuse of his public functions; and
Requisites:
a. The accessory is a public officer;
b. He harbors, conceals, or assists in the escape
of the principal;
c. The public officer acts with abuse of his public
functions; and
d. The crime committed by the principal is any
crime, provided it is not a light felony.
2. Private persons who harbor, conceal or assist in
the escape of the author of the crime who is guilty
of treason, parricide, murder, or attempts against
the life of the President, or who is known to be
habitually guilty of some other crime.
Requisites:
a. The accessory is a private person;
b. He harbors, conceals or assists in the escape of
the author of the crime; and
c. The crime committed by the principal is either:
(MAP-HaT)
i. Murder;
ii. An attempt against the life of the President;
iii. Parricide;
iv. That the principal is known to be habitually
guilty of some other crime; or
v. Treason.
Where the alleged principal is acquitted, it is neither
proper nor possible to convict the defendant as an
accessory. The responsibility of the accessory is
subordinate to that of the principal in a crime (US v.
Mendoza, G.R. No. 7540, September 23, 1912).
However, conviction of an accessory is possible
notwithstanding the acquittal of the principal, if the
crime was in fact committed, but the principal was
not held liable, because of an exempting
circumstance such as insanity or minority. US v.
Villaluz, G.R. No. 10726, December 1, 1915).
Neither the letter nor the spirit of the law requires
that the principal be convicted before one may be
punished as an accessory. As long as the corpus
delicti is proved and the accessorys participation as
such is shown, he can be held criminally responsible
and meted out the corresponding penalty (Inovero v.
Coronel, CA, 65 O.G. 3160).
General rule: The prescribed acts of the accessory
under par. 2 must have been intended to prevent the
discovery of the crime; hence, mere silence is NOT
punishable (US v. Caballeros, G.R. No. 1352, March
29, 1905).
Exceptions: unless the accessory
1. If, however, the crime involved is conspiracy to is a public officer who
commit treason, his silence may hold him liable for acts with abuse of
misprision of treason (RPC, Art. 116) but as a public functions.
principal thereof. The crime committed The crime committed
2. Knowingly concealing the evil practices by the principal must by the principal is
enumerated in Art. 142 is also punishable as a be under the RPC. punishable under any
principal in Inciting to Sedition (RPC, Art. 142). existing penal law,
including the RPC.
PRESIDENTIAL DECREE 1612 The person who gave The person who gave
ANTI-FENCING LAW OF 1979 assistance is assistance is
punished as an punished as a
Fencing accessory in the principal in the crime
It is an act, with intent to gain, of buying, selling, offense committed by of obstruction of
receiving, possessing, keeping, or in any other the principal. justice.
manner dealing in anything of value which a person Note: For further discussion on P.D. 1829, see
knows or should have known to be derived from the section on Special Penal Laws.
proceeds of the crime of robbery or theft (P.D. 1612,
Sec. 2[a]). ARTICLE 20
ACCESSORIES WHO ARE
Fence EXEMPT FROM CRIMINAL LIABLITY
He is a person who commits the act of fencing. A
fence who receives stolen property as above- The exemption provided for in this article is based
provided is not an accessory but a principal in the on the ties of blood and the preservation of the
crime defined in and punished by the Anti-Fencing cleanliness of ones name, which compels one to
Law (P.D. 1612, Sec.2 [b]). conceal crimes committed by relatives so near as
those mentioned in this article (REYES, Book One,
Mere possession of anything of value which has supra at 581).
been the subject of robbery or theft shall be prima
facie evidence of fencing (P.D. 1612, Sec. 5). An accessory is exempt from criminal liability
when the principal is his
1. Spouse;
PENALIZING OBSTRUCTION OF 2. Ascendant;
APPREHENSION AND PROSECUTION OF 3. Descendant; or
CRIMINAL OFFENDERS 4. Legitimate, natural or adopted brother, sister or
PRESIDENTIAL DECREE 1829 relative by affinity within the same degree.
P.D. 1829 penalizes the act of any person who Accessory is NOT exempt from criminal liability
knowingly or willfully obstructs, impedes, frustrates even if the principal is related to him, if such
or delays the apprehension of suspects and the accessory:
investigation and prosecution of criminal cases. 1. Profited by the effects of the crime; or
2. Assisted the offender to profit by the effects of the
The acts enumerated under this decree are crime.
commonly referred to as OBSTRUCTION OF
JUSTICE. It penalizes, inter alia, the act of Reason: Because such acts are prompted not by
harboring or concealing, or facilitating the escape of affection but by a detestable greed (Id.).
any person he knows or has reasonable ground to
believe or suspect, has committed any offense If a public officer is involved and he furnished the
under existing penal laws in order to prevent his means of escape to his brother who had committed
arrest, prosecution and conviction. Here, he shall be murder, he is NOT criminally liable. Ties of blood or
punished as a principal in the crime of obstruction of relationship constitute a more powerful incentive
justice. than the call of duty. Also, Article 20 of RPC does
not grant the benefits of exemption only to
accessories who profited or helped the offender
Art. 19, RPC P.D. 1829 profit by the effects of the crime. This is the only
The principal who The person who was case where the accessory who is related to the
was assisted assisted committed offender incurs criminal liability (REYES, Book One,
committed only any of any crime. supra at 583).
the enumerated
felonies (MAPHaT)

58
 San Beda College of Law
2010 Centralized Bar Operations
Note: The benefits of the exception in Art. 20 do not
apply to PD 1829.
TITLE THREE: PENALTIES
Penalty
It is the suffering that is inflicted by the State for the
transgression of the law (REYES, Book One, supra
at 584).
Different juridical conditions of penalty: (P2C3EL)
1. Must be productive of suffering, without however
affecting the integrity of the human personality;
2. Must be personal no one should be punished for
the crime of another;
3. Must be commensurate with the offense
different crimes must be punished with different
penalties;
4. Must be certain no one may escape its effects;
5. Must be correctional;
6. Must be equal for all; and
7. Must be legal it is the consequence of a
judgment according to law (Id.).
Purpose of the state in punishing crimes: The
State has an existence of its own to maintain, a
conscience to assert, and moral principles to be
vindicated. Penal justice must therefore be
exercised by the State in the service and satisfaction
of a duty, and rests primarily on the moral
rightfulness of the punishment inflicted (REYES,
Book One, supra at 585).
The basis of the right to punish violations of penal
law is the police power of the State.
Three-fold Purpose of Penalty under RPC:
1. Retribution or expiation;
2. Correction or reformation; and
3. Social Defense (Id.).
Constitutional Restriction on Penalties: The
Constitution directs that excessive fines shall not be
CHAPTER ONE
PENALTIES IN GENERAL (ARTS. 21-24)
imposed, nor cruel and unusual punishment inflicted
(CONST. Art. 3, Sec. 19[19]).
ARTICLE 21
PENALTIES THAT MAY BE IMPOSED
A felony shall be punishable only by the penalty
prescribed by law at the time of the commission.
59
Reason: Because a law cannot be rationally obeyed
unless it is first shown, and a man cannot be
expected to obey an order that has not been given
(REYES, Book One, supra at 587).
ARTICLE 22
RETROACTIVE EFFECT OF PENAL LAWS
General Rule: Penal laws are applied prospectively.
Exception: When retrospective application will be
favorable to the person guilty of a felony, provided
that:
1. The offender is NOT a habitual criminal
(delinquent) under Art. 62(5); and
2. The new or amendatory law does NOT provide
against its retrospective application.
Reason for the exception: The sovereign, in
enacting a subsequent penal law more favorable to
the accused, has recognized that the greater
severity of the former law is unjust.
Note: This favorable application of laws applies
equally whether the crime consists of violations of
the Revised Penal Code or of special penal laws,
(BOADO, supra at 202).
Habitual Delinquent
He is a person who, within a period of ten years
from the date of his release or last conviction of the
crimes of Falsification, Robbery, Estafa, Theft, or
Serious or Less serious physical injuries
(FRETSeL), is found guilty of any said crimes a third
time or oftener (RPC, Art. 62).
Ex Post Facto Law
It is an act which when committed was not a crime,
cannot be made so by statute without violating the
constitutional inhibition as to ex post facto laws.
An ex post facto law is one which:
1. Makes criminal an act done before the passage of
the law and which was innocent when done;
2. Aggravates a crime, or makes it greater than it
was, when committed;
3. Changes the punishment and inflicts a greater
punishment than the law annexed to the crime
when committed;
4. Alters the legal rules of evidence, and authorizes
conviction upon a less or different testimony than
the law required at the time of the commission of
the offense;
5. Assumes to regulate civil rights and remedies
only, in effect imposing a penalty or deprivation of
a right for something which when done was lawful;
and
6. Deprives a person accused of a crime of some
lawful protection to which he has become entitled,
such as the protection of a former conviction or
 acquittal, or a proclamation of amnesty (In Re:
Kay Villegas Kami, Inc., supra).
If retroactive effect of a new law is justified, it shall
apply to the defendant even if he is:
1. Presently on trial for the offense;
2. Has already been sentenced but service of which
has not begun; or
3. Already serving sentence.
The exception applies to a law dealing with
prescription of crime.
The retroactive effect of criminal statutes does not
apply to the culprits civil liability (People v.
Panaligan, C.A. 40 O.G. 207).
Reason: The rights of offended persons or innocent
third parties are not within the gift of arbitrary
disposal of the State.
No retroactive effect even when favorable to the
accused if the new law is expressly made
inapplicable to pending actions or existing causes of
action (Tavera v. Valdez, G.R. No. 922 ,November
8, 1902).
Criminal liability under the repealed law
subsists:
1. When the provisions of the former law are
reenacted;
The right to punish offenses committed under an
old penal law is not extinguished if the offenses
are still punishable in the repealing penal law (US
v. Cuna, G.R. No. 4504, December 15, 1908).
2. When the repeal is by implication; or
When a penal law, which impliedly repealed an old
law, is itself repealed, the repeal of the repealing
law revives the prior penal law, unless the
language of the repealing statute provides
otherwise.
If the repeal is absolute, criminal liability is
obliterated.
3. When there is a saving clause.
When the repeal is absolute, the offense ceases
to be criminal (People v. Tamayo, supra).
Note: No retroactive effect of penal laws as regards
jurisdiction of court. The jurisdiction of the court to
try a criminal action is to be determined by the law in
force at the time of instituting the action, not at the
time of the commission of the crime (People v.
Pegarum, G.R. No. 37565, November 13, 1933).
Jurisdiction of courts in criminal cases is determined
by the allegations of the complaint or information,
and not by the findings the court may make after trial
60
(People v. Mission, G.R. No. L-3488, November 28,
1950).
Note: See discussion of retroactive law under the
Prospective characteristic of criminal law.
ARTICLE 23
EFFECT OF PARDON BY THE
OFFENDED PARTY
General Rule: Pardon by the offended party does
NOT extinguish the criminal liability of the offender.
Reason: A crime committed is an offense against
the State. Only the Chief Executive can pardon the
offenders (RPC, Art. 36).
Note: In criminal cases, the intervention of the
aggrieved parties is limited to being witnesses for
the prosecution.
Compromise upon the civil liability arising from an
offense may be had; but such compromise shall not
extinguish the public action for the imposition of the
legal penalty (CIVIL CODE, Art. 2034).
A contract stipulating for the renunciation of the right
to prosecute an offense or waiving the criminal
liability is void (CIVIL CODE, Arts. 1306, 1352,
1409).
Exception: Pardon by the offended party will bar
criminal prosecution in the following crimes:
1. Adultery and Concubinage (RPC, Art. 344)
Express and Implied pardon must be given by
offended party to BOTH offenders.
Pardon must be given prior to institution of
criminal action (People v. Lim, G.R. No. 85753
,February 13, 1992).
2. Seduction, Abduction, Acts of Lasciviousness
(RPC, Art. 344)
Express pardon given by offended party or her
parents or grandparents or guardian
Note: People v. Lacson (CA 55 OG 9460) held
that the pardon by the parents, standing alone, is
inefficacious. Too, the express pardon of a person
guilty of attempted abduction of a minor, granted
by the latters parents, is not sufficient to remove
criminal responsibility, but must be accompanied
by the express pardon of the girl herself.
Pardon must be given prior to the institution of the
criminal action. However, marriage between the
offender and the offended party even after the
institution of the criminal action or conviction of the
offender will extinguish the criminal action or remit
the penalty already imposed against the offender,
 San Beda College of Law
2010 Centralized Bar Operations
his co-principals, accomplices, and accessories
after the fact.
Note: Not applicable in rape, where there are two
or more principals involved and in case of multiple
rape.
3. Rape (as amended by R.A. 8353)
The subsequent valid marriage between the
offender and the offended party shall extinguish
criminal liability or the penalty imposed. Marital
pardon granted before the filing of the case, during
the proceedings and even after final conviction
shall extinguish criminal liability and shall remit or
rebate the penalty already imposed.
Pardon by the offended party under Art. 344 is
only a bar to criminal prosecution; it is not a
ground for extinguishment of criminal liability
(ESTRADA, Book One, supra at 212).
P.D. No. 603) and for the purposes specified
therein;
3. Suspension from the employment or public office
during the trial or in order to institute proceedings;
4. Fines and other corrective measures which, in the
exercise of their administrative or disciplinary
powers, superior officials may impose upon their
subordinates; and
5. Deprivation of rights and the reparations which the
civil law may establish in penal form.
Reasons why they are NOT penalties:
1. They are not imposed as a result of judicial
proceedings. Those mentioned in paragraphs 1, 3
and 4 are merely preventive measures before
conviction of offenders (REYES, Book One, supra
at 600).
2. The offender is not subjected to or made to suffer
these measures in expiation of or as punishment
for a crime.

Civil liability may be extinguished by the express Par. 1 does not refer to the confinement of an insane
waiver of the offended party. or imbecile who has not been arrested for a crime. It
refers to accused persons who are detained by
An offense causes 2 classes of injuries: reason of insanity or imbecility.
Social Injury Personal Injury
Paragraphs 3 and 4 refer to administrative
Caused to the victim of suspension and administrative fines and not to
Produced by the the crime who suffered suspension or fine as penalties for violations of the
disturbance and alarm damage either to his RPC.
which are the outcome person, to his property,
of the offense. to his honor or to her The deprivations of rights established in penal form
chastity. by the civil laws is illustrated in the case of parents
who are deprived of their parental authority if found
Is sought to be guilty of the crime of corruption of their minor
repaired through the Is repaired through children, in accordance with Art. 332 of the Civil
imposition of the indemnity. Code.
corresponding penalty.
Where a minor offender was committed to a
The State has an The State has no reformatory pursuant to Art. 80 (now, PD 603), and
interest in this class of reason to insist in its while thus detained he commits a crime therein, he
injury. payment. cannot be considered a quasi-recidivist since his
detention was only a preventive measure, whereas
The offended party
quasi-recidivism presupposes the commission of a
cannot pardon the The offended party
crime during the service of the penalty for a previous
offender so as to may waive the
crime.
relieve him of the indemnity.
penalty.
ARTICLE 25
PENALTIES WHICH MAY BE IMPOSED
ARTICLE 24
MEASURES OF PREVENTION OR SAFETY CHAPTER TWO
WHICH ARE NOT CONSIDERED PENALTIES CLASSIFICATION OF PENALTIES (ARTS.
25-26)
The following are NOT considered as penalties:
1. The arrest and temporary detention of accused
persons, as well as their detention by reason of The scale in Art. 25 is only a general classification of
insanity or imbecility, or illness requiring their penalties based on their severity, nature and subject
confinement in a hospital; matter.
2. The commitment of a minor to any of the
institutions mentioned in Art. 80 (now Art. 192,

61
The scale of penalties in Art. 70 is provided for
successive service of sentences imposed on the
same accused, in consideration of their severity and
natures.
The scales in Art. 71 are for the purpose of
graduating the penalties by degrees in accordance
with the rules in Art. 61.
Classification of Penalties under Article 25:
A. Based on their severity or gravity
1. Capital;
2. Afflictive;
3. Correctional; and
4. Light.
This classification corresponds to the classification
of felonies in Art. 9, into grave, less grave and
light.
B. Based on their nature
1. Principal penalties those expressly imposed
by the court in the judgment of conviction
(REYES, Book One, supra at 604). May be
further classified based on divisibility.
a. Divisible those that have fixed duration and
are divisible into three periods.
b. Indivisible those which have no fixed
duration. These are:
i. Death
ii. Reclusin perpetua
iii. Perpetual absolute or special
disqualification
iv. Public censure
2. Accessory penalties are those that are
deemed included in the principal penalties (Id.).
C. Based on subject matter
1. Corporal (death);
2. Deprivation of freedom (reclusion perpetua and
temporal, prision mayor and correcional, arresto
mayor and menor);
3. Restriction of freedom (destierro);
4. Deprivation of rights (disqualification and
suspension); and
5. Pecuniary (fine).
Perpetual or temporary absolute disqualification,
perpetual or temporary special disqualification, and
suspension may be principal or accessory penalties.
Examples:
1. Perpetual absolute disqualification is a principal
penalty in prevaricacion (RPC, Art. 204) and
perpetual special disqualification, in malversation
(RPC, Art. 217).
2. Temporary absolute disqualification is a principal
penalty when the accessory acts with abuse of
public functions (RPC, Art, 19[3] and Art. 58) and
temporary special disqualification, in direct bribery
(Art. 206).
62
3. Suspension is a principal penalty in rendition of
unjust interlocutory orders (RPC, Art. 206).
Bond to keep the peace is imposed only in the crime
of threats (Art. 284), either grave (Art. 282) or light
(Art. 283).
Note: It is necessary to employ legal terminology in
the imposition of penalties because of the
substantial difference in their corresponding legal
effects and accessory penalties (BOADO, supra at
217). Thus, a sentence of five years in Bilibid is
defective because it does not specify the exact
penalty prescribed in the Revised Penal Code (US
v. Avillar, G.R. Nos. 9609-11, October 2, 1914).
R.A. No. 9346,
AN ACT PROHIBITING THE IMPOSITION OF
DEATH PENALTY IN THE PHILIPPINES
In lieu of death penalty, the following shall be
imposed:
1. The penalty of reclusion perpetua, when the law
violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or
2. The penalty of life imprisonment, when the law
violated does not make use of the nomenclature
of the penalties of the Revised Penal Code (R.A.
9346, Sec. 2).
Persons convicted of offenses punished with
reclusion perpetua, or whose sentences will be
reduced to reclusion perpetua, by reason of this Act,
shall not be eligible for parole under Act No. 4103,
otherwise known as the Indeterminate Sentence
Law, as amended (R.A. 9346, Sec. 3).
ARTICLE 26
FINE WHEN AFFLICTIVE,
CORRECTIONAL OR LIGHT
Fine is: (Whether imposed as a single or as an
alternative penalty)
1. Afflictive over P6,000.00;
2. Correctional P200.00 to P6,000.00; or
3. Light penalty less than P200.00
Same basis may be applied by analogy to Bond to
keep the peace.
The rule herein does not apply where the fine
involved is in a compound penalty, that is, it is
imposed in conjunction with another penalty. In this
case, the highest penalty shall be made the basis for
computing the period for the prescription of crimes
(RPC, Art. 90).
Where the fine in question is exactly P200, under
Art. 9 it is a light felony, hence the felony involved is
a light felony; whereas under Art. 26, it is a
 San Beda College of Law
2010 Centralized Bar Operations
correctional penalty, hence the offense involved is a penalty.
less grave felony. It has been held that this
discrepancy should be resolved liberally in favor of Nature of destierro
the accused, hence Art. 9 prevails over Art. 26 Destierro is a principal, correctional and divisible
(People v. Yu Hai, G.R. No. 9598, August 15, 1956). penalty.

However, according to Justice Regalado there is no In what cases is destierro imposed?

such discrepancy. What is really in issue is the
prescription of the offense vis-a-vis the prescription
of the penalty, the former being the forfeiture of the
right of the State to prosecute the offender and the
latter being the loss of its power to enforce the
judgment against the convict.
Note: In determining the prescription of crimes,
apply Art. 9 (P200 fine is light felony). In determining
the prescription of penalty, apply Art. 26 (P200 fine
prescribes in 10 years).
1. Serious physical injuries or death under
exceptional circumstances (RPC, Art. 247);
2. In case of failure to give bond for good behavior
(RPC, Art. 284);
3. As a penalty for the concubine in concubinage
(RPC, Art. 334); and
4. In cases where after reducing the penalty by one
or more degrees, destierro is the proper penalty.
ARTICLE 28
COMPUTATION OF PENALTIES

Rules:
SECTION ONE DURATION OF PENALTIES 1. When the offender is in prison the duration of
CHAPTER THREE temporary penalties is from the day on which the
DURATION AND EFFECTS OF PENALTIES judgment of conviction becomes final.
(ARTS. 27 45)
Reason: Under Art. 24, the arrest and temporary
detention of the accused is not considered a
penalty.

Applies in cases of temporary penalties and the

ARTICLE 27 offender is under detention (under preventive
DURATION OF EACH DIFFERENT PENALTIES imprisonment).

Afflictive Examples of Temporary Penalties:

Reclusion Reclusio Prision Mayor a. Temporary absolute disqualification;
Perpetua n andTemporary b. Temporary special disqualification; and
Temporal Disqualification c. Suspension.
20 yrs and 1 12 yrs and 6 yrs and 1 day to 12
day to 40 yrs 1 day to yrs., except when 2. When the offender is not in prison the
20 yrs disqualification is an duration of penalties consisting in deprivation of
accessory penalty, in liberty is from the day that the offender is placed at
which case its the disposal of judicial authorities for the
duration is that of the enforcement of the penalty.
principal penalty
Correctional This rule applies in cases of penalties consisting
Prisin Arresto Arresto Bond to in deprivation of liberty and the offender is not in
correccional mayor Menor keep the prison.
, peace
suspensin, Examples of Penalties Consisting of Deprivation
and of Liberty:
destierro a. Imprisonment; and
b. Destierro.
6 mos. and 1 1 mo. 1 day to The period
day to 6 yrs., And 1 30 days during
3. The Duration of Other Penalties The duration
except when day to 6 which the
is from the day on which the offender commences
suspensin is mos. bond shall
to serve his sentence. Applies in cases of:
an accessory be effective
a. Penalties consisting in deprivation of liberty and
penalty, in is
the offender is undergoing preventive
which case its discretionar
imprisonment; but the offender is entitled to a
duration is y on the
deduction of full time or 4/5 of the time of his
that of the court.
detention; and
principal

63
 b. Temporary penalties and the offender is not
under detention because the offender is
released on bail.
ARTICLE 29, as amended by R.A. 10592
PERIOD OF PREVENTIVE IMPRISONMENT
DEDUCTED FROM TERM OF IMPRISONMENT
Preventive Imprisonment
It is the period of detention undergone by an
accused where the crime with which he is charged is
non-bailable or, even if bailable, he is unable to post
the requisite bail (ESTRADA, Book One, supra at
225).
These rules on preventive imprisonment apply to all
sentences regardless of the duration thereof,
including the so-called perpetual penalties as long
as they involve deprivation of liberty. It applies to
destierro (People v. Bastasa, G.R. No. L-32792,
February 2, 1979).
When is the detention prisoner entitled to the full
credit of his preventive imprisonment?
General Rule:
When the detention prisoner agrees voluntarily in
writing after being informed of the effects thereof
and with the assistance of counsel to abide by the
same disciplinary rules imposed upon convicted
prisoners.
Exceptions:
1. When they are recidivists, or have been
convicted previously twice or more times of any
crime; and
2. When upon being summoned for the execution of
their sentence they have failed to surrender
voluntarily.
Note: Habitual delinquents are included in No. 1.
No. 2 refers to convicts who failed to voluntarily
surrender to serve their penalties under a final
judgment, since this is indicative of a greater
defiance of authority. It does not refer to failure or
refusal to voluntarily surrender after the commission
of the crime.
When will he be credited only with four-fifths the
time during which he has undergone preventive
imprisonment?
If the detention prisoner does not agree to abide by
the same disciplinary rules imposed upon convicted
prisoners.
Credit for preventive imprisonment for the penalty of
reclusion perpetua shall be deducted from thirty (30)
years.
64
Whenever an accused has undergone preventive
imprisonment for a period equal to the possible
maximum imprisonment of the offense charged to
which he may be sentenced and his case is not yet
terminated, he shall be released immediately without
prejudice to the continuation of the trial thereof or
the proceeding on appeal, if the same is under
review.
Computation of preventive imprisonment for
purposes of immediate release under this paragraph
shall be the actual period of detention with good
conduct time allowance: Provided, however, That if
the accused is absent without justifiable cause at
any stage of the trial, the court may motu proprio
order the rearrest of the accused: Provided, finally,
That recidivists, habitual delinquents, escapees and
persons charged with heinous crimes are excluded
from the coverage of this Act.
In case the maximum penalty to which the accused
may be sentenced is lestierro, he shall be released
after thirty (30) days of preventive imprisonment.
Under Sec. 41 of R.A. 9344, the child in conflict with
the law shall be credited in the services of his/her
sentence with the full time spent in actual
commitment and detention.
SECTION TWO EFFECTS OF THE PENALTIES
ACCORDING TO THEIR RESPECTIVE NATURE.
ARTICLE 30
EFFECTS OF THE PENALTIES OF PERPETUAL
OR TEMPORARY
ABSOLUTE DISQUALIFICATION
1. Deprivation of the public offices and employments
which the offender may have held, even if
conferred by popular election;
2. Deprivation of the right to vote in any election for
any popular elective office or to be elected to such
office;
3. Disqualification for the offices or public
employments and for the exercise of any of the
rights mentioned; and
4. Loss of all rights to retirement pay or other
pension for any office formerly held.
Perpetual Absolute Disqualification
It is effective during the lifetime of the convict and
even after the service of the sentence.
Temporary Absolute Disqualification
It lasts during the term of the sentence, and is
removed after the service of the same.
Exceptions:
1. Deprivation of the public office or employment; and
 San Beda College of Law
2010 Centralized Bar Operations
2. Loss of all rights to retirement pay or other pension
for any office formerly held.
A plebiscite is not mentioned or contemplated in Art.
30, par. 2 (deprivation of the right to vote), hence,
the offender may vote in that exercise, subject to the
provisions of pertinent election laws at the time.
ARTICLE 31
EFFECTS OF THE PENALTIES OF PERPETUAL
OR TEMPORARY
SPECIAL DISQUALIFICATION
1. Deprivation of the office, employment, profession
or calling affected; and
2. Disqualification for holding similar offices or
employments either perpetually or during the term
of the sentence, according to the extent of such
disqualification.
ARTICLE 32
EFFECTS OF THE PENALTIES OF PERPETUAL
OR TEMPORARY SPECIAL DISQUALIFICATION
FOR THE EXERCISE OF THE RIGHT OF
SUFFRAGE
1. Deprive the offender perpetually or during the term
of the sentence of:
a.The right to vote in any popular election for any
public office; or
b.To be elected to such office.
2. Not be permitted to hold any public office during
the period of disqualification.
Disqualification is the withholding of a privilege, not
a denial of right a restriction upon the right of
suffrage or to hold office.
Purpose: To preserve the purity of elections; one
rendered infamous by conviction of felony or other
base offenses indicative of moral turpitude is unfit to
exercise such rights.
ARTICLE 33
EFFECTS OF THE PENALTIES OF SUSPENSION
FROM ANY PUBLIC OFFICE, PROFESSION, OR
CALLING, OR THE RIGHT OF SUFFRAGE
1. Disqualification from holding such office or
exercising such right or calling or right of suffrage
during the term of the sentence; and
2. If suspended from the public office, the offender
cannot hold another office having similar functions
during the period of suspension.
ARTICLE 34
CIVIL INTERDICTION
65
1. Deprivation of the rights of parental authority or
guardianship of any ward;
2. Deprivation of marital authority; and
3. Deprivation of the right to manage his property
and of the right to dispose of such property by any
act or any conveyance inter vivos.
But he can dispose of such property by will or
donation mortis causa. The law only mentioned
dispositions inter vivos (REYES, Book One, supra at
621).
A person imposed with the penalty of civil
interdiction cannot appoint an agent to manage his
property because the act of an agent is the act of
the principal. Thus, the person civilly interdicted is
doing indirectly what the law prohibits to be done
(ESTRADA, Criminal Law I, supra at 231).
Civil interdiction is imposed when the penalty is:
1. Death which is not carried out;
2. Reclusin perpetua; or
3. Reclusin temporal.
ARTICLE 35
EFFECTS OF BOND TO KEEP THE PEACE
1. The offender must present two sufficient sureties
who shall undertake that the offender will not
commit the offense sought to be prevented, and
that in case such offense be committed they will
pay the amount determined by the Court;
2. The offender must deposit such amount with the
Clerk of Court to guarantee said undertaking; or
3. The offender may be detained, if he cannot give
the bond, for a period not to exceed 6 months if
prosecuted for grave or less grave felony, or for a
period not to exceed 30 days, if for a light felony.
Bond to keep the peace is different from bail bond
which is posted for the provisional release of a
person arrested for or accused of a crime.
Imposed as a penalty in threats (RPC, Art. 284)
ARTICLE 36
PARDON; ITS EFFECTS
Effects of pardon by the president:
1. A pardon shall not restore the right to hold public
office or the right of suffrage.
Exception: When any or both such rights are
expressly restored by the terms of the pardon.
2. It shall not exempt the culprit from the payment of
the civil liability.
Limitations upon the exercise of the pardoning
power:
1. The power can be exercised only after conviction
by final judgment (CONST. Art. VII, Sec. 19);
2. Such power does not extend to cases of and accessories.
impeachment (Cristobal v. Labrador, G.R. No. In adultery and
47941, December 7, 1940); and concubinage, pardon
3. No pardon, amnesty, parole or suspension of must include both
sentence for violation of election laws, rules, and offenders.
regulations shall be granted by the President As to whether it can be conditional
without the favorable recommendation of the May be absolute or Cannot validly be made
COMELEC. conditional ifsubject to a condition.

General Rule: When the principal penalty is ARTICLE 37

remitted by pardon, only the effect of that principal COSTS
penalty is extinguished, but not the accessory
penalties attached to it. Costs or costs of suit
These are the expenses of litigation allowed and
Exception: When an absolute pardon is granted regulated by the Rules of Court to be assessed
after the term of imprisonment has expired, it against or to be recovered by a party in litigation (Id
removes what is left of the consequences of at 625).
conviction (REYES, Book One, supra at 624).
The following are included in costs:
Pardon by the 1. Fees; and
Pardon by the Chief
Offended Party (Art. 2. Indemnities, in the course of judicial proceedings.
Executive (Art. 36)
23)
As to the crime covered Costs are chargeable to the accused only in cases
Can extend to any Applies only to crimes of conviction. In case of acquittal, the costs are de
crime, unless otherwise against chastity under officio, meaning each party bearing his own
provided by or subject the RPC and marital expenses.
to conditions in the rape
Constitution or the laws No costs shall be allowed against the Republic of
As to the effect on civil liability the Philippines, unless otherwise provided by law
Cannot affect the civil The offended party can (RULES OF COURT, Rule 142, Sec. 1).
liability ex delicto of the waive the civil liability.
offender The payment of costs is a matter that rests entirely
As to extinguishment of criminal liability upon the discretion of courts (Bacolod-Murcia
Extinguishes criminal Does NOT extinguish Planters Association, Inc. v. Chua, G.R. No. L-1662,
liability criminal liability September 27, 1942).

Although it may
constitute a bar to the
prosecution of the
offender in seduction, ARTICLE 38
abduction and acts of PECUNIARY LIABILITIES
lasciviousness by the
valid marriage of the What are the pecuniary liabilities of persons
victim and the offender, criminally liable?
and in adultery and They are, in the following order: (RIFC)
concubinage, by the 1. Civil
express or implied a. The reparation of the damage caused;
pardon by the offended b. Indemnification of the consequential damages;
spouses. 2. Pecuniary
When granted a. Fine;
Can be extended only Can be validly granted b. Costs of proceedings.
after conviction by final only before the
judgment of the institution of the When Article 38 is applicable
accused criminal action In case the property of the offender should not be
To whom granted sufficient for the payment of all his pecuniary
To any or all of the In seduction, abduction liabilities.
accused and acts of
lasciviousness, it The courts cannot disregard the order of payment
benefits the co- (Domalaon v. Yap, C.A., 59 O.G. 6675).
principals, accomplices

66
 San Beda College of Law
2010 Centralized Bar Operations
ARTICLE 39 4. If the penalty Subsidiary penalty shall
SUBSIDIARY PENALTY imposed is not consist in the same
As Amended by R.A. No. 10159 to be executed deprivations as those of the
by confinement, principal penalty, under the
Subsidiary penalty is a subsidiary personal liability but of fixed same rules as nos. 1, 2 and
to be suffered by the convict who has no property duration. 3 above.
with which to meet the fine.
In case the financial circumstances of the convict
New Basis for Daily Computation of Subsidiary should improve, he shall pay the fine,
Penalty notwithstanding the fact that the convict suffered
He shall be subject to a subsidiary personal liability subsidiary personal liability therefor.
at the rate of one day for each amount equivalent to
the highest minimum wage rate prevailing in the When the penalty prescribed for the offense is
Philippines at the time of the rendition of judgment of imprisonment, it is the penalty actually imposed by
conviction by the trial court. the Court, not the penalty provided for by the Code,
which should be considered in determining whether
Note: This amended the previous rate of one (1) or not subsidiary penalty should be imposed.
day for each eight (8) pesos.
The same deprivations as those of which the
Subsidiary penalty shall be proper only if the principal penalty consists
accused has no property with which to pay the fine If the penalty is imprisonment, the subsidiary penalty
and not as a matter of choice on his part by opting to must be imprisonment also. If the penalty imposed is
go to jail instead of paying. destierro, the subsidiary penalty is also destierro
(REYES, Book One, supra at 636).
Subsidiary penalty is not an accessory penalty,
hence it must be specifically imposed by the court in No subsidiary penalty shall be imposed where:
its judgment, otherwise the accused cannot be 1. The penalty imposed is higher than prisin
made to serve the corresponding subsidiary correccional or 6 years;
imprisonment (Ramos v. Gonong, G.R. No. L- 2. Additional penalty for habitual delinquency should
42010, August 31, 1961). be included in determining whether or not
subsidiary penalty should be imposed;
3. For non-payment of reparation or indemnification;
4. For non-payment of cost;
5. Where the penalty imposed is a fine and another
penalty without fixed duration, like censure (Id at
637); and
6. The subsidiary penalty, though properly imposable
Rules as to subsidiary liability is not expressly stated in the judgment;
Penalty Imposed Subsidiary Penalty 7. For non-payment of taxes in case of insolvency
(People v. Balagtas, G.R. No. L-10210, July 29,
1. Prisin Subsidiary imprisonment is
not to exceed 1/3 of the 1959).
correccional or
arresto AND fine term of the sentence, and in
no case to continue for Note: The rules on subsidiary penalty in Art. 39 are
more than one year. applicable to crimes punishable by special laws by
Fraction or part of a day, not force of Art. 10 of the Code.
counted.
2. Fine only Subsidiary imprisonment: There is no subsidiary penalty in cases of censure
a. not to exceed 6 months since it has no fixed duration and is not to be
if the culprit is prosecuted executed by confinement (REYES, Book One, supra
for grave or less grave at 635).
felony, and

b. not to exceed 15 days if SECTION THREE PENALTIES IN WHICH

prosecuted for light felony. OTHER ACCESSORY PENALTIES ARE
INHERENT
3. Higher than No subsidiary
prisin imprisonment.
ARTICLES 40 44
correccional
OUTLINE OF ACCESSORY PENALTIES
INHERENT IN PRINCIPAL PENALTIES

67
 (There can be no forfeiture when there is no
1. Death, when not executed by reason of criminal case yet filed).
commutation or pardon: 2. The proceeds and instruments or tools of the
a. Perpetual absolute disqualification; and crime are confiscated and forfeited in favor of the
b. Civil interdiction during 30 years, if not expressly Government.
remitted in the pardon. 3. Property of a third person not liable for the offense
2. Reclusin perpetua and reclusin temporal: is not subject to confiscation and forfeiture.
a. Civil interdiction for life or during the sentence; Note: The statement prevails notwithstanding the
and fact that the third person who is the owner of the
b. Perpetual absolute disqualification, unless property could have been convicted if indicted with
expressly remitted in the pardon of the principal the accused (People v. Delgado, 9 CAR [2s], 960,
penalty. 979-980).
3. Prisin mayor: 4. Property not subject of lawful commerce (whether
a. Temporary absolute disqualification; and it belongs to the accused or to third person) shall
b. Perpetual special disqualification from suffrage, be destroyed.
unless expressly remitted in the pardon of the
principal penalty. The confiscation and forfeiture of the proceeds and
4. Prisin correccional: instruments of a crime is an accessory penalty.
a. Suspension from public office, profession or Thus, where the penalty imposed did not include the
calling; and confiscation of the property, the confiscation or
b. Perpetual Special Disqualification from suffrage, forfeiture of the property would be an additional
if the duration of imprisonment exceeds 18 penalty and would tantamount to an increase of the
months, unless expressly remitted in the pardon penalty already imposed, thereby placing the
of the principal penalty. accused in double jeopardy (People v. Sanchez,
There is perpetual special disqualification from G.R. No. L-9768, June 21, 1957).
suffrage, only when the duration of the Articles which are forfeited, when the order or
imprisonment exceeds 18 months. forfeiture is already final, cannot be returned even in
5. Arresto suspension of the right to hold office and case of an acquittal (Commissioner of Customs v.
the right of suffrage during the term of the Encarnacion, G.R. No. L-7598, July 26, 1954).
sentence.
The provisions of Art. 45 cannot apply when:
Note: The Code does not provide for any accessory 1. The instruments belong to innocent third parties;
penalty for destierro. 2. Such properties have not been placed under the
jurisdiction of the court because they must be
Reclusion presented in evidence and identified in judgment
Life Imprisonment
Perpetua (US v. Filart, G.R. No. 10263, March 13, 1915);
Has a specific Has no definite term and
duration of 20 years 3. When it is legally or physically impossible.
and 1 day to 40
years This accessory penalty presupposes a judgment of
Imposable on Imposable on crimes conviction. However, even if the accused is
felonies punished by punishable by acquitted on reasonable doubt, but the instruments
the RPC special laws or proceeds are contraband, the judgment of
Carries with it Does not carry with acquittal shall order their forfeiture for appropriate
accessory penalties it accessory disposition (People v. Salanguit, G.R. No. 133254-
penalties 55, April 19, 2001).

It is only when death penalty is not executed by

reason of commutation or pardon that the accessory CHAPTER FOUR
penalty provided for in Art. 40 of the RPC shall be APPLICATION OF PENALTIES
suffered by the convict. (ARTS. 46-72)

ARTICLE 45
CONFISCATION AND FORFEITURE OF
THE PROCEEDS OF THE CRIME
Outline of the provisions of this article:
1. Every penalty imposed carries with it the forfeiture
of the proceeds of the crime and the instruments
or tools used in the commission of the crime
SECTION ONE RULES FOR APPLICATION OF
PENALTIES TO THE PERSONS CRIMINALLY
LIABLE AND FOR THE GRADUATION OF THE
SAME
ARTICLE 46

68
 San Beda College of Law
2010 Centralized Bar Operations
PENALTY TO BE IMPOSED UPON PRINCIPALS
IN GENERAL
General rule: The penalty prescribed by law in
general terms shall be imposed upon the principals
for a consummated felony.
Exception: When the penalty to be imposed upon
the principal in frustrated or attempted felony is fixed
by law.
Graduation of penalties:
1. By degrees refers to:
a. Stages of execution (consummated, frustrated,
or attempted); and
b. Degree of the criminal participation of the
offender (whether as principal, accomplice or
accessory).
2. By periods refers to the proper period of the
penalty which should be imposed when
aggravating or mitigating circumstances attend the
commission of the crime (REYES, Book One,
supra at 650).
ARTICLE 47
CASES WHEREIN THE DEATH PENALTY SHALL
NOT BE IMPOSED
No longer of any force or effect because the
substantive provisions thereof being inconsistent
with R.A 9346, while the procedural measures is
superseded by the present revised Rules of Court.
ARTICLE 48
COMPLEX CRIMES
Plurality of Crimes
It consists in the successive execution, by the same
individual, of different criminal acts, upon any of
which no conviction has yet been declared.
Kinds:
1. Real or material plurality different crimes in
law, as well as in the conscience of the offender;
the offender shall be punished for each and every
offense that he committed.
2. Formal or ideal plurality only one criminal
liability (ESTRADA, Book One, supra at 247).
Three groups under the formal type:
a. When the offender commits any of the complex
crimes in Art. 48;
b. When the law specifically fixes a single penalty
for two or more offenses committed (Special
Complex Crimes); and
c. When the offender commits continuous crimes.
I. Complex Crimes Under Article 48
A. Concept
69
1. In complex crime, although 2 or more crimes
are actually committed, they constitute only
one crime in the eyes of the law as well as in
the conscience of the offender.
2. The offender has only one criminal intent,
hence there is only one penalty imposed for
the commission of a complex crime (People v.
Hernandez, G.R. No. L-6025-26, July 18,
1956).
Note: When in obedience to an order several
accused simultaneously shot many persons,
without evidence how many are killed, there is
only a single offense, there being a single
criminal impulse (People v. Lawas, G.R. No.
L-7618, June 30, 1995).
When a single burst from automatic gun
resulted in the numerous killings from a
number of bullets fired, there is no complex
crime but there are as many offenses as the
numbers of victims of the bullets fired in view
of the special characteristic or mechanism of
automatic machine guns and the offender who
knew this fact (People v. Pineda, G.R. No. L-
26222 July 21, 1976).
B. Two kinds of complex crimes:
1. Compound crime (delito compuesto) a
single act constitutes 2 or more grave or less
grave felonies.
Requisites:
a. That only a single act is performed by the
offender; and
b. That the single act produces:
i. Two or more grave felonies, or
ii. One or more grave and one or more less
grave felonies, or
iii. Two or more less grave felonies.
Light felonies produced by the same act
should be treated and punished as separate
offenses or may be absorbed by the grave
felony (People v. Turla, G.R. No. 26388,
February 14, 1927).
When the crime is committed by force of
violence, slight physical injuries are absorbed
such as in direct assault and rape. Reason:
the slight physical injuries are the necessary
consequence of the force or violence inherent
in the crimes of direct assault and rape
(People v. Aplado, G.R. No. 31075, August
12, 1929).
Art. 48 speaks of two or more grave or less
grave felonies resulting from a single act,
 which excludes crimes punishable by special
laws (People v. Araneta, G.R. No. 24622,
January 28, 1926).
2. Complex crime proper (delito complejo) an
offense is a necessary means for committing
the other.
The first offense must be consummated.
Requisites:
a. That at least two offenses are committed;
b. That one or some of the offenses must be
necessary to commit the other
Note: The phrase necessary means has
been interpreted not to mean indispensable
means, because if it did, then the offense as
necessary means to commit another
would be an indispensable element of the
latter and would be an ingredient thereof
(Dissenting Opinion, People v. Hernandez,
G.R. No. L-6025-26, July 18, 1956); and
c. That both or all of the offenses must be
punished under the same statute.
C. No complex crime in the following cases:
1. In case of continuous crimes;
2. When one offense is committed to conceal the
other;
3. When the other crime is an indispensable part
or an element of the other offenses;
4. Where one of the offenses is penalized by a
special law; and
5. When the provision provides for a two-tiered
penalty, e.g. usurpation of property (RPC, Art.
312), malicious procurement of a search
warrant (RPC, Art 129), bribery (RPC, Art 210
par 1), maltreatment of prisoners (RPC, Art
235).
Note: Art. 48 is intended to favor the culprit.
Reason: The offender is deemed less perverse than
when he commits said crimes thru separate and
distinct acts (People v. Hernandez, G.R. No. L-
6025-26, July 18, 1956).
The penalty for complex crime is the penalty for the
most serious crime, the same to be applied in its
maximum period.
When two crimes produced by a single act are
respectively within the exclusive jurisdiction of two
courts of different jurisdiction, the court of higher
jurisdiction shall try the complex crime (Angeles,
etc. v. Jose, et. al., G.R. No. L-6494, November 24,
1954).
If different crimes resulting from one single act are
punished with the same penalty, the penalty for any
70
one of them shall be imposed, the same to be
applied in the maximum period.
When 2 felonies constituting a complex crime are
punishable by imprisonment and fine, respectively,
only the penalty of imprisonment should be
imposed.
Reason: Fine is not included in the list of penalties
in the order of severity, and it is the last in the
graduated scales in Art. 71 of the RPC (People v.
Yongco, C.A- G.R. No. 18252-CR, January 26,
1977).
When a complex crime is charged and one offense
is not proven, the accused can be convicted of the
other (People v. Maribung, G.R. No. L-47500, April
29, 1987).
No complex crime of Estafa Thru Falsification of
Private Document
There is no complex crime of estafa thru falsification
of private document as both crimes require damage
as an element which if used for one renders the
other incomplete, hence the query is as to which
crime was committed first.
If the falsification of a private document is committed
as a means to commit estafa, the proper crime to be
charged is falsification; If the estafa can be
committed without the necessity of falsifying a
document, the proper crime to be charged is estafa
(Batulanon v. People, G.R. No. 139857, September
15, 2006).
Complex crime of Abduction with Rape
If at the outset, the accused took a woman away
against her will and with lewd designs on his part,
and he thereafter raped her, this would clearly be
the complex crime of abduction with rape (People v.
Oso, G.R. No. 42571, October 10, 1935).
On the other hand, the rule has been that if he had
no lewd designs at the time of the forcible taking of
the victim, but the taking advantage later when the
victim was in his custody he raped her, he
committed two separate crimes of kidnapping, a
crime against personal liberty, and rape, then a
crime against chastity (People v. Quitain,,G.R. No.
L-8227, May 25, 1956).
Subsequent acts of intercourse, after forcible
abduction with rape, are separate acts of rape for
even while the first act of rape was being performed,
the crime of forcible abduction was already
consummated, so that each of the three succeeding
rapes cannot be complexed with forcible abduction
(People v. Jose, No. L-282232, Feb. 6, 1971).
No complex crime of Rebellion with Murder
 San Beda College of Law
2010 Centralized Bar Operations
There is no complex crime of rebellion with murder,
arson, robbery, or other common crimes (People v.
Geronimo, et.al., G.R. No. 8936, October 23, 1956).
Complex crime of Kidnapping with Murder
Where the victim was kidnapped for the purpose of
extorting ransom under pain of death, and he was
later killed when no such ransom was paid, the
complex crime of kidnapping with murder was
committed (REGALADO, supra at 189).
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code.
Article 48 is a procedural device allowing single
prosecution of multiple felonies falling under either
of two categories: (1) when a single act constitutes
two or more grave or less grave felonies (thus
excluding from its operation light felonies; and (2)
when an offense is a necessary means for
committing the other. The legislature crafted this
procedural tool to benefit the accused who, in lieu of
serving multiple penalties, will only serve the
maximum of the penalty for the most serious crime.
In contrast, Article 365 is a substantive rule
penalizing not an act defined as a felony but the
mental attitude x x x behind the act, the dangerous
recklessness, lack of care or foresight x x x, a
single mental attitude regardless of the resulting
consequences. Thus, Article 365 was crafted as one
quasi-crime resulting in one or more consequences.
Article 48 is incongruent to the notion of quasi-
crimes under Article 365. It is conceptually
impossible for a quasi-offense to stand for (1) a
single act constituting two or more grave or less
grave felonies; or (2) an offense which is a
necessary means for committing another.
This ruling secures for the accused facing an Article
365 charge a stronger and simpler protection of their
constitutional right under the Double Jeopardy
Clause. True, they are thereby denied the beneficent
effect of the favorable sentencing formula under Art.
48, but any disadvantage thus caused is more than
compensated by the certainty of non-prosecution for
quasi-crime effects qualifying as light offenses (or,
as here, for the more serious consequence
prosecuted belatedly). it is so minded, Congress can
re-craft Article 365 by extending to quasi-crimes the
sentencing formula of Article 48 so that only the
most severe penalty shall be imposed under a single
prosecution of all resulting acts, whether penalized
as grave, less grave or light offenses. This will still
keep intact the distinct concept of quasi-offenses
(Ivler v. San Pedro and Ponce G.R. No. 172716,
November 17, 2010).
Rules in Art. 48 are NOT applicable:
1. When the crimes subject of the case have
common elements;
71
2. When the crimes involved are subject to the rule
of absorption of one crime by the other;
3. Where the two offenses resulting from a single act
are specifically punished as a single crime, such
as less serious physical injuries with serious
slander of deed, since this is punished under Art.
265 par. 2, as the single crime of less serious
physical injuries with ignominy;
4. In special complex crimes or composite crimes;
and
5. When the crimes involved cannot be legally
complexed, viz.:
a. Malicious obtention or abusive service of search
warrant (Art. 129) with perjury;
b. Bribery (Art. 210) with infidelity in the custody of
prisoners;
c. Maltreatment of prisoners (Art. 235) with serious
physical injuries;
d. Usurpation of real rights (Art. 312) with serious
physical injuries; and
e. Abandonment of persons in danger (Art. 275)
and crimes against minors (Arts. 276 to 278)
with any other felony.
II. Special Complex Crimes those which are
treated as single indivisible offenses although
comprising more than one specific crime and with
specific penalty.
These refer to two or more crimes that the law
treats as a single indivisible and unique offense
for being the product of a single criminal impulse
(People v. Dela Cruz, G.R. No. 183091, June 19,
2013).
Examples:
1. Rape with homicide;
The homicide must always be consummated,
otherwise, separate offenses. The rape may
either be consummated or attempted.
Note: R.A. 8353 provides that when the rape is
attempted and a homicide is committed by
reason or on the occasion thereof, the penalty
shall be reclusion perpetua to death.
When by reason or on the occasion of the rape,
homicide is committed, the penalty shall be
death. The legislative intent on the import of the
phrase on the occasion of the rape to refer to a
killing that occurs immediately before or after, or
during the commission itself of the attempted or
consummated rape, where the victim of the
homicide may be a person other than the rape
victim herself for as long as the killing is linked
to the rape, became evident (People v.
Villaflores, G.R. No. 184926, April 11, 2012).
2. Kidnapping with homicide;
3. Kidnapping with rape;
 Kidnapping with rape is different from abduction It is made up of two or It is made up of two or
with rape. In the latter, there is lewd design more crimes being more crimes which are
(People v. Jose, G.R. No. L-28232, Feb. 6, punished in distinct considered only as
1971). provisions of the components of a single
4. Robbery with homicide; and Revised Penal Code but indivisible offense being
Additional homicide is not aggravating. alleged in one punished in one
5. Robbery with rape, information either provision of the Revised
Additional rape is not aggravating. because they were Penal Code.
brought about by a
Note: There is no complex crime of Arson with single felonious act or
(Multiple) Homicide. Accordingly, in cases where because one offense is a
both burning and death occur, in order to determine necessary means for
what crime/crimes was/were perpetrated whether committing the other
arson, murder or arson and homicide/murder, it is offense or offenses.
de rigueur to ascertain the main objective of the
malefactor: As to Penalty
a. If the main objective is the burning of the building
or edifice, but death results by reason or on the Penalty for the most It is the penalty
occasion of arson, the crime is simply arson, and serious crime shall be specifically provided for
the resulting homicide is absorbed; imposed and in its the special complex
b. If, on the other hand, the main objective is to kill a maximum period. crime that shall be
particular person who may be in a building or applied according to the
edifice, when fire is resorted to as the means to rules on imposition of
accomplish such goal the crime committed is the penalty.
murder only; and lastly
c. If the objective is, likewise, to kill a particular Note: One information should be filed when a
person, and in fact the offender has already done complex crime is committed (People v. Estipona,
so, but fire is resorted to as a means to cover up G.R. No. 46978, November 14, 1940).
the killing, then there are two separate and distinct
crimes committed homicide/murder and arson III. Continuous crime a single crime, consisting of
(People of the Philippines v. Edna Malngan G. R. a series of acts, but all arising from one criminal
No. 170470, September 26, 2006). resolution; length of time in the commission is
immaterial (REYES, Book One, supra at 683).
When the crimes involved cannot be legally
complexed, viz: Requisites:
1. Malicious obtention or abusive service of search 1.Multiplicity of acts;
warrant (RPC, Art. 129) with perjury; 2.Unity of criminal purpose or intent; and
2. Bribery (RPC, Art. 210) with infidelity in the 3.Unity of criminal offense violated.
custody of prisoners;
3. Maltreatment of prisoners (RPC, Art. 235) with Not a complex crime because the offender does
serious physical injuries; not perform a single act, but a series of acts, and
4. Usurpation of real rights (RPC, Art. 312) with one offense is not a necessary means for
serious physical injuries; and committing the other.
5. Abandonment of persons in danger (RPC, Art.
275) and crimes against minors (RPC, Arts. 276- In determining venue, a continued, continuous or
278) with another felony. continuing crime is different from a transitory
crime (moving crime) in the latter case, criminal
action may be instituted and tried in the court of
the municipality, city or province wherein any of
Special Complex
Ordinary Complex the essential ingredients thereof took place (Id at
Crime or Composite
Crime 687).
Crime
As to their Concept Real or Material
Continued Crime
Plurality
There is a series of There is a series of
acts performed by the acts performed by the
offender. offender.

72
 San Beda College of Law
2010 Centralized Bar Operations

Each act performed by The different acts Note: For Articles 50-57 and 60, refer to Art. 61
the offender constitute only one herein provided.
constitutes a separate crime, all of the acts
crime, each act is performed arise from ARTICLE 58
generated by a one criminal ADDITIONAL PENALTY TO BE IMPOSED UPON
criminal impulse. resolution. CERTAIN ACCESSORIES

Public officers who help the author of the crime by

Note: A continued/continuing crime is not a
complex crime because the offender in
continued/continuing crime does not perform a
single act, but a series of acts, and one offense is
not a necessary means for committing the other
(Id. at 686).
ARTICLE 49
PENALTY TO BE IMPOSED UPON THE
PRINCIPALS WHEN THE CRIME COMMITTED IS
DIFFERENT FROM THAT INTENDED
Rules:
1. If the penalty for the felony committed be higher
than the penalty for the offense which the accused
intended to commit, the lower penalty shall be
imposed in its maximum period.
2. If the penalty for the felony committed be lower
than the penalty for the offense which the accused
intended to commit, the lower penalty shall be
imposed in its maximum period.
Art. 49 applies only when there is a mistake in the
identity of the victim of the crime, and the penalty for
the crime committed is different from that for the
crime intended to be committed. Also, it is applicable
only when the intended crime and the crime actually
committed are punished with different penalties.
It does not apply to abberatio ictus because in this
case, there is complex crime committed under Art.
48: the crime intended to be committed and the
crime actually committed (People v. Guillen, G.R.
No. L-1477, January 18, 1950).
It also does not apply to praeter intentionem
because in this case, the crime befalls the same
person. Art. 49 has no application to cases where a
more serious consequence not intended by the
offender befalls the same person (People v.
Albuquerque, G.R. No. 38773, December 19, 1933).
misusing their office and duties shall suffer the
additional penalties of:
1. Absolute perpetual disqualification, if the principal
offender is guilty of a grave felony; or
2. Absolute temporary disqualification if the principal
offender is guilty of less grave felony.
This article applies only to public officers who
abused their public functions.
ARTICLE 59
PENALTY TO BE IMPOSED IN CASE OF
FAILURE TO COMMIT THE CRIME BECAUSE
THE MEANS EMPLOYED OR THE AIMS SOUGHT
ARE IMPOSSIBLE
Impossible Crime
The penalty for impossible crime is arresto mayor
(imprisonment of 1 month and 1 day to 6 months) or
fine ranging from 200-500pesos.
Basis for the imposition of proper penalty:
1. Social danger; and
2. Degree of criminality shown by the offender
He who attempts to commit a light felony of
impossible materialization may be punished under
this Article as the law speaks of offense or crime,
which include light felony (REYES, Book One, supra
at 698).
ARTICLE 60
EXCEPTIONS TO RULES ESTABLISHED IN
ARTICLES 50 TO 57
Arts. 50-57, which refers to the rules regarding
graduating penalties shall not apply if:
1. The law expressly prescribes the penalty provided
for frustrated or attempted felony; or
2. The law expressly prescribes the penalty to be
imposed upon accomplices or accessories.

Article 49 Article 48 ARTICLE 61

RULES OF GRADUATING PENALTIES
Lesser penalty is Penalty for the more
imposed, to be applied or most serious crime According to Arts. 50-57, the penalty prescribed by
in maximum periods. shall be imposed, to law for the felony shall be lowered by one or two
be applied in its degrees, as follows:
maximum period. 1. For the principal in frustrated felony one degree
lower;

73
2. For the principal in attempted felony two
degrees lower;
3. For the accomplice in consummated felony one
degree lower; and
4. For the accessory in consummated felony two
degrees lower;
Diagram of the application of Arts. 50- 57:
Consumm
Frustrated Attempted
ated
Principal 0 1 2 of the crime of slight illegal detention (RPC, Art.
Accomplice 1 2 3 268).
Accessory 2 3 4
In this diagram, 0 represents the penalty prescribed
by law in defining a crime, which is to be imposed on
the principal in a consummated offense, in
accordance with the provisions of Art. 46. The other
figures represent the degrees to which the penalty
must be lowered, to meet the different situations
anticipated by law.
Bases for the determination of the extent of
penalty to be imposed under the RPC:
1. Stage reached by the crime in its development
(either attempted, frustrated or consummated);
2. Participations therein of the persons liable; and
3. Aggravating or mitigating circumstances which
attended the commission of the crime.
Degree
It is one entire penalty, one whole penalty or one
unit of the penalties enumerated in the graduated
scales provided for in Art. 71.
When there is mitigating or aggravating
circumstance, the penalty is lowered or increased by
period only.
Exception: When the penalty is divisible and there
are two or more mitigating and without aggravating
circumstances, in which case the penalty is lowered
by degree.
Period
It is one of the three equal portions, called minimum,
medium and maximum, of a divisible penalty.
Exceptions to the rules established in Arts. 50 to
57:
Arts. 50 to 57 shall not apply to cases where the law
expressly prescribes the penalty for a frustrated or
attempted felony, or to be imposed upon
accomplices or accessories (RPC, Art. 60).
General Rule: An accomplice is punished by a
penalty one degree lower than the penalty imposed
upon the principal.
74
Exceptions:
The following accomplices are punished with the
same penalty imposed upon the principal:
1. The ascendants, guardians, curators, teachers
and any person who by abuse of authority or
confidential relationship, shall cooperate as
accomplices in the crimes of rape, acts of
lasciviousness, seduction, corruption of minors,
white slave trade or abduction (RPC, Art. 346);
and
2. One who furnished the place for the perpetration
When penalty prescribed is single and indivisible
the penalty next lower in degree shall be that
immediately following that indivisible penalty in the
respective graduated scale in Article 71.
If the penalty prescribed by the Code consists in
three periods, corresponding to different divisible
penalties, the penalty next lower in degree is the
penalty consisting in the three periods down in the
scale.
If the penalty prescribed by the Code consists in two
periods, the penalty next lower in degree is the
penalty consisting in two periods down in the scale.
If the penalty prescribed by the Code consists in
only one period, the penalty next lower in degree is
the next period down in the scale.
Mitigating and aggravating circumstances are
disregarded in the application of the rules for
graduating penalties.
Example: (Note the difference between Period
and Degree when referred to in Art. 61)
When the penalty prescribed for the crime is
composed of one or two indivisible penalties and the
maximum period of another divisible penalty, the
penalty next lower in degree shall be composed of
the medium and minimum periods of the proper
indivisible penalty and the maximum period of that
immediately following in the said respective
graduated scale (RPC, Art. 61, par. 3).
Reclusion temporal in its minimum period to
reclusion perpetua is an example of the maximum of
divisible penalty and indivisible penalty. One degree
lower is prision mayor in its maximum period to
reclusion temporal in its minimum and medium
periods.
Death
Reclusion Perpetua One indivisible penalty
(RP) and the maximum of RT
Reclusion Temporal
(RT) Penalty for the principal
 San Beda College of Law
2010 Centralized Bar Operations
-maximum in consummated (Id. at 705)
murder.
Reclusion Temporal One degree lower is
(RT) PMa in its maximum SECTION TWO RULES FOR THE APPLICATION
-medium period to RT in its OF PENALTIES WITH REGARD TO THE
-minimum minimum and medium MITIGATING AND AGGRAVATING
Prision Mayor (PMa) periods CIRCUMSTANCES, AND HABITUAL
-maximum DELINQUENCY
Penalty for accomplice;
or penalty for principal
in frustrated murder ARTICLE 62
Prision Mayor (PMa) EFFECTS OF THE ATTENDANCE OF MITIGATING
-medium OR AGGRAVATING CIRCUMSTANCES AND OF
-minimum HABITUAL DELIQUENCY
(REYES, Book One, supra at 704)
Rules regarding aggravating and mitigating
Note: Death is included in the above example only circumstances:
to show the scale of penalties. However, pursuant to 1. Aggravating circumstances which (a) in
RA 9346, death penalty can no longer be imposed. themselves constitute a crime especially punished
by law or which (b) are included by the law in
When the penalty prescribed for the crime is defining a crime and prescribing the penalty
composed of several periods, corresponding to therefor are not to be taken into account to
different divisible penalties, the penalty next lower in increase the penalty.
degree shall be composed of the period immediately Maximum penalty shall be imposed:
following the minimum prescribed and of the two a. When in the commission of the crime,
next following, which shall be taken from the penalty advantage was taken by the offender of his
prescribed if possible; otherwise from the penalty public position;
immediately following in the above mentioned b. If the offense was committed by any person who
respective graduated scale (RPC, Article 61, par. 4). belongs to an organized/syndicated crime
group.
An example of a penalty composed of several 2. The preceding rule applies with respect to
periods corresponding to different divisible penalties aggravating circumstances which are inherent in
is prision mayor (PMa) in its maximimum period to the crime.
reclusion temporal (RT) in its minimum and medium 3. Aggravating or mitigating circumstances which
periods. arise from:
a. The moral attributes of the offender;
In the range of penalty from PMa maximum to RT in b. From his private relations from the offended
its minimum and maximum, the minimum period is party; or
PMa in its maximum period, the medium period is c. From any other personal cause, serve to
RT minimum and the maximum is RT medium. aggravate or mitigate the liability of the
principals, accomplices and accessories as to
In lowering the penalty by one degree, count three whom such circumstances are attendant.
periods down and that is equivalent to one degree 4. The circumstances which consist in:
lower. a. Material execution of the act, or
b. The means employed to accomplish it, shall
Death serve to aggravate or mitigate the liability only of
RP those persons who had knowledge of them at
RT -maximum the time of the execution of the act or their
cooperation therein.
-medium MAXIMUM 5. Additional penalty for habitual delinquency:
-minimum MEDIUM a.Upon 3rd conviction culprit shall be sentenced
PMa -maximum MINIMUM to the penalty provided by law for the last crime
PMa -medium of which he is found guilty and to the additional
-minimum ONE penalty of prision correccional in its medium and
DEGREE maximum periods.
LOWER b.Upon a 4th conviction the culprit shall be
Prision Correccional
sentenced to the additional penalty of prision
(PC) -maximum
mayor in its minimum and medium periods.
c.Upon 5th or additional conviction the culprit
-medium shall be sentenced to the additional penalty of
-minimum

75
 prision mayor in its maximum period to As to the crimes committed
reclusion temporal in its minimum period. The crimes are It is sufficient that the
Total of the two penalties shall not exceed 30 years. specified. accused on the date of
his trial, shall have
Effects: been previously
1. Aggravating circumstances (generic and specific) convicted by final
have the effect of increasing the penalty, without judgment of another
however exceeding the maximum period provided crime embraced in the
by law. same title.
2. Mitigating circumstances have the effect of As to the period of time the crimes are
diminishing the penalty. committed
3. Habitual delinquency has the effect, not only of The offender is found No period of time
increasing the penalty because of recidivism guilty within ten years between the former
which is generally implied in habitual delinquency, from his last release or conviction and the last
but also of imposing an additional penalty. last conviction. conviction.
As to the number of crimes committed
Requisites of habitual delinquency: (ConCom10) The accused must be The second offense is
1. That the offender had been convicted of any of found guilty the third for an offense found in
the crimes of (FRETSeL) time or oftener of the the same title.
a. Falsification, crimes specified.
b. Robbery,
c. Estafa,
d. Theft or As to their effects
e. Serious or less serious physical injuries; An additional penalty If not offset by a
2. That after conviction or after serving his sentence, is also imposed. mitigating
he again committed, and, within 10 years from his circumstance, it serves
last release of first conviction, he was again to increase the penalty
convicted of any of the said crimes for the second only to the maximum
time; and
3. That after his conviction of, or after serving A convict can be a habitual delinquent without being
sentence for the second offense, he again a recidivist when no two of the crimes committed are
committed, and, within 10 years from his last embraced in the same title of the RPC.
release or last conviction, he was again convicted
of any of said offenses, the third time or oftener. The imposition of additional penalty for habitual
delinquency is constitutional because it is neither an
Illustration: ex post facto law nor does its imposition constitute
A was convicted of the following crimes: double jeopardy since it is not imposed for the same
Offense Date of Date of Date of offense but for the moral depravity of the accused
Commission Conviction Release (People v. Montera, G.R. No. 34431, August 11,
1931).
Theft Aug 1914 April 1915 Sept 1916
Estafa Nov 1920 April 1923 April 1925 ARTICLE 63
Robbery July 1932 April 1934 RULES FOR THE APPLICATION OF INDIVISIBLE
PENALTIES
As regards the estafa committed in Nov 1920, the
starting point is the date of the last release or Sept Imposable penalty
1916 in the crime of theft and in such case, there is It is the penalty that will be imposed after applying
only a difference of 7 years since the period within the RPC and ISL.
which we should count the 10 year-rule is from the
date of last release to the date of conviction (April Prescribed penalty
1923) (REYES, Book One, supra at 716). It is the penalty prescribed by the RPC after
considering the mitigating and aggravating
Subsequent crime must be committed after circumstances.
conviction of former crime (People v. Ventura, G.R.
No. 35194, August 27, 1931). Outline of the rules:
1. When the penalty is single indivisible, it shall be
In determining the courts jurisdiction, additional applied regardless of any mitigating (except if
penalty is NOT considered. privilege mitigating) or aggravating circumstances.
2. When the penalty is composed of two indivisible
Habitual penalties, the following rules shall be observed:
Recidivism
Deliquency

76
 San Beda College of Law
2010 Centralized Bar Operations
a. When there is only one aggravating
circumstance, the greater penalty shall be
imposed.
b. When there is neither mitigating nor aggravating
circumstances, the lesser penalty shall be
imposed.
c. When there is a mitigating circumstance and no
aggravating circumstance, the lesser penalty
shall be imposed.
d. When both mitigating and aggravating
circumstances are present, the court shall allow
them to offset one another.
Note: As mentioned in Chapter Three, for such
offset to apply, the mitigating circumstance must
be generic and specific.
3. When the penalty is composed of two indivisible
penalties, the penalty cannot be lowered by one
degree, no matter how many ordinary mitigating
circumstances are present.
Exception: When a privileged mitigating
circumstance under Art. 68 or Art. 69 is present.
Note: The imposable penalty for the crime of rape
is reclusion perpetua. The accused being entitled
to the privileged mitigating circumstance of
minority, the imposable penalty is reclusion
temporal in its medium period, absent any other
mitigating or aggravating circumstance (People v.
Galang, G. R. No, 70713, June 29, 1989).
ARTICLE 64
RULES FOR THE APPLICATION OF PENALTIES,
WHICH CONTAIN
THREE PERIODS
Outline of the rules:
1. No aggravating and no mitigating medium
period.
2. Only mitigating minimum period.
3. Only aggravating maximum period.
4. Where there are aggravating and mitigating the
court shall offset those of one class against the
other according to their relative weight.
5. Two or more mitigating and no aggravating
penalty next lower, in the period applicable,
according to the number and nature of such
circumstances.
6. If there are three mitigating circumstances but two
aggravating circumstances, the rule is not
applicable. The effect is to fix the period at the
minimum only.
7. No penalty greater than the maximum period of
the penalty prescribed by law shall be imposed,
no matter how many aggravating circumstances
are present.
8. The court can determine the extent of the penalty
within the limits of each period, according to the
number and nature of the aggravating and
77
mitigating circumstances and the greater or lesser
extent of the evil produced by the crime.
Cases in which mitigating and aggravating
circumstances are NOT considered in the
imposition of penalty:
1. When the penalty is single and indivisible (except
if privileged mitigating);
2. In felonies through negligence (People v. Quijano,
43 O.G. 2214; Art. 365);
3. When the penalty is only a fine imposed by an
ordinance (People v. Kuan, G.R. No. 48515,
November 11, 1942); and
4. When the penalties are prescribed by special laws
(People v. Respecia, 58 O.G. 458).
ARTICLE 65
RULES IN CASES OF PENALTY NOT
COMPOSED OF THREE PERIODS
The courts shall apply the rules in the preceding
articles by:
1. dividing into three (3) equal portions the time
included in the penalty prescribed; and
2. forming one period of each of the three portions.
Illustration:
1. Let us take as an example Prision Mayor which
has a duration of 6 years and 1 day to 12 years.
2. Subtract the minimum(disregarding the 1 day)
from the maximum, thus
12 years 6 years = 6 years
3. Divide the difference by 3, thus
6 years / 3 = 2 years
4. Use the minimum of 6 years and 1 day of Prision
Mayor as the minimum of the minimum period.
Then add 2 years to the minimum (disregarding
the 1 day) to get the maximum of the minimum
period. Thus
We have 8 years as the maximum of the minimum
period. The range of the minimum period is 6
years and 1 day to 8 years.
5. Use the maximum of the minimum period as the
minimum of the medium period, and add 1 day to
distinguish it from the maximum of the minimum
period; we have 8 years and 1 days. Then add 2
years to the minimum of the medium period
(disregarding the 1 day) to get the maximum of
the medium period. The range of the medium
period is 8 years and 1 day to 10 years.
6. Use the maximum of the medium period as the
minimum of the maximum period, and add 1 day
to distinguish it from the maximum of the medium
period; we have 10 years and 1 day. Then add 2
years to the minimum of the maximum period
(disregarding 1 day) to get the maximum of the
maximum period. Hence, the range of the
maximum period is 10 years and 1 day to 12
years (REYES, Book One, supra at 737).
 ARTICLE 66
IMPOSITION OF FINES
Outline of the provision:
1. The court can fix any amount of the fine within the
limits established by law.
2. The court must consider:
a. the mitigating and aggravating circumstances;
and
b. more particularly, the wealth or means of the
culprit.
3. The court may also consider:
a. the gravity of the crime committed;
b. the heinousness of its perpetration; and
c. the magnitude of its effects on the offenders
victims (People v. Manuel, CA-G.R. Nos.
14648-61-R,July 6, 1957).
Note:
When the minimum of the fine is not fixed by law,
the determination of the amount of fine is left to the
sound discretion of the court, provided it shall not
exceed the maximum authorized by law (People v.
Quinto, G. R No. 40934, August 16, 1934).
Wealth or means of culprit is the main consideration
in the imposition of fines (People v. Kuan, supra).
ARTICLE 67
WHEN NOT ALL REQUISITES OF
ACCIDENT ARE PRESENT
If not all the conditions necessary to exempt from
liability under Art. 12(4) are present, the act should
be considered as:
1. Reckless imprudence, if the act is executed
without taking those precautions or measures
which the most common prudence would require;
and
2. Simple imprudence, if it is a mere lack of
precaution in those cases where either the
threatened harm is not imminent or the danger is
not openly visible (REYES, Book One, supra at
742).
ARTICLE 68
PENALTY TO BE IMPOSED UPON A
PERSON UNDER 18 YEARS OF AGE
Application of Art. 68:
1. This article is not immediately applicable to a
minor under 18 years of age, because when such
minor is found guilty of the offense charged, the
court shall determine the penalty in the judgment
of conviction but shall suspend the promulgation
(not the execution) and orders commitment to a
reformatory institution, if the court therefor
approves his application (R.A. 9344 as amended,
Sec. 38).
78
Upon the recommendation of the social worker
who has custody of the child, the court shall
dismiss the case against the child and shall order
the final discharge of the child if it finds that the
objective of the disposition measures have been
fulfilled (R.A. 9344 as amended, Sec. 39).
A child who is above twelve (12) years of age up
to fifteen (15) years of age and who commits
parricide, murder, infanticide, kidnapping and
serious illegal detention where the victim is killed
or raped, robbery, with homicide or rape,
destructive arson, rape, or carnapping where the
driver or occupant is killed or raped or offenses
under Republic Act No. 9165 (Comprehensive
Dangerous Drugs Act of 2002) punishable by
more than twelve (12) years of imprisonment,
shall be deemed a neglected child under
Presidential Decree No. 603, as amended, and
shall be mandatorily placed in a special facility
within the youth care faculty or Bahay Pag-asa
called the Intensive Juvenile Intervention and
Support Center (IJISC) (sec. 20-A, RA 9344 as
amended).
2.This article has been repealed or amended in the
sense that the accused in par. 1 thereof is
completely absolved from criminal liability under
RA 9344, hence there is no basis for considering
any privileged mitigating circumstance in his favor.
3.That circumstance may, however, be involved in
its par. 2 where the accused is over 15 and below
18 years of age but he acted with discernment,
and he is returned to the other correlative
proceedings, if any, have not achieved their
purposes and, in effect, the accused has been
found to be incorrigible.
If the court finds that the objective of the
disposition measures imposed upon the child in
conflict with the law have not been fulfilled, or if
the child in conflict with the law has willfully failed
to comply with the conditions of his/her disposition
or rehabilitation program, the child in conflict with
the law shall be brought before the court for
promulgation (not execution) of judgment (R.A.
9344 as amended, Sec. 40).
If said child in conflict with the law has reached
eighteen (18) years of age while under suspended
sentence, the court shall determine whether to
discharge the child, to order execution of
sentence, or to extend the suspended sentence
for a certain specified period or until the child
reaches the maximum age of twenty-one (21)
years (R.A. 9344 as amended, Sec. 40).
ARTICLE 69
 San Beda College of Law
2010 Centralized Bar Operations
PENALTY TO BE IMPOSED WHEN THE CRIME 4. Subsidiary penalty forms part of the penalty
COMMITTED IS NOT WHOLLY EXCUSABLE (Bagtas v. Director of Prisons, G.R. No. L- 3215,
October 6, 1949).
Penalty: Lower by one or two degrees than that
prescribed by law Example: A person is sentenced to suffer14
years, 8 months and 1 day for homicide; 17 years, 4
Application: When there is lack of some of the months and 1 day in another case; 14 years and 8
conditions required to justify the deed or to exempt months in the third case; and in a case of frustrated
from criminal liability in the several cases mentioned homicide, he is sentenced to 12 years, or a total of
in Arts. 11 and 12; PROVIDED THAT, the majority of 59 years, 8 months and 2 days.
such conditions be present.
The most severe of those penalties is 17 years, 4
Unlawful aggression is indispensable in self- month and 1 day. Three times that penalty is 52
defense, defense of relatives and defense of years and 3 days. But since the law has limited the
stranger, without which, the offender is not entitled duration of the maximum term of imprisonment to
to reduction (US v. Navarro, G.R. No. 1878, March not more than 40 years, the accused will have to
9, 1907). suffer 40 years only (Id. at 749).

ARTICLE 70 Different systems of penalty, relative to the

SUCCESSIVE SERVICE OF SENTENCE execution of two or more penalties imposed on
one and the same accused:
When the culprit has to serve two or more penalties, 1.Material accumulation system
he shall serve them simultaneously if the nature of No limitation whatever, and accordingly, all the
the penalties will so permit. penalties for all the violations were imposed even
if they reached beyond the natural span of human
Otherwise, the order of their severity (under this life.
article) shall be followed so that they may be 2.Juridical accumulation system
executed successively Limited to not more than three-fold the length of
time corresponding to the most severe and in no
Penalties which may be simultaneously served are: case to exceed 40 years. This is followed in our
1. Perpetual absolute disqualification; jurisdiction.
2. Perpetual special disqualification; 3. Absorption system
3. Temporary absolute disqualification; The lesser penalties are absorbed by the graver
4. Temporary special disqualification; penalties (REYES, Book One, supra at 754-755).
5. Suspension;
6. Destierro; ARTICLE 71
7. Public censure; GRADUATED SCALES
8. Fine and bond to keep the peace;
9. Civil interdiction; and Apply this article in determining the proper degree
10. Confiscation and payment of costs. where the law prescribes a penalty lower or higher
by two or more degrees than another given penalty.
If the sum total of all the penalties does not exceed
the most severe of all the penalties multiplied by Scale No. 1 Scale No. 2
three, the three-fold rule does not apply. 1. Death 1.Perpetual absolute
2. Reclusion perpetua disqualification
The Three-Fold Rule: (3:4:40) 3. Reclusion temporal 2.Temporary absolute
1. The maximum duration of the convicts sentence 4. Prision mayor disqualification
shall not be more than three times the length of 5. Prisioncorreccional 3.Suspension from
time corresponding to the most severe of the 6. Arresto mayor public office, the
penalties imposed upon him. 7. Destierro right to vote and be
2. But in no case to exceed 40 years. 8. Arrestomenor voted for, and the
3. This rule shall apply only when the convict is to 9. Public censure right to follow a
serve 4 or more sentences successively. 10. Fine profession or calling
Note: This rule applies only when the convict has 4.Public censure
to serve continuous imprisonment for several 5.Fine
offenses. If the convict already served sentence
for one offense, that imprisonment will not be ARTICLE 72
considered (REYES, Book One, supra at 750- PREFERENCE IN THE PAYMENT
751). OF CIVIL LIABILITIES

79
Civil liability is satisfied by following the of them shall be the minimum, the next the medium,
chronological order of the dates of the final and the most severe the maximum period.
judgment.
An example of this is the present penalty for treason
SECTION THREE PROVISIONS COMMON IN by a resident alien, which is reclusion temporal to
THE LAST TWO PRECEDING SECTIONS death (Article 114).
(ARTS.73-77)
With the abolition of the death penalty, such concept
Art. 73 Accessory penalties are also deemed of a complex penalty finds no application now in the
imposed upon the convict. computation of penalties, but it is submitted that the
impasse may be resolved through the process of
The accessory penalties provided for in Arts. 40 to computation stated in the second paragraph
45 are deemed imposed by the courts without the (REGALADO, Criminal Law Conspectus, 4th Edition,
necessity of making an express pronouncement of 2009, p. 247)
their imposition (REYES, Book One, supra at 761).
INDETERMINATE SENTENCE LAW (ISL)
Art. 74 The penalty higher than reclusion Act No. 4103 as amended
perpetua, when death is not provided by law, shall by Act No. 4225
be the same penalty and the accessory penalties of
Article 40. Concept of Indeterminate Sentence
It is a sentence with a minimum term and a
Reason: penalty of death must be specifically maximum term which, the court is mandated to
imposed by law as a penalty for a given crime. impose for the benefit of a guilty person who is not
disqualified therefore, when the maximum
Art. 75 When necessary, fine shall be increased or imprisonment exceeds one (1) year. It applies to
reduced for each degree, by of the maximum both violations of Revised Penal Code and special
amount prescribed by law, without however, laws.
changing the minimum.
Purpose of ISL: To uplift and redeem valuable
Fines are graduated into degrees for the human material and prevent unnecessary and
accomplices and accessories and for the principals excessive deprivation of personal liberty and
in frustrated and attempted felonies (Id. at 763). economic usefulness (People v. Ducosin, G.R. No.
L-38332, December 14, 1933; People v. Onate,
Distinctions between fine with a minimum and G.R. No. 27481, July 28, 1977).
fine without a minimum.
1. In both, the law fixes the maximum of the fine. (i) Sentence in the ISL if the PENALTY is
2. When the law fixes the minimum of the fine, the
court cannot change the minimum; whereas, when Imposed by:
the law does not state the minimum of the fine but RPC Special Law
only the maximum, the court can impose any Maximum Term
amount not exceeding such maximum. That which could be Must not exceed the
3. When the law fixes both the minimum and the properly imposed maximum term fixed
maximum, the court can impose an amount higher under the RPC, by said law.
than the maximum; whereas, when only the considering the
maximum is fixed, it cannot impose an amount aggravating and
higher than the maximum (Id. at 764-765). mitigating
circumstances
Art.76 The legal period of duration of penalties Minimum Term
shall be considered as divided into three parts, Within the range of Must not be less than
forming three periods, the minimum, the medium, the penalty one the minimum term
and the maximum. degree lower than prescribed by the
that prescribed by the same.
ARTICLE 77 RPC, without
WHEN THE PENALTY IS A COMPLEX ONE considering the Note: For special
COMPOSED OF THREE DISTINCT PENALTIES circumstances laws, it is anything
within the inclusive
Complex Penalty Note: BUT when range of the
It is a penalty prescribed by law composed of three there is a privileged prescribed penalty.
distinct penalties, each forming a period: the lightest mitigating Courts are given
circumstance, so that discretion in the

80
 San Beda College of Law
2010 Centralized Bar Operations
the penalty has to be imposition of the
lowered by one indeterminate penalty. Article II. Release of the Prisoner on Parole
degree, the The aggravating and The Board of Pardons and Parole may authorize
STARTING POINT for mitigating the release of a prisoner on parole, after he shall
determining the circumstances are not have served the minimum penalty imposed on
minimum term of the considered unless the him, PROVIDED that:
indeterminate penalty special law adopts the
is the penalty next same terminology for
1. Such prisoner is fitted by his training for
release.
lower than that penalties as those
prescribed by the used in the RPC 2. There is reasonable probability that he will live
Code for the offense. (such as reclusion and remain at liberty without violating the law.
perpetua and the 3. Such release will not be incompatible with the
like). welfare of society (ISL, Sec. 5).

In imposing a prison sentence for an offense
punished by the Revised Penal Code or special
penal laws, the court shall sentence the accused to
an indeterminate sentence, which has a maximum
and a minimum term based on the penalty
ACTUALLY IMPOSED.
ISL application is mandatory, where imprisonment
would exceed one year (Romero v. People, G.R.
No. 171644, November 23, 2011).
BUT only when ISL would be favorable to the
accused; if it would result in lengthening his prison
sentence, ISL should NOT be applied.
Note: The modifying circumstances are considered
only in the imposition of the maximum term of the
indeterminate sentence (They are not considered in
fixing the minimum) (People v. Dela Joya, G.R. No.
L-6587, January 27, 1956).
B.When benefit of the ISL is NOT applicable:
The Indeterminate Sentence Law shall not apply
to the following persons: 1D2P2 THEM
1. Maximum term of imprisonment actually
imposed does not exceed 1 year;
2. Sentenced to the penalty of destierro or
suspension only;
3. Sentenced to death penalty, reclusion
perpertua, or life imprisonment;
4. Convicted of piracy;
5. Granted with conditional pardon by the
president, but violated the terms thereof;
6. Convicted of treason, or conspiracy or proposal
to commit treason;
7. Habitual delinquent;
8. Escaped from confinement as a prisoner, or
evaded sentence; and
9. Convicted misprision of treason, espionage
rebellion, or sedition (MERS) (REYES, Book
One, supra at 790).
BUT a recidivist for the first time may be given the
benefits of the ISL.
C.Entitlement to Final Release and Discharge
If during the period of surveillance such paroled
prisoner shall:
1. Show himself to be a law-abiding citizen and,
2. Shall not violate any law, the Board may issue a
final certification in his favor, for his final release
and discharge (ISL, Sec. 6).
D.Sanction for Violation of Conditions of the
Parole
When the paroled prisoner shall violate any of the
conditions of his parole:
1. The Board may issue an order for his arrest,
and thereafter,
2. The prisoner shall serve the remaining
unexpired portion of the maximum sentence for
which he was originally committed to prison
(ISL, Sec. 8).
E. Reasons for Fixing the Maximum and
Minimum Terms in the Indeterminate Sentence
The minimum and maximum terms in the ISL
must be fixed, because they are the basis for the
following:
1. Whenever a prisoner has: (a) served the
MINIMUM penalty imposed on him, and (b) is fit
for release of the prisoner on parole, upon
terms and conditions prescribed by the Board
(REYES, Book One, supra at 794).
2. But when the paroled prisoner violates any of
the conditions of his parole during the period of
surveillance, he may be rearrested to serve the
remaining unexpired portion of the MAXIMUM
sentence (ISL, Secs. 5 and 8).
3. Even if a prisoner has already served the
MINIMUM, but he is not fitted for release on the
parole, he shall continue to serve until the end
of the MAXIMUM term (REYES, Book One,
supra at 794).
In fixing the minimum penalty, it is necessary for the
court to consider the criminal, first, as an individual
and, second, as a member of society.

81
F. Illustrations of Application of Indeterminate
Sentence Law
1. Under the Revised Penal Code:
A penalty of reclusion temporal was imposed
upon A for committing homicide.
a. There is no mitigating or aggravating
circumstance
i. Maximum Term reclusion temporal which
should be imposed in the medium period
(Art 64 par. 1).
ii. Minimum Term anywhere within the
range of prision mayor, the penalty next
lower from reclusion temporal.
b. There is one ordinary mitigating
circumstance
i. Maximum term reclusion temporal, in its
minimum period, after considering the
mitigating circumstance.
ii. Minimum term anywhere within the range
of prision mayor without reference to any
of its period.
c. There is one aggravating circumstance
i. Maximum Term reclusion temporal, in its
maximum period, after considering the
aggravating circumstance.
ii. Minimum Term anywhere within the
range of prision mayor without reference to
any of its period.
2.Under Special Law:
A is convicted of illegal possession of firearms
punishable by 1 year and 1 day to 5 years of
imprisonment.
a. Maximum Term shall not exceed 5 years
as fixed by law.
b. Minimum Term shall not be less than the
minimum of 1 year and 1 day prescribed by
said law.
PROBATION LAW OF 1976
(PD 968, as amended)
A.Concept
Probation
It is a disposition under which a defendant after
conviction and sentence is released subject to
conditions imposed by the court and to the
supervision of a probation officer (P.D. 968, Sec.
3).
Probation is not an absolute right. It is a mere
privilege whose grant rests upon the discretion of
the trial court. Its grant is subject to certain terms
and conditions that may be imposed by the trial
82
court. Having the power to grant the probation, it
follows that the trial court also has the power to
order its revocation in a proper case and under
proper circumstances (Soriano v. CA, G.R. No.
123936, March 4, 1999).
B.Three- Fold Purpose
1. To promote the correction and rehabilitation of
an offender by providing him with individualized
treatment;
2. To provide an opportunity for the reformation of
a penitent offender which might be less
probable if he were to serve a prison sentence;
and
3. To prevent the commission of offenses (P.D.
968, Sec. 2).
C.Application
This shall apply to all offenders except those
entitled to benefits under P.D. 603 and similar
laws (P.D.968, Sec. 1)
May be granted even if the sentence is fine only,
but with subsidiary imprisonment in case of
insolvency (REYES, Book One, supra at 805).
D.Where and When to File the Application:
An application for probation shall be filed by the
defendant with the trial court within the period for
perfecting an appeal (P.D. 968, Sec. 4).
Note: No application for probation shall be
entertained or granted if the defendant has
perfected an appeal from the judgment of
conviction.
E. Effects of Filing and Grant/Denial of
Application
a. Filing of application for probation operates as a
waiver of the right to appeal (REYES, Book
One, supra at 806).
b. The order granting or denying probation shall
not be appealable (P.D. 968, Sec. 4).
Note: It is not a final judgement but an
interlocutory judgement in the nature of a
conditional order placing the convicted
defendant under the supervision of the court for
his reformation, to be followed by a final
judgement of discharge, if the conditions of the
probation are complied with, or by a final
judgement of sentence if the conditions are
violated (Baclayon v. Mutia, G.R. No. L-59298,
April 30, 1984).
c. Accessory penalties are deemed suspended
once probation is granted.
d. Civil liability is not affected by the suspension of
the sentence imposed on the accused who is
granted probation; court must hear the civil
aspect (Castillo v. Donato, G.R. No. L-70230,
June 24, 1985).
 San Beda College of Law
2010 Centralized Bar Operations
The court may, after it shall have convicted and
sentenced a child in conflict with the law, and
upon application at any time, place the child on
probation in lieu of his/her sentence, taking into
account the best interest of the child. For this
purpose, Section 4 of presidential Decree No.
968, otherwise known as the Probation Law of
1976 is hereby amended accordingly (R.A. 9344,
Sec. 42).
F. Post-sentence Investigation
The convict is not immediately placed on
probation. There shall be a prior investigation by
the probation officer and a determination by the
court. He may, however, be released under his
bail filed in the criminal case or on recognizance
(P.D. 968, Secs. 6 and 7).
G.Criteria for Placing an Offender on Probation
The court shall consider:
1. All information relative to the character,
antecedents, environment, mental, and
physical condition of the offender.
2. Available institutional and community resources
(P.D. 968, Sec. 8).
H.Probation shall be denied if the court finds
that:
1. The offender is in need of correctional
treatment that can be provided effectively by
his commitment to an institution.
2. There is undue risk of committing another
crime.
3. Probation will depreciate the seriousness of the
offense committed (P.D. 968, Sec. 8).
I. Disqualified Offenders
The benefits of the Decree shall not be extended
to those:
1. Sentenced to serve a maximum term of
imprisonment of more the 6 years;
2. Convicted of subversion or any crime against
the national security or public order;
3. Previously convicted by final judgment of an
offense punished by imprisonment of not less
than 1 month and 1 day and/or a fine not less
than P200;
4. Once placed on probation (P.D. 968, Sec. 5);
5. Who appealed;
6. Convicted of drug trafficking or drug pushing
(RA 9165, Sec. 24); and
7. Convicted of election offenses under the
Omnibus Election Code (Omnibus Election
Code, Sec. 261).
Note: No. 5 does not apply to minor offenders. A
child in conflict with law can apply probation
ANYTIME (R.A. 9344, Sec. 42).
83
J. Conditions of Probation
Two kinds of conditions imposed:
1. Mandatory or general once violated, the
probation is cancelled. They are:
a. Probationer: Presents himself to the
probation officer designated to undertake his
supervision, at such place as may be
specified in the order, within 72 hours from
receipt of order.
b. He reports to the probation officer at least
once a month (P.D. 868, Sec. 10).
2. Discretionary or special additional conditions
listed, which the courts may additionally impose
on the probationer towards his correction and
rehabilitation outside prison (P.D. 968, Sec. 10).
However, the enumeration is not inclusive.
Probation statutes are liberal in character and
enable the courts to designate practically ANY
term it chooses, as long as the probationers
Constitutional rights are not jeopardized. Also,
they must not be unduly restrictive of
probationer, and not incompatible with the
freedom of conscience of probationer
(Baclayon v. Mutia, G.R. No. L-59298, April 30,
1984).
K.Period of Probation
For how long may a convict be placed on
probation?
1. If the convict is sentenced to a term of
imprisonment of not more than one year, the
period of probation shall not exceed 2 years.
2. In all other cases, if he is sentenced to more
than one year, said period shall not exceed 6
years.
3. When the sentence imposes a fine only and the
offender is made to serve subsidiary
imprisonment. The period of probation shall be
twice the total number of days of subsidiary
imprisonment (P.D. 968, Sec. 14).
L. Arrest of Persons on Probation and
Subsequent Dispositions
1. At any time during probation, the court may
issue a warrant for the arrest of a probationer
for any serious violation of the conditions of
probation, or upon commission of another
offense.
2. If violation is established, the court may (a)
revoke his probation, or (b) continue his
probation and modify the conditions thereof.
This order is not appealable.
3. If revoked, the probationer shall serve the
sentence originally imposed (P.D. 968, Sec.
15).
M. Termination of Probation
 The court may order the final discharge of the
probationer upon finding that, he has fulfilled the
terms and conditions of his probation (P.D. 968,
Sec. 16).
N. Effects of Termination of Probation
1. Case is deemed terminated.
2. Restoration of all civil rights lost or suspended.
3. Fully discharges liability for any fine imposed.
Note that the probation is not coterminous with its
period. There must be an order issued by the
court discharging the probationer (Bala v.
Martinez, G.R. No. 67301, January 29, 1990).
CHAPTER FIVE
EXECUTION AND SERVICE OF
PENALTIES
(ARTS. 78-88)
84
ARTICLE 78
WHEN AND HOW PENALTY IS TO BE EXECUTED
Only penalty by final judgment can be executed. A
penalty shall be executed in the form prescribed by
law and with any circumstances or incidents
expressly authorized thereby.
In addition to the provisions of the law, the special
regulations prescribed for the government of the
institutions in which the penalties are to be suffered
shall be observed with regard to the character of the
work to be performed, the time of its performance,
and other incidents connected therewith, the
relations of the convicts among themselves and
other persons, the relief which they may receive,
and their diet.
ARTICLE 79
SUSPENSION OF THE EXECUTION AND
SERVICE OF THE PENALTIES IN CASE OF
INSANITY
Rules regarding execution and service of
penalties in case of insanity:
1. When a convict becomes insane or imbecile after
final sentence has been pronounced, the
execution of such sentence is suspended only as
regards the personal penalty;
2. If he recovers his reason, his sentence shall be
executed unless the penalty has prescribed;
3. Even if while serving his sentence, the convict
becomes insane or imbecile, the above provisions
shall be observed; and
4. But the payment of his civil or pecuniary liabilities
shall not be suspended.
Note: Art. 80 has been repealed by P.D. 603 which
was amended by R.A. 9344. The latter was
amended by R.A. 10630.
THE CHILD AND YOUTH WELFARE CODE
(PD 603, As Amended)
Who is a Youthful Offender?
Sec 6, R.A. 9344 as amended (Juvenile Justice &
Welfare Act of 2006) repealed P.D. 603 (The Child
and Youth Welfare Code) on the matter so that a
child 15 years of age or below at the time of the
commission of the offense is exempt from criminal
liability. If the child is over 15 but less than 18 years
of age, he is likewise exempt from criminal liability
UNLESS he acted with discernment.
What is the Purpose of the Code?
The purpose is to avoid a situation where juvenile
offenders would commingle with ordinary criminals
in prison.
Guidelines:
 San Beda College of Law
2010 Centralized Bar Operations
If the court finds that the youthful offender temporal, prision mayor, prisioncorrecional & arresto
committed the crime charged against him, it shall mayor)
determine the imposable penalty and the civil liability
chargeable against him. ARTICLE 87
DESTIERRO
The court may not pronounce judgment of conviction Destierro
but instead suspend all further proceedings (P.D. It is considered as a principal, correctional and
603, Sec. 38) divisible penalty. Therefore jurisdiction over crimes
punishable with destierro lies with the Municipal Trial
The PD 603 and Supreme Court (SC) Rule provide Court.
that the benefit of suspended sentence would not
apply to a child in conflict with the law if, among Only in the following cases is destierro imposed:
others, he/she has been convicted of an offense 1. Death or serious physical injuries is caused or are
punishable by death, reclusion perpetua or life inflicted under exceptional circumstances (RPC,
imprisonment. In construing Sec. 38 of R.A. No. Art. 247);
9344, the Court is guided by the basic principle of 2. Failure to give bond for good behavior in grave
statutory construction that when the law does not and light threats (RPC, Art. 284);
distinguish, we should not distinguish. Since R.A. 3. Penalty for the concubine in concubinage (RPC,
No. 9344 does not distinguish between a minor who Art. 334); and
has been convicted of a capital offense and another 4. When, after reducing the penalty by one or more
who has been convicted of a lesser offense, the degrees, destierro is the proper penalty.
Court should also not distinguish and should apply
the automatic suspension of sentence to a child in Entering the prohibited area is evasion of the service
conflict with the law who has been found guilty of a of the sentence (People v. De Jesus, G.R. No. L-
heinous crime (People v. Jacinto, G.R. No. 182239, 1414, April 16, 1948).
March 16, 2011).
ARTICLE 88
The youthful offender shall be RETURNED to the ARRESTO MENOR
committing court for pronouncement of judgment,
when the youthful offender: Served in:
1. Has been found incorrigible, 1. Municipal jail; or
2. Has willfully failed to comply with the conditions of 2. House of defendant himself under the surveillance
his rehabilitation programs; or of an officer of law but only when the court so
3. When his continued stay in the training institution provides in its decision.
would be inadvisable (PD 603, Sec. 40). Grounds: health of the offender; other reasons
When the youthful offender has reached the age of satisfactory to the court
eighteen while in commitment, the court shall
determine whether-
1. To dismiss the case, if the youthful offender has TITLE FOUR: EXTINCTION OF
behaved properly and has shown his capability to CRIMINAL LIABILITY
be a useful member of the community; or
2. To pronounce the judgment of conviction, if the
conditions mentioned are not met (PD 603, Sec. ARTICLE 89
40).
In the latter case, the convicted offender may CHAPTER ONE
apply for probation (P.D. 603, Sec. 42) In any TOTAL EXTINCTION OF CRIMINAL
case, the youthful offender shall be credited in the LIABILITY
service of his sentence with the full time spent in (ARTS. 89-93)
actual commitment and detention (PD 603, Sec.
41).
CRIMINAL LIABILITY IS
The final release of a youthful offender, based on TOTALLY EXTINGUISHED
good conduct as provided in Art. 196 shall not
obliterate his civil liability for damages (P.D. 603, How criminal liability totally extinguished:
Sec. 39). (DSP3AM)
1. By the death of the convict as to personal
Note: Arts. 8185 refer to execution of Death penalties; but as to pecuniary penalties, liability is
Penalty; Arts. 86 refers to execution and service of extinguished only when the death of the offender
other penalties (reclusion perpetua, reclusion occurs before final judgment;

85
2. By service of sentence; however, it does not
extinguish the civil liability (Salgado v. Court of Pardon
Appeals, G.R. No. 89606, August 30, 1990); It is an act of grace, proceeding from the power
3. By absolute pardon; entrusted with the execution of the laws, which
4. By prescription of the crime; exempts the individual on whom it is bestowed from
5. By prescription of penalty; the punishment the law inflicts for the crime he has
6. By amnesty, which completely extinguishes the committed (REYES, Book One, supra at 842).
penalty and all its effects; and
7. By marriage of the offended woman with the Pardon must be given AFTER final judgment,
offender in the crimes of rape, seduction, (People v. Pariarca, Jr., G.R. No. 135457,
abduction, and acts of lasciviousness. In the September 29, 2000); otherwise, there will be
crimes of rape, seduction, abduction, and acts of violation of the Doctrine of Separation of Powers.
lasciviousness, the marriage, as provided under
Art. 344, must be contracted in good faith. Absolute Pardon Conditional Pardon
Extinction of criminal liability does not automatically The total extinction of The exemption of an
extinguish civil liability (Petralba v. Sandiganbayan, criminal liability of the individual within
G.R. no. 8137, August 16, 1991). individual to whom it certain limits or
is granted without conditions from the
Death of the offended party will not extinguish the any condition. punishment which the
criminal liability of the accused even in private law inflicts for the
offenses (People v. Bundalian, G.R. No. L-29985, It restores to the offense he had
October 23, 1982). individual his civil and committed resulting
political rights and in the partial
Civil liability is extinguished only when death occurs remits the penalty extinction of his
before final judgment (REYES, Book One, supra at imposed for the criminal liability.
838). particular offense of
which he was
Judgment becomes final: convicted.
1. After the lapse of the period for perfecting an
appeal;
2. When the sentence has been partly or totally
satisfied or served; or Pardon Amnesty
3. The defendant has expressly waived in writing his Includes any crime and A blanket pardon to
right to appeal (RULES OF COURT, Rule 16, Sec. is exercised individually classes of persons or
7). by the President communities who may
be guilty of political
Effect of death of the accused pending appeal of offenses.
his conviction
General Rule: The death of the accused pending Exercised when the May be exercised even
the appeal of his conviction extinguishes his criminal person is already before trial or
liability as well as his civil liability based solely on convicted investigation is had
the offense committed (People v. Alison, G.R. No. L-
30612, April 27, 1972). Merely looks forward Looks backward and
and relieves the abolishes and puts into
Exception: Civil liability arising from sources other offender from the oblivion the offense
than the crime committed survives and may be consequen- ces of an itself; it so overlooks and
pursued in a separate civil action. Sources of civil offense of which he has obliterates the offense
liability other than crime are law, contracts, quasi- been convicted; it does with which he is charged
contracts and quasi-delicts (People v. Bayotas, G.R. not work for the that the person released
No. 152007, September 2, 1994). restoration of the rights by amnesty stands
to hold public office, or before the law precisely
Amnesty the right of suffrage, as though he had
It is an act of the sovereign power granting oblivion unless such rights are committed no offense.
or general pardon for a past offense, and is rarely if expressly restored by
ever exercised in favor of a single individual, and is means of pardon.
usually extended in behalf of certain classes of
persons who are subject to trial but have not yet
been convicted (REYES, Book One, supra at 841,
citing Brown v. Walker, 161 U.S. 602).

86
 San Beda College of Law
2010 Centralized Bar Operations

Does not alter the fact Makes an ex-convict no When fine is an alternative penalty higher than the
that the accused is a longer a recidivist, other penalty which is by imprisonment, prescription
recidivist as it produces because it obliterates of the crime is based on the fine (People v. Basalo,
only the extinction of the the last vestige of the G.R. No. L-9892, April 15, 1957).
personal effects of the crime
penalty Illegal recruitment prescription is determined
from the time the accused is certified as an illegal
Does not extinguish the Does not extinguish the recruiter.
civil liability of the civil liability of the
offender offender Rule where last day of prescriptive period falls
on a Sunday or legal holiday
Being a private act by Being a Proclamation of The information can no longer be filed on the next
the President, it must be the Chief Executive with day as the crime has already prescribed
pleaded and proved by the concurrence of (Yapdiangco v. Buencamino, G.R. No. L-28841,
the person pardoned Congress; it is a public June 24, 1983).
act of which the courts
should take judicial Period will not be prolonged because doubt should
notice (REYES, Book be resolved in favor of the accused.
One, supra at 843-844).
When the penalty is a compound one:
ARTICLE 90 The highest penalty is the basis of the application of
PRESCRIPTION OF CRIMES the rules contained herein (People v. Cruz, G.R. No.
L-15132, May 25, 1960).
Prescription of the crime
It is the forfeiture or loss of the right of the State to Q: Is there a conflict between the provisions of the
prosecute the offender after the lapse of a certain Revised Penal Code on prescription of crimes and
time (Santos v. Spt. of the Philippine Training School Section 8, Rule 117 of Rules of Court (time-bar)?
for the Girls, G.R. No. 34334, November 28, 1930). Ans: NO, it is but a limitation of the right of the State
to revive a criminal case against the accused after
Based on the penalty prescribed by the RPC. the Information had been filed but subsequently
provisionally dismissed with the express consent of
In computing the period of prescription, the first is to the accused. If a criminal case is dismissed on
be excluded and the last day included (CIVIL motion of the accused because the trial is not
CODE, Art. 13). concluded within the period therefor, the prescriptive
periods under the Revised Penal Code are not
Prescriptive periods of crimes: thereby diminished. But whether or not the
1. Crimes punishable by prosecution of the accused is barred by the statute
a. Death, reclusin perpetua or reclusin temporal of limitations or by the lapse of the time-line under
20 years the new rule, the effect is basically the same.
b. Afflictive penalties 15 years
c. Correctional penalties 10 years except those Violations penalized by special laws (Act. No.
punishable by arresto mayor which shall 3326, as amended by Act. No. 3763)
prescribe in 5 years. Such offenses are, unless otherwise provided in
2. Crime of libel 1 year their respective special penal laws, prescribe in
3. Offenses of oral defamation and slander by deed accordance with the following rules:
6 months 1. After 1 year for offenses punished only by a fine or
a. Simple slander 2 months by imprisonment for not more than one month, or
b. Grave slander 6 months both;
4. Light offenses 2 months 2. After 4 years for those punished by imprisonment
5. Crimes punishable by fines for more than one month, but less than two years;
a. If fine is afflictive 15 years 3. After 8 years for those punished by imprisonment
b. If it is correctional 10 years for two years or more, but less than six years; and
c. If it is light 2 months 4. After 12 years for any other offense punished by
imprisonment for six years or more, except the
The subsidiary penalty for nonpayment of the fine crime of treason, which shall prescribe after
should not be considered in determining the period twenty years.
of such crimes (ESTRADA, Book One, supra at 5. Violations penalized by municipal ordinances shall
346). prescribe after 2 months (Act No. 3326)

87
When prescription of violations penalized by
special laws and ordinances begins to run
It begins from the day of the commission of the
violation, and if the same be not known at the time,
from the discovery thereof and the institution of
judicial proceedings for its investigation and
punishment (Act No. 3326, Sec. 2).
When prescription interrupted
It shall be interrupted when proceedings are
instituted against the guilty party, and shall begin to
run again if the proceedings are dismissed for
reasons not constituting jeopardy (Act No. 3326,
Sec. 2).
Note: In Romualdez v. Marcelo et al. (GR No.
165510-33, July 28, 2006) the Court ruled that the
running of the prescription of an offense punished by
a special law is not tolled by the absence of the
offender from Philippine soil.
ARTICLE 91
COMPUTATION OF PRESCRIPTION
OF OFFENSES
Outline:
1. Period of prescription commences to run from the
day on which the crime is discovered by the
offended party, the authorities, or their agents.
The period of prescription of crime commences to
run from the commission of the offense or its
discovery, if the commission of the same was
unknown (People v. Tamayo, 40 O.G. 2313).
2. It is interrupted by the filing of the complaint or
information corresponding to the offense
committed with the prosecutor except in cases
falling under the Rules on Summary Procedure
(must be filed with the court) and when filed with
the Punong Barangay (interruption should not
exceed 60 days).
Note: The complaint or information that will
interrupt the period must be the proper information
or complaint corresponding to the offense (People
v. Abuy, G.R. No. L-17616, May 30, 1962).
3. It shall commence to run again when such
proceedings terminate without the accused being
convicted or acquitted, or unjustifiably stopped for
any reason not imputable to the accused.
The termination contemplated here refers to a
termination that is final as to amount to a jeopardy
that would bar a subsequent prosecution (REYES,
Book One, supra at 858)
4. The term of prescription shall not run when the
offender is absent from the Philippine Archipelago.
The filing of the complaint with the municipal trial
court, although only for preliminary investigation,
interrupted and suspended the period of prescription
in as much as the jurisdiction of a court in a criminal
case is determined by the allegation in the complaint
88
or information, not by the result of proof (People v.
Del Rosario, G.R. No. L-15140, December 29,
1940).
Accused cannot be convicted of lesser offense
included within the offense charged, if the latter has
already prescribed (Francisco v. Court of Appeals,
G.R. No. L-45674, May 30, 1983).
Situations which do NOT follow Art. 91:
1. Continuing crimes, because there could be no
termination of continuity and the crime does not
end (People v. Sabbun, G.R. No. L-18510,
January 31, 1964).
2. In crimes against false testimony
a.If the testimony is against the defendant from
the date final judgment was rendered;
b.If the testimony is in favor of the defendant
from the date when testimony was given
(People v. Maneja, G.R. No. 47684, June 10,
1941).
3. Election offenses
a. If discovery of offense is incidental to judicial
proceedings, prescription begins when such
proceeding terminates; otherwise
b. From the date of commission of offense (People
v. Cario, G.R. No. 33413, September 16,
1931).
4. Bigamy although marriage is registered,
prescriptive period commences from date of
discovery (Garcia v. CA, G.R. No. 119063,
January 27, 1997)
Effect of filing an amended complaint or
information upon period of prescription
If the amendment charges a different crime, the date
of the amended complaint or information should be
considered. If it is merely a correction of a defect,
the date of the original complaint or information
should be considered (LTB v. Ramos, G.R. No.
41399, August 9, 1934),
ARTICLE 92
PRESCRIPTION OF PENALTIES
Prescription of the penalty
It is the loss or forfeiture of the right of the
government to execute the final sentence, after the
lapse of a certain time.
Prescription of penalties is based on the penalty
imposed.
Prescriptive periods of penalties:
1. Death and reclusion perpetua Twenty (20)
years;
2. Other afflictive penalties Fifteen (15) years;
3. Correctional penalties Ten (10) years except for
the penalty of arresto mayor which prescribes in
five (5) years; and
 San Beda College of Law
2010 Centralized Bar Operations
4. Light penalties One (1) year 5. That the penalty has prescribed, because of the
lapse of time from the date of the evasion of
The penalties must be imposed by final sentence. service of the sentence by the convict; and
Hence, if the convict appealed and thereafter fled to 6. Acceptance of conditional pardon interrupts the
the mountains, the penalty imposed upon him would prescriptive period;
never prescribe, because pending the appeal, the
sentence is not final (REYES, Book One, supra at Should the evasion of service of sentence, being
861). in itself a crime, interrupt the running of the
prescriptive period of penalties?
If the accused was never arrested to serve his NO. The evasion of the service of the sentence,
sentence, the prescriptive period cannot commence which is a requisite in the prescription of penalties,
to run. must necessarily take place before the running of
the period of prescription; hence, cannot interrupt it
Prescription of the Prescription of the (REYES, Book One, supra at 865-866).
Crime Penalty
Period of prescription that ran during the
The forfeiture or loss of The forfeiture or loss of evasion is not forfeited
the right of the State to the right of the If the culprit is captured and evades again the
prosecute government to execute service of his sentence, the period of prescription
the final sentence that has run in his favor should be taken into
account (REYES, Book One, supra at 864).
It is the penalty It is the penalty imposed
prescribed by law that that should be
should be considered. considered.

ARTICLE 93 CHAPTER TWO

COMPUTATION OF THE PRESCRIPTION PARTIAL EXTINCTION OF CRIMINAL
OF PENALTIES LIABILITY (ARTS. 94-99)

Outline:
1. Period of prescription commences to run from the
date when the culprit evaded the service of his
sentence.
2. It is interrupted if the convict:
a. Gives himself up;
b. Be captured;
c. Goes to a foreign country with which we have
no extradition treaty; or
d. Commits another crime before the expiration of
the period of prescription.
The period of prescription of penalty shall
commence to run again when the convict escapes
again, after having been captured and returned to
prison (REYES, Book One, supra at 863).
Elements:
1. That the penalty is imposed by final judgment;
2. That the convict evaded the service of his
sentence by escaping during the term of his
sentence;
3. The convict who escaped from prison has not
given himself up, or been captured, or gone to a
foreign country with which we have no extradition
treaty, or committed another crime;
4. If our Government has extradition treaty with the
country to which the offender escaped, but the
crime committed is not included in the treaty, it is
believed that it would interrupt the running of the
prescriptive period;
ARTICLE 94, as amended R.A. 10592
PARTIAL EXTINCTION
OF CRIMINAL LIABILITY
Criminal liability is partially extinguished:
1. By conditional pardon;
Conditional Pardon delivered and accepted is
considered a contract between the sovereign
power of the executive and the convict that the
former will release the latter upon compliance with
the condition (REYES, Book One, supra at. 867).
2. By commutation of sentence;
The commutation of the original sentence for
another of a different length and nature shall have
the legal effect of substituting the latter in place of
the former.
3. For good conduct allowances which the culprit
may earn while he is undergoing preventive
imprisonment or serving his sentence;
4. By parole; or
a. Parole is the suspension of the sentence of a
convict, after serving the minimum term of the
indeterminate penalty, without being granted a
pardon, prescribing the terms upon which the
sentence shall be suspended
b. If the convict fails to observe the condition of the
parole, the board of pardons and parole is
authorized to:
i. Direct his arrest and return to custody and
thereafter;

89
 ii. To carry out his sentence without deduction
of the time that has elapsed between the date
of the parole and the subsequent arrest
(REYES, Book One, supra at 868).
5. By probation.
4. During the eleventh and successive years of his
imprisonment, he shall be allowed a deduction of
thirty days for each month of good behavior during
detention; and

Conditional Pardon Parole 5. At any time during the period of imprisonment, he

May be given at any May be given after the shall be allowed another deduction of fifteen days, in
time after final prisoner has served addition to numbers one to four hereof, for each
judgment; is granted the minimum penalty; month of study, teaching or mentoring service time
by the Chief Executive is granted by the rendered.
under the provisions of Board of Pardons and
the Administrative Parole under the An appeal by the accused shall not deprive him of
Code provision of the entitlement to the above allowances for good
Indeterminate conduct (RPC, Art. 97, as amended by R.A. 10592).
Sentence Law
For violation of the For violation of the Special time allowance for loyalty
conditional pardon, the terms of the parole, the A deduction of one fifth of the period of his sentence
convict may be convict cannot be shall be granted to any prisoner who, having evaded
ordered re-arrested or prosecuted. Under Art. his preventive imprisonment or the service of his
re-incarcerated by the 159 of the RPC, he sentence under the circumstances mentioned in
Chief Executive, or can be re-arrested and Article 158 of this Code, gives himself up to the
may be prosecuted re-incarcerated to authorities within 48 hours following the issuance of
under Art. 159 of the serve the unserved a proclamation announcing the passing away of the
Code portion of his original calamity or catastrophe referred to in said article.
penalty (REYES, Book
One, supra at 869). A deduction of two-fifths of the period of his
sentence shall be granted in case said prisoner
Obligation incurred by a person granted chose to stay in the place of his confinement
conditional pardon notwithstanding the existence of a calamity or
He must comply strictly with the conditions imposed catastrophe enumerated in Article 158 of this Code
in the pardon.
Note: It shall apply to any prisoner whether
Failure to comply with the condition shall result in undergoing preventive imprisonment or serving
the revocation of the pardon. Under Section 64(i), sentence (RPC, Art. 98, as amended by R.A.
Revised Administrative Code, the Chief Executive 10592).
may order his arrest and reincarceration (RPC, Art.
96; REYES, Book One, supra at 870). Who grants allowances for good conduct:
Whenever lawfully justified, the following shall grant
He becomes liable under Art. 159 (This is the allowances for good conduct:
judicial remedy). 1. Director of the Bureau of Corrections,
2. Chief of the Bureau of Jail Management and
Allowance for good conduct is not given to prisoners Penology; and/or
released under conditional pardon (People v. Martin, 3. Warden of a provincial, district, municipal or city
G.R. No. 46432, May 16, 1939). jail.

Allowance for Good Conduct Such allowances once granted shall not be revoked
1. During the first two years of imprisonment, he (RPC, Art. 99, as amended by R.A. 10592).
shall be allowed a deduction of twenty days for each
month of good behavior during detention; In order to be entitled to the special allowance for
loyalty, the convict must have actually escaped.
2. During the third to the fifth year, inclusive, of his
imprisonment, he shall be allowed a reduction of
twenty-three days for each month of good behavior TITLE FIVE: CIVIL LIABILITY
during detention;

3. During the following years until the tenth year,

inclusive, of his imprisonment, he shall be allowed a
deduction of twenty-five days for each month of CHAPTER ONE
good behavior during detention; PERSONS CIVILLY LIABLE FOR FELONIES
(ARTS. 100-103)

90
 San Beda College of Law
2010 Centralized Bar Operations
ARTICLE 100
CIVIL LIABILITY OF A PERSON
GUILTY OF FELONY
Every person criminally liable for a felony is also
civilly liable (RPC, Art. 100).
Exceptions:
1. Victimless crimes; and
2. Flight to enemy country.
A crime has a dual character:
1. As an offense against the State, because of the
disturbance of the social order; and
2. As an offense against the private person injured
by the crime (REYES, Book One, supra at 874),
unless it involves the crime of treason, rebellion,
espionage, contempt, and others wherein no civil
liability arises on the part of the offender, either
because there are no damages to be
compensated or there is no private person injured
by the crime.
Effect of acquittal
Extinction of the penal action does not carry with it
extinction of the civil; unless the extinction proceeds
from a declaration in a final judgment that the fact
from which the civil liability might arise did not exist.
(See RULES OF COURT, Rule 111, Sec. 1; Civil
liability arising from other sources of obligations is
not impliedly instituted with the criminal action).
Effect of dismissal of case
The dismissal of the information or the criminal
action does not affect the right of the offended party
to institute or continue the civil action already
instituted arising from the offense, because such
dismissal or extinction of the penal action does not
carry with it the extinction of the civil action (RULES
OF COURT, Rule 111, Sec. 3).
Effect of death of the offender
If the offender dies prior to the institution of the
action or prior to the finality of judgment, civil liability
ex-delicto is extinguished (De Guzman v. People,
G.R. No. 154579, October 8, 2003).
In all these cases, civil liability from sources other
than delict are not extinguished.
Rule if the offender is acquitted, insofar as the
civil liability is concerned
As a rule, if the offender is acquitted, the civil liability
is extinguished, except:
1. If the acquittal is on the ground that the guilt has
not been proven beyond reasonable doubt (CIVIL
CODE, Art. 29);
91
2. The acquittal was due to an exempting
circumstance in favor of an imbecile or an insane
person, and a person under 15 years of age, or
those over 15 but under 18, who has acted
without discernment, or those acting under the
compulsion of an irresistible force or under the
impulse of an uncontrollable fear of equal or
greater injury (RPC, Art. 12);
3. When the court finds and states in its judgment
that there is only civil responsibility; and
4. When civil liability arises from other sources of
obligations.
ARTICLE 101
RULES REGARDING CIVIL LIABILITY
IN CERTAIN CASES
Civil liability is still imposed in cases falling under
exempting circumstances, except:
1. No civil liability in paragraph 4 of Art. 12 which
provides for injury caused by mere accident.
2. No civil liability in paragraph 7 of Art. 12 which
provides for failure to perform an act required by
law when prevented by some lawful or
insuperable cause.
Persons civilly liable for acts of insane or minor
exempt from criminal liability (Paragraphs 1, 2
and 3, Art. 12)
The civil liability for acts committed by an imbecile or
insane or minor exempt from criminal liability shall
devolve upon the person having legal capacity or
control over them, if the latter are at fault or
negligent. They are primarily liable.
If there is no fault or negligence on their part, or
even if at fault or negligent but insolvent, or should
there be no person having such authority or control,
the insane, imbecile, or such minor shall respond
with their own property not exempt from execution
(ESTRADA, Book One, supra at 370).
Persons civilly liable for acts of minors over 15
years of age who act with discernment
Art. 201 of the Child Youth Welfare Code, as
amended provides that the civil liability for acts
committed by a youth offender shall devolve upon
the following persons:
1. Offenders father;
2. Mother, in case of the fathers death or incapacity;
and
3. Guardian, in case of mothers death or incapacity.
Persons civilly liable for acts committed by
persons acting under irresistible force or
uncontrollable fear
1. The persons using violence or causing the fear
are primarily liable.
2. If there be no such persons, those doing the act
shall be liable secondarily (REYES, Book One,
supra at 899).
No civil liability is imposed in cases falling under
justifying circumstances, except under paragraph 4
of Article 11, where a person does an act, causing
damage to another, in order to avoid evil or injury,
the person benefited by the prevention of the evil or
injury shall be civilly liable in proportion to the benefit
he received.
ARTICLE 102
SUBSIDIARY LIABILITY OF INNKEEPERS,
TAVERNKEEPERS, AND PROPRIETORS
OF ESTABLISHMENTS
Elements under paragraph 1:
1. That the innkeeper, tavernkeeper or proprietor of
establishment or his employee committed a
violation of municipal ordinance or some general
or special police regulation;
2. That the crime is committed in such inn, tavern or
establishment; and
3. That the person criminally liable is insolvent.
Concurrence of all elements makes the innkeeper,
tavernkeeper, or proprietor civilly liable for the crime
committed in his establishment.
Elements under paragraph 2:
1. That the guests notified in advance the innkeeper
or the person representing of the deposit of their
goods within the inn or house;
2. The guests followed the directions of the
innkeeper or his representative with respect to the
care of and vigilance over such goods; and
3. Such goods of the guests lodging therein were
taken by robbery with force upon things or theft
committed within the inn or house.
No liability shall attach in case of robbery with
violence against or intimidation of persons, unless
committed by the innkeepers employees (REYES,
Book One, supra at 901).
It is not necessary that the effects of the guest be
actually delivered to innkeeper (De los Santos v.
Tam Khey, C.A., 58 O.G. 7693).
ARTICLE 103
SUBSIDIARY CIVIL LIABILITY
OF OTHER PERSONS
Elements:
1. The employer, teacher, person, or corporation is
engaged in any kind of industry;
92
2. Any of their servants, pupils, workmen,
apprentices, or employees commits a felony while
in the discharge of his duties; and
3. The said employee is insolvent and has not
satisfied his civil liability.
Industry
It refers to a form of productive work, especially of
manufacture, or a particular class of productive work
itself, a trade or manufacture (Telleria v. Garcia, CA
40 O.G. Supp. No. 12, p. 115).
Any department or branch of art, occupation or
business; especially, one which employs so much
labor and capital and is distinct branch of trade
(REYES, Book One, supra at 903).
Notes:
A hospital doing charitable service is not engaged in
industry; hence, not subsidiarily liable for acts of
nurses (Clemente v. Foreign Mission Sisters, C.A.,
38 O.G. 1594).
The employment of the diligence to be expected of a
good father of a family in the selection and
supervision of his employees will not exempt the
parties subsidiarily liable for damages (Arambulo v.
Meralco, G.R. No. 33229, October 23, 1930).
Subsidiary liability of employer arises only after the
conviction of the employee in the criminal action
(ESTRADA, Book One, supra at 373).
The subsidiary liability may be enforced only upon a
motion for subsidiary writ of execution against the
employer and upon proof that the employee is
insolvent (Basilio v. Court of Appeals, G.R. No.
113433, March 17, 2000).
If committed by a family driver, employer may be
held liable on a quasi-delict (Heirs of Redentor
Completo v. Albayda, Jr., G.R. No. 172200, July 6,
2010).
ARTICLE 104
WHAT IS INCLUDED IN
CIVIL LIABILITY
Restitution
Restitution of the thing itself must be made
whenever possible even when found in the
possession of a third person except when acquired
 CHAPTER TWO
WHAT CIVIL LIABILITY INCLUDES (ARTS.
104-111)
San Beda College of Law
2010 Centralized Bar Operations
by such person in any manner and under the
requirements which, by law, bar an action for its
recovery (RPC, Art. 105).
Restitution cannot be ordered before final judgment
(Chua Hai v. Kapunan, G.R. No. L-11108, June 10,
1958).
The liability to return a thing must arise from a
criminal act, not from a contract.
Restitution can be ordered even if accused was
acquitted but the thing was proved to belong to a
third person (People v. Concepcion and Alejano,
G.R. No. 33667, October 4, 1930).
In addition to the return of the property, the culprit
will be ordered to pay such amount representing the
deterioration or diminution of value, if any (REYES,
Book One, supra at 913).
Limited only to crimes against property but:
1. In a treason case, the defendant was ordered to
return the money he took from another person
when he committed the treasonous act (People v.
Logo, G.R. No. L-1317, February 27, 1948).
2. In an abduction case, the defendant was ordered
to return the money taken from the offended girl
(U.S. v. Banila, G.R. No. 6624, March 20, 1911).
Reparation of damages
Reparation will be ordered by the court if restitution
is not possible. The court shall determine the
amount of damage, taking into consideration the
price of the thing, whenever possible, and its special
sentimental value to the injured party. It refers
generally to crimes against property (RPC, Art. 106).
If there is no evidence as to the value of the thing
unrecovered, reparation cannot be made (People v.
Dalena, C.A., G.R. Nos. 11387-R and 11388-R,
October 25, 1954).
The civil damages which may be recovered in
criminal action are limited to consequential damage
caused by, and flowing from, the commission of the
crime of which the accused is convicted (REYES,
Book One, supra at 919).
Indemnification for Damages
Includes not only those caused the injured party, but
also, those suffered by his family or by a third
person by reason of the crime (RPC, Art. 107).
It is ordinarily the remedy granted to the victims of
crimes against persons.
Reparation of and indemnification for damages may
be obtained only from the accused and his heirs
(REYES, Book One, supra at 920).
93
Contributory negligence on the part of the offended
party reduces the civil liability of the offender
(People v. De Guia, C.A., G.R. No. 11769-R,
August 29, 1955).
The obligation to make restoration or reparation for
damages and indemnification for consequential
damages devolves upon the heirs of the person
liable. The action to demand restoration, reparation
and indemnification likewise descends to the heirs of
the person injured (RPC, Art. 108).
Payment of Civil Liability (RPC, Arts. 109 and
110)
1. Only principals - Pro rata
- Solidary obligation
2. Principal, accomplice, and accessory:
Principals - Pro rata, 50 % of the civil liability
Accomplices - 2/3 of 50%
Accessories - 1/3 of 50%
The principals, accomplices and accessories shall
be liable severally among themselves and
subsidiarily for those of the other persons liable.
Any person who has participated gratuitously in the
proceeds of a felony shall be bound to make
restitution in an amount equivalent to the extent of
such participation (RPC, Art. 111).
Note: The person who participate gratuitously in the
proceeds of felony referred to in this article is not
criminally liable (REYES, Book One, supra at 937).
In computing the loss of the victims earning
capacity, as an item of civil liability ex delicto, the
Supreme Court has constantly adopted the
American Expectancy Table of Mortality in the
Computation thereof, using the following formulae:
Net Earning Capacity = Life Expectancy x (Gross
Annual Income Living Expenses)
1. Life expectancy = 2/3 x (80 age at death)
2. Gross annual income = Monthly earnings x
number of months
3. Living Expenses = 50% of Gross Annual Income
(People v. Bantilan, G.R. No. 129286, September
14, 1999).
CHAPTER THREE
EXTINCTION AND SURVIVAL OF CIVIL
LIABILITY
(ARTS. 112-113)
ARTICLE 112
EXTINCTION OF CIVIL LIABILITY
Civil Liability Is Extinguished (PC3NO)
1. By payment or performance;
2. By the condonation or remission of the debt;
3. By the confusion or merger of the rights of the
creditor and debtor;
4. By compensation;
5. By novation;
6. Other causes of extinguishment of obligations,
such as annulment, rescission, fulfillment of a
resolutory condition, and prescription.

Note: Civil liability in criminal cases is not

extinguished by the loss of the thing due because
reparation will be ordered by the court in such
cases. Except as provided in Article 112, the
offender shall continue to be obliged to satisfy the
civil liability arising from the crime committed by him.

ARTICLE 113
OBLIGATION TO SATISFY CIVIL LIABILITY

The offender shall continue to be obliged to satisfy

the civil liability resulting from the crime committed
by him, notwithstanding the fact:
1. That he has served his sentence consisting of
deprivation of liberty or other rights; or
2. That he has not been required to serve the same
by reason of
a. Amnesty;
b. Pardon;
c. Commutation of sentence; or
d. Any other reason.

94