CRIMINAL LAW REVIEW 2017
accused guilty beyond reasonable doubt.
CRIMINAL LAW REVIEW
Prof. Victoria C. Garcia
4A, A.Y. 2016-2017 Second Semester
Transcribed by the SuperSeniors: Maria Aurora Mon, Carmel
Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon,
J-ann Javillonar & Maria Maica Angelika Roman
Updates by: Bongalon, David, Garvida, Liwanag, Maranan,
Melosantos, Mina, Navarez, Santos
Some parts taken from CrimRev Notes by the Hizon Twins
and 2016 Golden Notes: Criminal Law
Consolidated and jurisprudence added by: Magculang
GENERAL PRINCIPLES
Criminal Law - branch of division of law which
defines crimes, treats of their nature and provides
for their punishment
Crime - act committed or omitted in violation of
the law. Also refers to any act committed or
omitted in violation of a public law or compelling
law.
2 injuries are committed:
1. Injury committed against a person
 civil indemnity is awarded to the offended
party on the heirs
 personal injury against the private offended
party
2. Injury committed against the state
 Punishment is imprisonment
 Social injury against the state for the
disturbance of peace
Note: for every crime committed, it is more of an
offense against the state rather than against the
private offended party.
Example:
A hit B. B sustained a fatal wound but he survived.
Thereafter, B filed frustrated homicide. The fiscal
found probable cause. In the information filed by
the fiscal, the title is People of the Philippines vs
A.
The trial continued and the judge found the
>The first penalty of the judge is imprisonment
due to social injury. Aside from this, B will pay a
civil indemnity.
(Terms)Crime may be a:
1. FELONY - act/omissions punished by the
Revised Penal Code
2. OFFENSE - punished by a special law
3. ACTS/INFRACTIONS - punished by
ordinances, local legislation
Note that all three are under the umbrella term of
Crime.
Legislative Department - power to enact penal
laws.
The President may issue penal executive orders
and penal presidential decrees if there is a law
enacted by Congress delegating such power to the
President only in times of emergencies
Limitations to the Power of Congress to enact
Penal Laws:
1. Penal law must be general in application
otherwise it would be violative of the Equal
Protection Clause. It must be applied equally
to all.
a. Must not partake the nature of an ex post
facto law. It is a law which makes an act
criminal although at the time it was
committed it is not yet so.
b. Not a Bill of Attainder. It is a law which
punishes the accused without the benefit
of due process without giving him the
opportunity to be heard and to present his
side.
2. Must not impose cruel, unusual punishment
and excessive penalties.
(e.g. Congress cannot amend article 308-309
death, by saying that henceforth that any who
commit theft will be given death. This is unusual
punishment so it is prohibited.)
BAR 2015 Distinguish Ex-post facto law from Bill
of Attainder
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E: [makes an act criminal although at the time it
was committed it is not yet so.]
B: punishes the accused without trial
Characteristics of Penal Laws [GTP]:
1. Generality
- Persons to whom criminal law shall
apply
2. Territoriality
- Place where penal law shall be applied
3. Prospectivity
- Time when it shall apply
1. GENERALITY
 Penal laws shall be applied to all persons
on being within the Philippine territory
whether they are Filipino Citizens or
foreigners regardless of any of their
personal circumstances.
 Applicable to all so long as within the
Philippines
 Applies to non-citizens since while they
are within the Philippines, they are given
protection in the same way that the
government protects its own citizen
Exceptions to the GENERALITY characteristic:
a) Generally Accepted Principles of PIL
Heads of state, chief of state and other diplomatic
heads such as ambassadors and public ministers
are immune from the criminal jurisdiction of the
country where they are assigned. Since they are
immune, they cannot be arrested, prosecuted or
punished.
(Diplomatic Immunity from Suit).
*consuls - not among those who enjoy the
diplomatic immunity from suit
GR:, consuls are subject to penal laws of the
country where they are assigned.
XPN: When there is a treaty or an agreement
between the home country of the consul and the
country where he is designated stating that the
consul is immune from the criminal jurisdiction of
the host country
Example: A is an employee in ADB, a foreigner
economist. A Filipino filed an oral defamation
against the foreigner economist. The DFA issued
a letter and protocol to the court which states that
ADB and PH has an agreement that the ADB
economist is immune from suit. The SC held that
it was erroneous that there was a decision
immediately to dismiss the case without
adducing any evidence, without informing the
fiscal.
SC ruled that diplomatic immunity is only applied
in the exercise of one's function, but in this
defamation case, it immunity will not lie.
Evidence first must be gathered to determine if
the act was done in the exercise of one's
functions. [see Liang v. People, G.R. No. 1256865,
28 January 2000]
Q: A is an Italian Diplomat/Ambassador. From
his hotel xxxxx (sorry malabo talaga po). Since his
bodyguards were not yet ready, he decided to drive
his car by himself. He drove the car however, he
hit a pedestrian. The latter died. Can A be
prosecuted for reckless imprudence resulting in
homicide?
A: The said Italian Ambassador cannot be
prosecuted. He enjoys Diplomatic Immunity from
Suit. Hence, he cannot be arrested, prosecuted and
punished.
Q: If the Italian Ambassador arrived at the NAIA
Terminal 1. He has two (2) attache cases. The
sniffing dogs were trained to sniff dangerous drugs
and the dogs were following him, which means he
has in possession of dangerous drugs. So the
NAIA personnel confiscated the cases, and when
they opened it, it contains drugs in the amount of
more or less three-hundred million Pesos. Can he
be prosecuted for illegal possession/importation
of dangerous drugs?
A: Yes. Diplomatic Immunity from Suit is not
absolute, it is subject to the exception that the act
must be done in the performance of his function.
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Because the carrying of dangerous drug is not in
any way connected in the performance of his
functions
b) Laws of Preferential Application
Laws which exempt certain individuals from
criminal prosecution
e.g. members of Congress are immune from libel,
slander and defamation for every speech made in
the House of Congress during a regular or special
session [Section 11 of Art. VI of the 1987 Phil.
Consti.]
Senator X delivered a privilege speech in Senate.
Sen. X called Sen. Y a womanizer, a smuggler.
These are slanderous remarks to Sen. Y. But Sen.
Y cannot file a case of Slander or Libel against Sen.
X because these slanderous remarks were made in
the halls of congress while the congress is in
regular or special session. Hence, he cannot be
prosecuted.
Many heads of state arrived here for the 2017 Ms.
Universe. Among these was Pres. X, of X state. He
found Ms Portugal very attractive and invited her to
a date in a hotel. Afterwards, Pres. X raped her. Can
Pres. X be prosecuted for rape?
A: YES. Immunity is NOT absolute, limited only to
official functions. As rape is outside of the functions
of the head of state, Pres. X may be prosecuted here.
Q: Pres. X was driving his car on his way to the
pageant, and he hit a pedestrian, who died. May Pres.
X be prosecuted?
A: No. This time he is performing official functions,
thus he cannot be prosecuted in Philippine courts.
2. TERRITORIALITY
 Penal laws shall be applicable only within the
Philippine jurisdiction including its
atmosphere, internal waters, etc.
GR: Crimes committed outside the Philippine
jurisdiction cannot be [prosecuted] under
Philippine courts
XPN: Art. 2 (RPC)
3. PROSPECTIVITY
 Penal laws shall only be applied from the time
of effectivity.
 Penal laws cannot be given retroactive
application
GR: Penal laws shall apply prospectively
XPN: Art. 22 (RPC)
Penal laws may be given the retroactive effect if
favorable to the accused provided that the accused
is not a habitual criminal
Example: X was arrested for Vagrancy under Art.
202 of RPC in March 2013. In July 2013, a new law
enacted by Congress decriminalizing vagrancy
which amende Art 202. This new law will apply in
favor of X because this new law is favorable to him
and X is not a habitual criminal.
The Anti-Subversion Law had long been repealed.
Congress recently revived this law and makes it
criminal for being a member of the CCP-NPA.
Upon the passage of this new law, the police
officers immediately went to the house of X, a
known member of CCP during his younger years
and he was arrested. He challenged this new law,
what are his grounds?
A: First, his argument is that this new law is in
violative of the prospectivity characteristic of
penal law. This is violative because penal law
cannot be given retroactive application except that
if the law expressly provides and it is favorable to
him. Hence, it cannot be given retroactive
application. Second, he can invoke the provision
in the constitution against ex post facto law. It is an
ex-post facto law because at the time that he was a
member of CCP, there was no law punishing
subversion. Therefore, he cannot be prosecuted
under this new law.
Another exception to the prospectivity principle is
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when the Special Penal Law expressly provides for Philosophies under the Crim. Law System:
its retroactivity. An example of which is section 68 1. Classical/Juristic 2. Positivist/Realistic
of R.A. 9344 (Juvenile Justice and Welfare Act of Basis of criminal Basis of criminal
2006) the law expressly provides that it will apply activity is human free liability is man's social
to all persons that have been convicted and already will environment.
serving sentence provided that they are minors at  Man is a moral  "All men are born
the time of promulgation. creature which good, they only
understands right become evil due to
from wrong the influence of the
community."
 When he commits a  Crimes are a social
wrong he phenomenon
voluntarily does the
same, therefore, he
shall be ready for
the consequences of
his acts.
Purpose of penalty is Purpose of penalty is
retribution. rehabilitation
 Evolves from the  Offender is a socially
maxim "an eye for sick individual who
an eye.." therefore, need to be corrected
for every crime not to be punished.
committed, there is
a corresponding
penalty based on
the injury inflicted
on the victim.
Determination of Determination of
penalty is done
mechanically since penalty is done on the
the punishment is case to case basis
proportionate to the
severity sustained by
the victim.
Emphasis is on the Emphasis of the law is
crime and not on the on the offender and not
criminal, on the to the offense
offense and not on the  great regard to the
offender. human element of the
crime
 takes into
consideration why the
offender committed
the crime
3. Mixed/Eclectic Philosophy
Crimes which are Crimes which are
heinous/obnoxious in social/economic-
nature- classical positivist

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RPC - Classical philosophy
 Merely copied from Spanish..French espoused
classical
 Although RPC is molded with classical
philosophy, the amendments are geared
toward the positivist philosophy
e.g.
a) INDETERMINATE SENTENCE LAW - once
served the minimum of his penalty, eligible
for parole (rehabilitation)
b) PROBATION LAW - 6 years and below,
probation report to probation officer
c) RA 9346 -abolished death penalty
THEORIES/RULES CONCERNING CRIMINAL
LAW:
1. Utilitarian Theory/Protective
Magno v. CA
 Purpose of punishment is to protect the
society from actual/potential wrong doing
 Even in violation of special penal laws,
wherein intent does not matter, courts should
see to it that punishment shall only be
imposed to actual/potential wrongdoers.
 Potential wrongdoer was not Magno rather it
was Mrs. Teng. She should not have deposited
the check upon withdrawing the machineries.
She was the one who acted in bad faith.
 SC: If Magno will be the one to be punished,
then it will bring about opportunism.
 Magno was acquitted on the ground of good
faith.
Magno v. CA & People, G.R. No. 96132, 26
June 1992
Facts: Magno was charged with 4 counts of
violation of BP 22 before the RTC QC. Magno, in
the process of putting up a car repair shop, and
wanted to procure car repair service equipment
from Mancor Industries. Magno told Mancor’s VP,
Corazon Teng, that he had no sufficient funds, the
latter reffered Magno to LS Finance, advising its
VP, Gomez, that Mancor was willing to supply the
equipment if LS Finance could provide Magno
credit facilities.
The arrangement went through on condition that
petitioner has to put up a warranty deposit
equivalent to (30%) of the total value of the pieces
of equipment to be purchased, amounting to
P29,790.00. Since Magno could not come up with
such amount, he requested Gomez on a personal
level to look for a third party who could lend him
the equivalent amount of the warranty deposit,
however, unknown to Magno, it was Teng who
advanced the deposit in question, on condition that
the same would be paid as a short term loan at 3%
interest.
As part of the arrangement, petitioner and LS
Finance entered into a leasing agreement whereby
LS Finance would lease the garage equipments and
petitioner would pay the corresponding rent with
the option to buy the same. After the
documentation was completed, the equipment
were delivered to petitioner who in turn issued a
postdated check and gave it to Joey Gomez who,
unknown to the petitioner, delivered the same to
Corazon Teng. When the check matured,
Petitioner requested through Joey Gomez not to
deposit the check as he (Magno) was no longer
banking with Pacific Bank.To replace the first
check issued, petitioner issued another set of six (6)
postdated checks. Two (2) checks dated July 29,
1983 were deposited and cleared while the four (4)
others, which were the subject of the four counts
of the aforestated charges subject of the petition,
were held momentarily by Corazon Teng.
Subsequently, petitioner could not pay LS Finance
the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that
petitioner became aware that Corazon Teng was
the one who advanced the warranty deposit.
Petitioner with his wife went to see Corazon Teng
and promised to pay the latter but the payment
never came and when the 4 checks were deposited
they were returned for the reason "ʺaccount
closed."ʺ
Magno was convicted for violations of BP Blg. 22
on the four (4) cases in RTC Quezon City. The
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Court of Appeals affirmed in toto the said decision.
Issue: Whether Magno is guilty of violating BP 22
Ruling: Appeal GRANTED.
By the nature of the "ʺwarranty deposit"ʺ
amounting to P29,790.00 corresponding to 30% of
the "ʺpurchase/lease"ʺ value of the equipments
subject of the transaction, it is obvious that the
"ʺcash out"ʺ made by Mrs. Teng was not used by
petitioner who was just paying rentals for the
equipment. It would have been different if
petitioner opted to purchase the pieces of
equipment on or about the termination of the
lease--‐‑purchase agreement in which case he had
to pay the additional amount of the warranty
deposit which should have formed part of the
purchase price. As the transaction did not ripen
into a purchase, but remained a lease with rentals
being paid for the loaned equipment, which were
pulled out by the Lessor (Mancor) when the
petitioner failed to continue paying possibly due to
economic constraints or business failure, then it is
lawful and just that the warranty deposit should not
be charged against Magno.
To charge Magno for the refund of a "ʺwarranty
deposit"ʺ which he did not withdraw as it was not
his own account, it having remained with LS
Finance, is to even make him pay an unjust
"ʺdebt"ʺ, to say the least, since petitioner did not
receive the amount in question. All the while, said
amount was in the safekeeping of the financing
company, which is managed, supervised and
operated by the corporation officials and
employees of LS Finance. Petitioner did not even
know that the checks he issued were turned over
by Joey Gomez to Mrs. Teng, whose operation was
kept from his knowledge on her instruction. This
fact alone evoke suspicion that the transaction is
irregular and immoral per se, hence, she specifically
requested Gomez not to divulge the source of the
"ʺwarranty deposit"ʺ. It is intriguing to realize that
Mrs. Teng did not want the petitioner to know that
it was she who "ʺaccommodated"ʺ petitioner'ʹs
request for Joey Gomez, to source out the needed
funds for the "ʺwarranty deposit"ʺ. It is in simple
language, a scheme whereby Mrs. Teng as the
supplier of the equipment in the name of her
corporation, Mancor, would be able to "ʺsell or
lease"ʺ its goods as in this case, and at the same
time, privately financing those who desperately
need petty accommodations as this one. This modus
operandi has in so many instances victimized
unsuspecting businessmen, who likewise need
protection from the law, by availing of the
deceptively called "ʺwarranty deposit"ʺ not
realizing that they also fall prey to leasing
equipment under the guise of a lease-purchase
agreement when it is a scheme designed to skim off
business clients.
For all intents and purposes, the law was devised
to safeguard the interest of the banking system and
the legitimate public checking account user. It did
not intend to shelter or favor nor encourage users
of the system to enrich themselves through
manipulations and circumvention of the noble
purpose and objective of the law.
Under the utilitarian theory, the "ʺprotective
theory"ʺ in criminal law, "ʺaffirms that the
primary function of punishment is the
protective of society against actual and
potential wrongdoers."ʺ It is not clear whether
petitioner could be considered as having
actually committed the wrong sought to be
punished in the offense charged, but on the
other hand, it can be safely said that the
actuations of Mrs. Carolina Teng amount to
that of potential wrongdoers whose operations
should also be clipped at some point in time in
order that the unwary public will not be falling
prey to such a vicious transaction
Corollary to the above view, is the application of
the theory that "ʺcriminal law is founded upon that
moral disapprobation . . . of actions which are
immoral, i.e., which are detrimental (or dangerous)
to those conditions upon which depend the
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existence and progress of human society. This
disappropriation is inevitable to the extent that
morality is generally founded and built upon a
certain concurrence in the moral opinions of all. . .
.That which we call punishment is only an external
means of emphasizing moral disapprobation the
method of punishment is in reality the amount of
punishment.”
Thus, it behooves upon a court of law that in
applying the punishment imposed upon the
accused, the objective of retribution of a
wronged society, should be directed against
the "ʺactual and potential wrongdoers."ʺ In
the instant case, there is no doubt that
Magnoʹs four (4) checks were used to
collateralize an accommodation, and not to
cover the receipt of an actual "ʺaccount or
credit for value"ʺ as this was absent, and
therefore petitioner should not be punished for
mere issuance of the checks in question.
Following the aforecited theory, in Magnoʹs stead
the "ʺpotential wrongdoer"ʺ, whose operation
could be a menace to society, should not be
glorified by convicting Magno.
Furthermore, the element of "ʺknowing at the time
of issue that he does not have sufficient funds in
or credit with the drawee bank for the payment of
such check in full upon its presentment, which
check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit or would
have been dishonored for the same reason . . . is
inversely applied in this case. From the very
beginning, Magno never hid the fact that he did not
have the funds with which to put up the warranty
deposit and as a matter of fact, he openly intimated
this to the vital conduit of the transaction, Joey
Gomez, to whom Magno was introduced by Mrs.
Teng. It would have been different if this
predicament was not communicated to all the
parties he dealt with regarding the lease agreement
the financing of which was covered by L.S. Finance
Management.
2. Doctrine of Pro Reo
 Penal laws should always be construed
liberally in favor of the accused and strictly
against the state.
 Reason: Constitutional presumption of
innocence.
3. Lenity Rule
 Whenever a penal law or a provision of penal
law is susceptible of 2 interpretations, the one
lenient to the accused which will bring about
acquittal and the other one strictly against the
accused which will bring about conviction, the
lenient interpretation shall prevail.
 Maxim: In case of doubt, rule always for the
accused.
 Reason: Constitutional presumption of
innocence.
4. Equipose Rule
 Whenever the evidence of the prosecution is
equally balanced with the evidence of the
defense, the scales of justice shall be titled
towards the accused.
Reason:
1. Constitutional presumption of innocence
2. Prosecution has the burden of
proving conviction beyond reasonable doubt.
Example in Equipose Rule
X is being prosecuted for illegal possession
of dangerous drugs. During the trial, the
prosecution presented a forensic chemist who
tested the dangerous drug, presented the arresting
officer and the latter testified that he got a tip from
an informant that X bought shabu from a drug
pusher. They saw X in the canteen, while X was
eating they arrested X, frisked X and bodily
searched X and found 2 sachets of shabu.
At the time of the presentation of the evidence for
the defense, the defense counsel presented the
accused. He testified that he was not in possession
of dangerous drug. According to him, he was
merely eating at the canteen when suddenly the
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Police Officers arrived and arrested him and
proceeded in the Police station. While at the
station, suddenly, there were 2 plastic sachets of
shabu which were taken out and allegedly this was
found from the accused.
Aside from the accused, the defense presented the
owner and the waiter of the canteen. Both
corroborated the testimony of the accused that X
was arrested and they did not see any act of body
search, frisking and dangerous drug taken out
from the accused.
If you were the Judge, will you convict or acquit
the accused?
A: Here, the evidence of the prosecution is equally
balanced with the evidence of the defense.
Therefore, based on the so called equipoise rule,
the accused has to be acquitted. The prosecution
failed to prove the guilt of the accused beyond
reasonable doubt
Conviction based on the strength of the
evidence of the accused.
Q: What if what has performed was a
perverted/immoral act but there is no law which
punishes the said act. Can the person be
prosecuted in court?
A: No, "nullem crimen nulla poena sine lege" there
is no crime when there is no law which punishes
it. The court must dismiss the case, not acquit.
Q: Are there common law crimes in the
Philippines?
A: Common law crimes are principles, usages and
use of action which the community considers as
condemnable even if there's no law that punishes
it.
There are no common law crimes in the
Philippines since the Philippines is a civil law
country. Penal laws are enacted. They do not
evolve through time.
Q: Where do you file criminal cases?
A: In case of light and less grave felonies, cases
must be filed before MTCs. This felony carries
with it an imprisonment of 6 years or below 6
years.
If it is grave felonies, those were the penalty
prescribed by law is more than 6 years, cases must
be filed before the RTC.
Exceptions:
1. When the law specially provides. Example.
Libel- must be filed before RTC even though it
carries a penalty of below 6 years.
2. In cases of crimes committed by public officers
(RA 3090) the Anti-Graft and Corrupt Practices
Act and the Plunder Law. If the public officer
who is of salary grade 27 and above is charged,
the Ombudsman must file the cases before the
Sandiganbayan. But if it is below salary grade 27,
it must be filed before the appropriate trial court
(RTC or MTC)
3. If the [accused] is a minor, it must be tried in a
Family Court. If there is no Family court (such
as in provinces), in the RTC.
Art. 1. This Code shall take effect on January 1,
1932.
RPC took effect on January 1, 1932 passed into
law on December 8, 1930.
Art. 2. Application of its provisions. - Except as
provided in the treaties and laws of preferential
application, the provisions of this Code shall be
enforced not only within the Philippine
Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense while on a
Philippine ship or airship
2. Should forge or counterfeit any coin or
currency note of the Philippine Islands or
obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the
introduction into these islands of the
obligations and securities mentioned in the
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presiding number;
4. While being public officers or employees,
should commit an offense in the exercise of
their functions; or
5. Should commit any of the crimes against
national security and the law of nations,
defined in Title One of Book Two of this Code.
Art. 2 of the RPC has 2 scopes of application -
1. intraterritorial application
 provides that the RPC shall enforced within
the Philippine archipelago, including its
atmosphere, its interior waters and maritime
zone
2. extraterritorial application
'Except as provided in the treaties and laws of
preferential application'” What does this phrase
mean?
>This phrase means treaties entered with other
countries, laws of preferential application takes
preference over the provision of the RPC.
Therefore, if there is any conflict between any
agreements entered into by the Philippines with
another country, if it is in conflict with any
provisions of the RPC, the said agreement shall
prevail over the provision of RPC.
Remember the Larranaga case, based on the
RPC, a person who is convicted of a crime shall
serve his sentence in the New Bilibid Prison, that
is the national penitentiary. However, the
Philippines entered into an agreement with
Spain. This agreement was ratified by the Senate.
As a result thereof, after Larranaga has been
convicted of kidnapping and serious illegal
detention with rape and homicide, considering
that he has 2 citizenships - both Filipino and
Spanish. He was brought to Spain, and there he is
serving his sentence. Because based on that
agreement, Spanish citizens who are serving their
sentence in the Philippines can be brought to
Spain and they are to serve their sentence there.
Larranaga took advantage because definitely, the
facilities perhaps are better than prison facilities
here.
Extraterritorial Application:
1st: Those who should commit an offense while on a
Philippine ship or airship.
When is it a Philippine ship or airship?
If it is registered in the Philippines and under the
Philippine laws. Even if totally or wholly owned
by a Filipino citizen, if it is not registered in the
Philippines it cannot be considered as a
Philippine ship/airship. It is only upon
registration that this aircraft/vessel can fly the
Philippine flag. Therefore, it is registration which
is the operative act which makes it a Philippine
ship/airship.
Now the law says, when a crime is committed on
board a Philippine ship/airship. The
extraterritorial application of the RPC will apply.
It means even if the crime is committed in
another place outside the Philippine jurisdiction,
still, the RPC will apply. So what is this situation?
This is a situation where a crime is committed on
board a Philippine vessel (pv) while it is outside
Philippine territory but not in the territory of
another country. The pv is on waters of the
Philippines, a crime was committed on board.
What country will have jurisdiction?
Obviously, the Philippines.
What if that pv is on the high seas or international
waters and a crime was committed on board the
said pv. What country will have jurisdiction over
the said crime?
>Still the Philippines. Because of the
extraterritorial application of the RPC.it is the
situation referred to as the 1st circumstance
under paragraph 2 of Art. 2. It is the situation
where the Philippine ship is outside the
Philippine territory but not in the territory of
another country.
What if the pv is on the waters on Malaysia and a
crime was committed on board. What country
will have jurisdiction?
>Malaysian courts will have the jurisdiction
because of the territoriality characteristic of
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criminal law.
Any exception?
>If the vessel is a Philippine war vessel or
warship. Or it is a Philippine warplane because a
Philippine warship or war aircraft is considered
an extension of the Philippine sovereignty.
Therefore, wherever they may be, when a crime
is committed on board a Philippine war vessel or
warplane, the Philippines will always have
jurisdiction and the reason is the 1st paragraph of
Art. 2 of the RPC - that is the intraterritorial
application of the RPC because it is as the crime is
committed within the Philippine territory.
In so far as foreign merchant vessel is concerned.
There are 2 rules:
French Rule - crimes committed on board while
the foreign vessel is on the water of another
country is within the jurisdiction of the flag
country. That is the country where the country is
registered. EXCEPT when the crime committed
affects the public order, the peace and security of
the host country, then the host country will have
jurisdiction over the said crime. Therefore, the
French Rule recognizes the jurisdiction of the
country where the vessel is registered.
French Rule = flag country
English Rule - when a crime is committed on
board a foreign merchant vessel while on the
waters of another country it is the host country
which will have jurisdiction over the said crime.
EXCEPT when the crime merely affects the
internal management of the vessel, then it is the
flag country which will have jurisdiction. In effect,
the English Rule is territorial in nature.
The Philippines adhere to the English Rule
which is strictly territorial in nature.
Ex. A foreign merchant vessel is on Manila Bay. A
crime was committed on board, the Philippines
will have jurisdiction over the said crime and
criminal because we follow the English Rule.
2nd: Those who should forge or counterfeit any
coin or currency note of the Philippine Islands or
obligations and securities issued by the
Government of the Philippine Islands.
3rd: Those who should be liable for acts connected
with the introduction into these islands of the
obligations and securities mentioned in the
presiding number.
Ex. So X was in Japan. He counterfeited Philippine
coins. He then introduced these coins in to the
Philippine Islands. Although the crime has been
committed in Japan, he can be held liable before
Philippine courts. This is necessary in order to
maintain and preserve the financial circulation
and financial stability of the Philippines.
Otherwise, no other country would be interested
in prosecuting him except the Philippines because
it is only the Philippines will be affected by the
said counterfeiting of coins.
4th: Those who while being public officers or
employees should commit an offense in the exercise
of their functions.
This refers to public officers or employees of the
Philippine Government who are working in
another country. While they are working in
another country, they committed a crime. If the
crime committed by this public officers or
employees are in connection with the exercise of
their functions, they can be prosecuted before
Philippine courts. But if the crime they committed
is in no way connected with the exercise of their
functions, then they should be prosecuted in the
courts of the country where they are assigned.
Ex.
[An] OFW lost his passport, he went to the
Philippine Embassy in Japan applying for a new
passport. He has been going there back and forth
that it has not it was not yet approved or it was
not yet released. On his way out, he saw the
approving authority (AA). He talked to AA
requesting and begging him that it be
immediately approved and released. He was
invited to a coffee shop, while having coffee, AA
asked $500 from him and promised on that same
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afternoon, his passport would be released. So the
poor OFW gave AA the $500. Where may this AA
be prosecuted? Before Philippine courts or before
the courts of Japan?
AA may be prosecuted before the Philippine
courts. He did not commit in effect a crime in
approving the said passport because it his
obligation to approve the said passport. However,
he would not perform his obligation without a
bribe. He would not perform his function without
the money given by the said OFW. So in effect, he
committed bribery in its 2nd form - he performs
an act not constituting a crime in connection with
the exercise of his function in consideration of the
bribe money. So here, he committed bribery, he
can be prosecuted before Philippine courts. His
act is in connection with the exercise of his
functions.
What if a beautiful and attractive OFW was
following up her passport to the Phil Amb. to Japan,
and the latter asked for sex in exchange of the
release. In desperation, the OFW accepted the deal,
and they went to a motel for sex. Later she went back
to the Phils and filed a case for sexual harassment.
Will the case prosper?
A: the case will prosper, as he asked for sex in return
of the release of the passport. This is in connection
with his official duties. Thus Phil. Courts have
jurisdiction.
What if instead of the AA, here comes a Filipino
filing clerk (FC) inside the Philippine Embassy.
The FC followed the OFW, the FC told him that he
can facilitate the release of his passport if he will
him $50. Desperate, the OFW gave him the
money. However, that afternoon, the passport
was still not released. He wanted to file a case
against the FC. Where can he file a case? Before
courts of Japan or Philippines?
It should be filed before the courts of Japan
because the act performed by FC has nothing to
do with the exercise of his official functions. In
effect, what he has committed is estafa because he
made this OFW believe that he has the authority
to facilitate the release of the said passport but he
did not have such qualification. He committed
estafa under Art.315(2)(a). Therefore, he should
be prosecuted before the courts of Japan.
What if there is this Philippine consul (PC). The PC
told his secretary (S) to work overtime. So S
followed PC. In the evening, PC gave coffee to S.
Unknown to S, there was something mixed in the
coffee to make her unconscious. So after drinking
the coffee, she became unconscious and she was
raped by PC. Snow wanted to file a case against
PC. Where may she file the case?
The act of rape committed has nothing to do with
the exercise of PC's functions. Therefore, it should
be filed before the courts of Japan. However, it
was committed inside the Philippine Embassy.
The Philippine Embassy which is considered an
extension of the Philippine sovereignty, then it is
as if the crime was committed within the
Philippine territory. Therefore, S should file the
case before the Philippine courts because it is as
if the crime was committed within the Philippine
archipelago. The reason for this is the
intraterritorial application of the RPC. But if the
rape was committed at any other place outside
the Philippine Embassy, then PC should be
prosecuted before the courts of Japan because
rape is in no way connected with the exercise of
his functions and a consul does not enjoy
diplomatic immunity.
Example: X is a US citizen born in the USA of
Filipino parents wanted to visit the Philippines. So
he applied for passport in Phil. Embassy in
California USA. The passport has not yet been
approved, so he asked the Secretary when his
passport will be approved. The secretary said that
his application is at the bottom of the papers to be
signed by the approving authority. The secretary
also said that it will be approved more than a
month. She invited X to a coffee shop and told X
that she was the secretary of the Approving
Officer and offered that she can place his passport
on top of the documents to be approved by her
boss, that is, if X will gave the secretary 500 USD.
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Then X gave her the money. So as promised, she
did place it on top of the documents and was
approved immediately. Can the said secretary be
prosecuted in Phil. Courts? or US Courts?
A: She can be prosecuted before the Philippine
Courts. As a secretary it is her duty to place the
documents on the table of the approving authority
and the latter approved the documents based on
where they are placed. The secretary committed
the crime of Bribery (Direct Bribery) because she
accepted money in exchange of doing it which is
not prohibited under the law but she favored X. It
is connected with her official function being the
secretary of the approving authority.
Q: Under the same case and the same facts but the
offender is a Janitor of the Phil. Embassy, Where
can the janitor be prosecuted?
A: In the US Courts because it is not in any way
connected with his job as a janitor.
Q: What if in the same problem, while the Janitor
saw X leaving the embassy, he told X to follow
him in the janitorial services room inside the Phil.
Embassy and told X that by giving him 200USD
he can guaranty that his passport will be released
in a week, so X gave the Janitor the money. Where
can the janitor be prosecuted?
A: In the Philippine Courts. Even if the crime is
not in any way connected to his functions as a
janitor, since it is committed inside the Phil.
Embassy it is considered to have been committed
within the Philippine Territory because the Phil
embassy is an extension of the sovereignty. Even
if the crime committed is not in any way connected
with the function of the public employee, if it is
committed in Phil. Embassy, he can be prosecuted
before the Philippine Courts.
5th: Those who should commit any of the crimes
against national security and the law of nations,
defined in Title One of Book Two of this Code.
Crimes against national security - treason,
conspiracy/proposal to commit treason,
misprision of treason, espionage, enticing to war,
etc...If any of this crime is committed, even if it is
done outside the Philippine archipelago the
offender can be prosecuted before the Philippine
courts.
Reason: extraterritorial application of the RPC.
Likewise, if the crime committed is against the
Law of Nations (only 4 crimes - piracy, qualified
piracy, mutiny and qualified mutiny) the said
offender can also be prosecuted before the
Philippine courts.
Article 3. Definitions. - Acts and omissions
punishable by law are felonies (delitos).
Felonies are committed not only be means of
deceit (dolo) but also by means of fault (culpa).
There is deceit when the act is performed
with deliberate intent and there is fault when the
wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
FELONIES - are acts or omissions punishable by
the RPC When the law says 'by law', it means the
RPC.
ACTS - refer to any body movement which has a
direct connection to the felony intended to be
committed. It is an external act, an overt act in
connection with the felony intended to be
committed. Therefore, internal acts or mere
criminal thoughts will never give rise to a crime.
Ex. A lust[s] for his neighbor. Whenever the
neighbor would pass by going to work, A would
always look at the neighbor. And for the whole
day, he would think of the neighbor with nothing
but lust. No matter how criminal his thoughts are
it will never give rise to a crime because it is
merely an internal unless he performs an external
act or an overt act related to acts of lasciviousness
or attempted rape or rape. The law requires an
act.
OMISSION - is the failure of a person to perform
an act or to do a duty which is required by law
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Ex. If a person found, any personal property on
the street or on any place and he failed to deliver
the same to the owner or to the local authorities.
Under Art.308 he becomes liable for theft. Or if a
person was driving his vehicle, then he bumped
and hit another person. And instead of helping
that person, he increased his speed and left. It is a
hit-and-run situation. Such fact that he failed to
lend help and assistance to that victim will
aggravate his criminal liability under Art. 365. So
here, for failing to perform an act which is
required by law to be done. He commits a felony.
So felonies are acts or omissions punishable by
the RPC.
2 kinds of felonies that are may be committed
under Art. 3:
1. Deceit/dolo/intentional felony - when the act is
done with deliberate intent
Elements:
1) Criminal intent on the part of the offender
2) Freedom of action in doing the act on the
part of the offender
3) Intelligence of the offender
An intentional felony is a voluntary act because it
is committed by means of deliberate intent.
2. Fault/culpa/culpable felony- when the
wrongful act results from imprudence,
negligence, lack of foresight or lack of skill
Elements:
1) Criminal negligence
2) Freedom of action
3) Intelligence
Under Art. 365, a culpable felony is defined as [a
voluntary act] wherein the offender, although
without malice or deliberate intent caused an
injury to another by the means of negligence or
imprudence. Therefore, even a culpable felony is
a voluntary act. [The only difference is that in
dolo, there is malice. In culpa, there is none.]
In so far as criminal law is concerned,
voluntariness is actually the concurrence of the 3
elements of intentional felony and the
concurrence of the 3 elements of culpable felony.
In other words, in so far as voluntariness of
intentional felony is concerned, it is the
concurrence of criminal intent, freedom of action
and intelligence.
Therefore, without voluntariness, there can
neither be an intentional felony nor a culpable
felony.
A common element of both intentional and
culpable felony is freedom of action - there is
freedom of action when the offender
performs the act on his own free will, without
force, duress, uncontrollable fear.
So note if the offender performs the criminal act
but he did the act because there was this
compulsion and irresistible fear or under the
impulse of an uncontrollable fear. There is no
criminal liability. They are exempting
circumstances under Art. 12 of the RPC because
there is no freedom of action, an element of
voluntariness. There is neither an intentional
felony nor culpable felony because there is
wanting of freedom of action, an element of
voluntariness.
On the other hand, intelligence is also a common
element of intentional and culpable felony.
Intelligence is the mental capacity of a person to
know wrong from right and to appreciate the
consequences of one's act. If the person acted
without intelligence, there is no criminal liability.
So if the criminal act has been committed by an
insane, an imbecile or a minor, the said offender
is said to be exempted from criminal liability.
Under Art. 12, they are exempting circumstances,
he is free of both intentional and culpable felony
because he acted without intelligence, an element
of voluntariness.
INTENT is the use of a particular means to
achieve the desired result. You cannot see intent.
It is an internal state of the mind.
Intent is determined by the means employed by
the offender in committing the act or by the overt
acts of a person constituting the commission of
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the crime.
Ex. The use of a lethal weapon would show intent
to kill on the part of the offender although death
did not arise. Taking the personal property of
another without the consent of the owner would
show intent to gain on the part of the offender.
2 kinds of intent:
1) General Criminal Intent (GCI)
2) Specific Criminal Intent (SCI)
GCI is presumed by law by the mere doing of an
act. Therefore, the prosecution does not have the
burden to prove it.
SCI is just like an element, an ingredient of the
commission of the crime. It is not presumed.
Therefore, it must be proven by the prosecution
beyond reasonable doubt.
Specific criminal intent must be alleged in the
information filed against the accused and must be
proven beyond reasonable doubt either by
DIRECT evidence or by CIRCUMSTANTIAL
evidence.
Ex. Intent to kill must be proven in
frustrated/attempted homicide. A and B were
fighting. A was losing and so A shot B. B was hit
on the left arm. He was brought to the hospital.
Thereafter, after B's release from thehospital, he
filed a case against Afor attempted homicide.
Since the case filed is attempted homicide.
The prosecution has the burden of proving intent
to kill on the part of A when he shot B and hit him
on the left arm. Otherwise, if the prosecution
failed to prove intent to kill on the part of A. Then
A can only be convicted of serious/less
serious/slight physical injuries depending on the
date required for medical intervention or he
should be acquitted of the crime. Intent to kill
must be proven.
But what if in the course of their fight, A was
losing and so A took out his pistol and he shot B.
B was shot on the heart, a fatal wound, a mortal
wound was sustained because it was a vital organ
which was hit. A immediately bought B to the
hospital. However, upon arrival, he was
pronounced dead. Therefore, the heirs of B filed a
case for homicide against A. A's defense, I have no
intention to kill B. According to him, he only
intended to threaten B because they were
fighting. Will this defense lie?
A's defense that he has not intent to kill B will not
lie. The reason is since the victim died, intent to
kill becomes a GCI which is presumed by law.
Prosecution need not prove intent to kill in
homicide, parricide, murder, infanticide (HPMI)
because the victim died. It is only in the attempted
and frustrated stages of the HPMI wherein intent
to kill is considered an element.
Why is it only in the consummated stage of
HPMI that intent to kill is presumed?
>Because the best evidence to prove intent to
kill is that the victim died. So it is presumed by
law.
X and Y are fighting, X is a karate master. X
kickboxed the neck of Y, the chest of Y and both
legs of Y.
Y was rushed to the hospital and survived, but he
was hospitalized for a period of 2 months or 60
days. And so a case of frustrated homicide was
filed against X. X however contended he has no
intent to kill, because it was a fight. He never
intended to kill, he only intended to injure.
 Here intent to kill is a specific criminal intent
which must be proven by the prosecution. If
the prosecution failed to prove specific
criminal intent on the part of X when he
kickboxed the neck, chest and legs of Y, then
the court can only convict X of Serious
Physical Injuries. Because said criminal intent
was not proven by the prosecution.
What if in the same problem. When X kickboxed,
the neck, chest and legs of Y. Y was put to the
hospitalized, but 2 days after, Y died because of
the injuries sustained. And so, a case of homicide
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was filed against X.
 Here, the prosecution need not prove the
intent to kill, because the Victim Y died, intent
to kill becomes a GENERAL CRIMINAL
INTENT which is presumed by law.
 It is the accused X, who has the burden
of evidence to prove that when he
inflicted physical injuries to Y, there was
no intent to kill.
 The best evidence of intent to kill is when the
victim died.
MOTIVE - the moving power which impels a
person to do an act to achieve the desired result
As a rule, motive is not material in determining
the criminal liability of the offender is identified,
admits to the commission to the crime, if the
prosecution has direct evidence or eyewitness to
the commission of the crime, if crime committed
is a culpable felony, crime committed is not a
special penal law.
XPNs: intent becomes material in determining the
criminal liability of the offender -
1. When the act of the offender would result to
variant crimes (to know what crime should
be charged)
Ex. City mayor (CM) was jogging near the
seashore. Here comes X who went to CM and
him. CM was not in the performance of his
official duty when he was shot. Therefore, the
act of X in killing and shooting CM may result
to variant crimes depending on the motive,
depending on the reason of X of killing. If the
reason is a personal grudge/vendetta, murder
is committed. But if the reason is because of
CM's past performance of his duty, then the
crime committed is direct assault with
homicide.
2. When the identity of the offender is doubtful
Ex. There are so many suspects, A, B, C, D and E.
There's doubt as to who among the committed
the crime. Then motive will become material
in determining the criminal liability of the
offender.
3. When the prosecution only has circumstantial
evidence to prove the commission of the crime
Ex. Who was the last person seen together with
the victim before he was killed? Why was he
with the victim at that time? What could be the
motive behind the kill? All of these must be
taken into consideration because there was no
eyewitness, no direct evidence in the
commission of the crime.
*Motive alone, however strong, will never bring
about conviction. But motive + circumstantial
evidence, motive + supporting evidence =
conviction.
How is intent established? How is motive
established?
Rivera, et al. v. People, G.R. No. 166326, 25
January 2006
Facts: One day, the victim Ruben Rodil went to a
store to buy food when one of the petitioners,
Edgardo Rivera, mocked him for being jobless and
dependent on his wife for support. A heated
exchange of words ensued. The next day, Ruben
went to the store to buy food and to look for his
wife. Momentarily, Esmeraldo and his two
brothers, petitioners Ismael and Edgardo, emerged
from their house and ganged up on Ruben.
Esmeraldo and Ismael mauled Ruben with fist
blows and he fell to the ground. In that helpless
position, Edgardo hit Ruben three times with a
hollow block on the parietal area. Esmeraldo and
Ismael continued mauling Ruben. People who saw
the incident shouted: "Awatin sila! Awatin sila!"
Ruben felt dizzy but managed to stand up. Ismael
threw a stone at him, hitting him at the back. When
policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their
house. Ruben was brought to the hospital where
he received medical treatment. The doctor certified
that the wound in the parietal area was slight and
superficial and would heal for 1 to 7 days.
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The RTC of Imus, Cavite found the Riveras guilty
of frustrated murder. The CA affirmed the RTC.
Issue: Whether the intent to kill was not proven.
Ruling: Petition DENIED.
Evidence to prove intent to kill in crimes
against persons may consist, inter alia, in
1) the means used by the malefactors,
2) the nature, location and number of wounds
sustained by the victim,
3) the conduct of the malefactors before, at
the time, or immediately after the killing of
the victim,
4) the circumstances under which the crime
was committed and,
5) the motives of the accused.
If the victim dies as a result of a deliberate act
of the malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the
requisite quantum of evidence to prove the intent
of petitioners to kill Ruben. Petitioners Esmeraldo
and Ismael pummeled the victim with fist blows.
Even as Ruben fell to the ground, unable to defend
himself against the sudden and sustained assault of
petitioners, petitioner Edgardo hit him three times
with a hollow block. Edgardo tried to hit Ruben on
the head, missed, but still managed to hit the victim
only in the parietal area, resulting in a lacerated
wound and cerebral contusions [end].
De Guzman, Jr. v. People, G.R. No. 178512, 26
November 2014
Facts: One evening the victim Alexander Flojo
(Alex) was fetching water below his rented house
in Mandaluyong City when accused Alfredo De
Guzman, Jr. suddenly appeared and hit him on the
nape. The sister of Alfredo and Alex’s landlady
Lucila apologized on Alfredo’s behalf and told
Alex to go upstairs, which the latter did. Two hours
later Alex resumed fetching water, when suddenly
Alfredo appeared again and stabbed Alex on his
face and chest. Alex was rushed to hospital where
he received timely medical treatment, which
prevented his death. Alfredo on the other hand,
denied stabbing Alex.
The RTC Mandaluyong City convicted Alfredo of
frustrated homicide, and the CA confirmed the
conviction.
Issue: Was De Guzman, Jr. not properly found
guilty beyond reasonable doubt of frustrated
homicide?
Ruling: Petition DENIED.
The essential element in frustrated or attempted
homicide is the intent of the offender to kill
the victim immediately before or simultaneously
with the infliction of injuries. Intent to kill is
a specific intent that the State must allege in
the information, and then prove by either direct
or circumstantial evidence, as differentiated from
a general criminal intent, which is presumed
from the commission of a felony by dolo.
Intent to kill, being a state of mind, is
discerned by the courts only through external
manifestations, i.e., the acts and conduct of the
accused at the time of the assault and
immediately thereafter.
In Rivera v. People, the Court considered the
following factors to determine the presence
of intent to kill, namely:
1) the means used by the malefactors;
2) the nature, location, and number of
wounds sustained by the victim;
3) the conduct of the malefactors before,
during, or immediately after the killing
of the victim; and
4) the circumstances under which the crime
was committed and the motives of the
accused.
The Court also considered as determinative
factors the motive of the offender and the
words he uttered at the time of inflicting the
injuries on the victim.
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Here, both the trial and the appellate court agreed
that intent to kill was present. We concur with
them. Contrary to the petitioner’s submission, the
wounds sustained by Alexander were not mere
scuffmarks inflicted in the heat of anger or as the
result of a fistfight between them. The petitioner
wielded and used a knife in his assault on
Alexander. The medical records indicate, indeed,
that Alexander sustained two stab wounds,
specifically, one on his upper left chest and the
other on the left side of his face. The petitioner’s
attack was unprovoked with the knife used therein
causing such wounds, thereby belying his
submission, and firmly proving the presence of
intent to kill. There is also to be no doubt about
the wound on Alexander’s chest being sufficient to
result into his death were it not for the timely
medical intervention.[end]
Roque v. People, G.R. No. 193169, 6 April 2015
Facts: Petitioner Rogelio Roque was charged with
frustrated homicide in the RTC of Malolos,
Bulacan. The prosecution averred that Reynaldo
Marquez sought to settle a misunderstanding with
Roque, and with the assistance of the barangay
chairman Tayao, he went to Roque’s house to talk
to the latter. Marquez apologized to Roque, but the
latter shot at Marquez, who was hit in the right ear
and nape. Unsatisfied, Roque kicked Reynaldo-
who was then on the ground-on the face and back.
Marquez pleaded for help from Tayao but Roque
warned those around not to get involved.
Fortunately, Marquez’s parents arrived and
brought him to the hospital, and he survived.
Roque, on the other hand, alleged that Reynaldo
and his brother Rodolfo, who were both drunk,
cursed Roque. The latter ignored the two and just
went home. Later, the Marquez brothers went to
Roque’s house, still shouting invectives at the
latter. The Marquez brothers were persuaded to
leave, but not without threatening to kill Roque.
They did return and challenged Roque to a gun
duel, and Reynaldo fired his gun. As an act of self-
defense, Roque fired back twice.
The RTC found Roque guilty as charged, and the
CA affirmed the conviction.
Issue: Whether Roque is guilty only of less serious
physical injuries, not frustrated homicide.
Ruling: Petition DENIED.
The CA correctly affirmed the RTC’s ruling that
Roque is guilty of frustrated homicide and not
merely of less serious physical injuries as the latter
insists. As aptly stated by the CA:
In attempted or frustrated homicide, the
offender must have the intent to kill the victim.
If there is no intent to kill on the part of the
offender, he is liable for physical injuries only.
Vice-versa, regardless of whether the victim only
suffered injuries that would have healed in nine to
thirty days, if intent to kill is sufficiently borne out,
the crime committed is frustrated homicide (Arts.
263-266).
Usually, the intent to kill is shown by the kind
of weapon used by the offender and the parts
of the victim’s body at which the weapon was
aimed, as shown by the wounds inflicted. Hence,
when a deadly weapon, like a bolo, is used to stab
the victim in the latter’s abdomen, the intent to kill
can be presumed (Reyes, The Revised Penal Code, 13TH
ED., P. 431).
It is worth highlighting that the victim received two
gunshot wounds in the head. Indeed the location
of the wounds plus the nature of the weapon
used are ready indications that Roque’s
objective is not merely to warn or incapacitate
a supposed aggressor. Verily, had Roque been
slightly better with his aim, any of the two bullets
surely would have killed Marquez outright. Also,
the intent to kill is further exhibited by the fact
that Roque even prevented barangay officials
from intervening and helping the bleeding
victim. Indeed, the fact that Reynaldo Marquez
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was miraculously able to live through the ordeal modified the criminal liability of the 25 accused
and sustain only modicum injuries does not mean based on their individual participation, as at the
that the crime ought to be downgraded from time Villareal passed away:
frustrated homicide to less serious physical injuries.  19-Victorino, Sabban, Lledo, Guerrero,
After all, as was mentioned above, what should be  Musngi, Perez, De Guzman, Santos, General,
determinative of the crime is not the gravity of the Flores, Lim, Montecillo, Ranada, Mendoza,
resulting injury but the criminal intent that Verdadero, Purisima, Fernandez, Abas, and
animated the hand that pulled the trigger [end]. Brigola-were acquitted as their individual guilt
was not established beyond reasonable doubt;
Villareal v. People, G.R. Nos. 154954, 155101,  4-Tecson, Ama, Almeda, and Bantug, Jr. were
178057 & 178080, 1 February 2012 guilty of slight physical injuries;
Facts: Seven freshmen law students, including the
 Dizon [and Villareal were] guilty of homicide
victim Lenny Villa, of the Ateneo Law School
underwent initiation rites to join the Aquila Legis
Issues:
Juris Fraternity. For two days, the neophytes were
1. Whether the CA committed grave abuse of
subjected to traditional forms of Aquilan initiation
discretion, amounting to lack or excess of
rites, indoctrination of fraternity principles, and
jurisdiction, when it set aside the finding of
made to present comic plays and play rough
conspiracy by the trial court and adjudicated
basketball.
the liability of each accused according to
individual participation (NO)
After the initiations for the second day ended, two
2. Whether accused Dizon is guilty of homicide
non-resident or alumni frat members Dizon and
(NO); and
Villareal demanded that the rites be re-opened. The
3. Whether the CA committed grave abuse of
frat members, including Dizon and Villareal,
discretion when it pronounced Tecson, Ama,
subjected the neophyes to “paddling” and
Almeda, and Bantug guilty only of slight
additional rounds of physical pain.
physical injuries (YES)
Leny received several paddling blows, one of
Ruling:
which was so strong that it sent him sprawling to
The element of intent - on which this Court shall
the ground. After the rounds, he could no longer
focus - is described as the state of mind
walk. Leny and the other neophytes ate dinner and
accompanying an act, especially a forbidden act. It
slept after the initiations were officially over.
refers to the purpose of the mind and the resolve
with which a person proceeds. It does not refer to
After an hour of sleep, the neophytes were
mere will, for the latter pertains to the act, while
suddenly roused by Leny’s shivering and
intent concerns the result of the act. While motive
incoherent mumbling. Dizon and Villareal initially
is the "moving power" that impels one to action
dismissed it as overreaction, but later realized that
for a definite result, intent is the "purpose" of using
Leny was feeling cold. The Aquilans tried to keep
a particular means to produce the result. On the
him warm, but his condition worsened. Leny was
other hand, the term "felonious" means, inter alia,
rushed to hospital, but was declared dead on
malicious, villainous, and/or proceeding from an
arrival.
evil heart or purpose. With these elements taken
together, the requirement of intent in intentional
A criminal case for homicide was filed against the
felony must refer to malicious intent, which is a
35 Aquilans. The RTC held 26 of them guilty. The
vicious and malevolent state of mind
CA set aside the RTC’s finding of conspiracy
accompanying a forbidden act. Stated otherwise,

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intentional felony requires the existence of dolus
malus - that the act or omission be done "willfully,"
"maliciously," "with deliberate evil intent," and
"with malice aforethought." The maxim is actus non
facit reum, nisi mens sit rea - a crime is not committed
if the mind of the person performing the act
complained of is innocent. As is required of the
other elements of a felony, the existence of
malicious intent must be proven beyond
reasonable doubt.
The existence of animus interficendi or intent
to kill not proven beyond reasonable doubt
The trial court, the CA, and the Solicitor General
are all in agreement that – with the exception of
Villareal and Dizon - accused Tecson, Ama,
Almeda, and Bantug did not have the animus
interficendi or intent to kill Lenny Villa or the other
neophytes. We shall no longer disturb this finding.
As regards Villareal and Dizon, the CA modified
the Decision of the trial court and found that the
two accused had the animus interficendi or intent to
kill Lenny Villa, not merely to inflict physical
injuries on him. It justified its finding of homicide
against Dizon by holding that he had apparently
been motivated by ill will while beating up Villa.
Dizon kept repeating that his father's parking space
had been stolen by the victim's father. As to
Villareal, the court said that the accused suspected
the family of Bienvenido Marquez, one of the
neophytes, to have had a hand in the death of
Villareal's brother.
We cannot subscribe to this conclusion.
According to the Solicitor General himself, the ill
motives attributed by the CA to Dizon and
Villareal were "baseless," since the statements of
the accused were "just part of the psychological
initiation calculated to instill fear on the part of the
neophytes"; that "[t]here is no element of truth in
it as testified by Bienvenido Marquez"; and that the
"harsh words uttered by Petitioner and Villareal are
part of `tradition' concurred and accepted by all the
fraternity members during their initiation rites."
We agree with the Solicitor General
Dizon's way of inflicting psychological pressure
was through hurling make-believe accusations at
the initiates. He concocted the fictitious stories, so
that he could "justify" giving the neophytes harder
blows, all in the context of fraternity initiation and
role playing. Even one of the neophytes admitted
that the accusations were untrue and made-up.
Dizon's behavior must not be automatically viewed
as evidence of a genuine, evil motivation to kill
Lenny Villa.
The existence of animus iniuriandi or
malicious intent to injure not proven beyond
reasonable doubt
Indeed, the threshold question is whether the
accused's initial acts of inflicting physical pain on
the neophytes were attended by animus iniuriandi
amounting to a felonious act punishable under the
Revised Penal Code, thereby making it subject to
Article 4(1) thereof. In People v. Regato, we ruled that
malicious intent must be judged by the action,
conduct, and external acts of the accused. What
persons do is the best index of their intention. We
have also ruled that the method employed, the kind
of weapon used, and the parts of the body on
which the injury was inflicted may be determinative
of the intent of the perpetrator.
XXX We are constrained to rule that the specific
animus iniuriandi was not present in this case. Even
if the specific acts of punching, kicking, paddling,
and other modes of inflicting physical pain were
done voluntarily, freely, and with intelligence,
thereby satisfying the elements of freedom and
intelligence in the felony of physical injuries, the
fundamental ingredient of criminal intent was
not proven beyond reasonable doubt. On the
contrary, all that was proven was that the acts
were done pursuant to tradition. Although the
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additional "rounds" on the second night were held
upon the insistence of Villareal and Dizon, the
initiations were officially reopened with the
consent of the head of the initiation rites; and the
accused fraternity members still participated in the
rituals, including the paddling, which were
performed pursuant to tradition. Other than the
paddle, no other "weapon" was used to inflict
injuries on Lenny. The targeted body parts were
predominantly the legs and the arms. The
designation of roles, including the role of
auxiliaries, which were assigned for the specific
purpose of lending assistance to and taking care of
the neophytes during the initiation rites, further
belied the presence of malicious intent. All those
who wished to join the fraternity went through the
same process of "traditional" initiation; there is no
proof that Lenny Villa was specifically targeted or
given a different treatment. We stress that
Congress itself recognized that hazing is uniquely
different from common crimes. The totality of the
circumstances must therefore be taken into
consideration.
The underlying context and motive in which the
infliction of physical injuries was rooted may also
be determined by Lenny's continued participation
in the initiation and consent to the method used
even after the first day.
The accused fraternity members guilty of
reckless imprudence resulting in homicide
There was patent recklessness in the hazing of
Lenny Villa.
According to the NBI medico-legal officer, Lenny
died of cardiac failure secondary to multiple
traumatic injuries. The officer explained that
cardiac failure refers to the failure of the heart to
work as a pump and as part of the circulatory
system due to the lack of blood. In the present
case, the victim's heart could no longer work as a
pumping organ, because it was deprived of its
requisite blood and oxygen. The deprivation was
due to the "channeling" of the blood supply from
the entire circulatory system - including the heart,
arteries, veins, venules, and capillaries - to the
thigh, leg, and arm areas of Lenny, thus causing the
formation of multiple hematomas or blood clots.
The multiple hematomas were wide, thick, and
deep, indicating that these could have resulted
mainly from injuries sustained by the victim from
fist blows, knee blows, paddles, or the like.
Repeated blows to those areas caused the blood to
gradually ooze out of the capillaries until the
circulating blood became so markedly diminished
as to produce death. The officer also found that
the brain, liver, kidney, pancreas, intestines, and all
other organs seen in the abdominals, as well as the
thoracic organ in the lungs, were pale due to the
lack of blood, which was redirected to the thighs
and forearms. It was concluded that there was
nothing in the heart that would indicate that the
victim suffered from a previous cardiac arrest or
disease.
The multiple hematomas or bruises found in
Lenny Villa's arms and thighs, resulting from
repeated blows to those areas, caused the loss of
blood from his vital organs and led to his eventual
death. These hematomas must be taken in the light
of the hazing activities performed on him by the
Aquila Fraternity. According to the testimonies of
the co-neophytes of Lenny, they were punched,
kicked, elbowed, kneed, stamped on; and hit with
different objects on their arms, legs, and thighs.
They were also "paddled" at the back of their
thighs or legs; and slapped on their faces. They
were made to play rough basketball. Witness
Marquez testified on Lenny, saying: "[T]inamaan
daw sya sa spine." The NBI medicolegal officer
explained that the death of the victim was the
cumulative effect of the multiple injuries suffered
by the latter.
Consequently, the collective acts of the fraternity
members were tantamount to recklessness, which
made the resulting death of Lenny a culpable
felony. It must be remembered that organizations
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owe to their initiates a duty of care not to cause
them injury in the process. With the foregoing
facts, we rule that the accused are guilty of reckless
imprudence resulting in homicide. Since the NBI
medico-legal officer found that the victim's death
was the cumulative effect of the injuries suffered,
criminal responsibility redounds to all those who
directly participated in and contributed to the
infliction of physical injuries.
Our finding of criminal liability for the felony of
reckless imprudence resulting in homicide
shall cover only accused Tecson, Ama,
Almeda, Bantug, and Dizon. Had the Anti-
Hazing Law been in effect then, these five accused
fraternity members would have all been convicted
of the crime of hazing punishable by reclusion
perpetua (life imprisonment). Since there was no law
prohibiting the act of hazing when Lenny died, we
are constrained to rule according to existing laws at
the time of his death. The CA found that the
prosecution failed to prove, beyond reasonable
doubt, Victorino et al.'s individual participation in
the infliction of physical injuries upon Lenny Villa.
As to accused Villareal, his criminal liability was
totally extinguished by the fact of his death,
pursuant to Article 89 of the
Revised Penal Code. [end]
Prosec G: re Villareal: the SC said there was no
intent to kill. Hence only reckless imprudence
resulting to homicide, because: The inititation rites
was just a tradition, they and their parents knew
that there will be initiostion, and there is no anti-
hazing law at the time. Now, there is a law against
hazing.
A was walking. Then here comes B with a lead
pipe and hit the head of A with it. B hit it hard and
thereafter ran away. A went to the hospital,
however, based on the medical certificate no
injury whatsoever was sustained by the head of
A. So there was no injury. Nevertheless, A filed a
case for attempted homicide against B. Therefore,
intent to kill is incumbent to be proven by the
prosecution because the case filed is attempted
homicide. Will B be held liable for attempted
homicide? Was there intent to kill?
There was no intent to kill. Intent to kill is
determined by the following factors:
1. The nature and number of the weapon used
by the offender in the commission of the
crime
2. The nature, number and location of wounds
inflicted/sustained by the victim
3. The manner of committing the crime
4. The acts, deeds or words stated by the
offender before, during or immediately after
the commission of the crime
5. Proof of the victim (?)
Let us apply this in the case - B hit A with a lead
pipe. Was there motive?
>In the problem, there was no motive.
Nature and number of weapon used?
>B used a lead pipe.
Nature, number and location of wound inflicted
on the victim?
>The victim did not sustain any wound despite
the fact that it was hit with a lead pipe.
Manner of committing the crime.
>After hitting A once, B ran away. If he had
intended to kill the victim, he would have hit A
several times.
Act, deeds and words made by the offender
before, during or after the commission of the
crime.
>He just saw the victim, hit the victim thereafter
ran away. All of these would show there was no
intent to kill on the part of said offender.
Therefore, B should not be convicted of attempted
homicide.
People v. Mapalo
SC convicted him only of ill treatment of another
by deed, a form of slight physical injury. Ill
treatment of another by deed is the circumstance
wherein a person was hit or there was injury
caused to the person but there was no (?may
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umubo sa class at nasapawan boses ni Ma'am o.O) from their house at 10oclock in the evening. A
neighbor said, he saw X Y and Z on board in the
On the other hand, how is motive proved? same jeepney with the victim. Another neighbor
>Motive is proved by the testimony of the appeared and made a statement, he said, he saw X
witnesses as to the acts or statements made by Y and Z having a heated argument with the victim
the accused before or immediately after the about 5 meters away from where the victim was
commission of the crime. found dead.
Ex. Before the killing of A, a witness saw B  Here motive is material to determine the
threatening to kill A. Therefore, B would have the criminal liability of the offender because since
motive because of his acts prior to the no one has seen, there was no eye witness to
commission of the crime. Or right after the killing the commission of the crime, proof is done
of A, a witness saw B running away from the scene solely by circumstantial evidence.
of the crime laughing saying "finally, I have my
revenge" there is the motive. So here motive is Who has motive to kill the victim?
established by the acts or statements made by the
accused prior to or after the commission of the  Based on circumstantial evidence, X Y and Z
crime. had the motive to kill the victim.
NOT DURING because in motive, there is no direct The victim was found lying at the staircase of the
evidence. The witness did not see how the crime
house, when the wife arrived, the victim told the
was committed.
wife that “it was PEDRO who killed me” and
You don't need proof of motive if the crime thereafter, he died. There were 3 Pedros in the
committed is an act malum prohibitum. As a general area. Who is the Pedro that should be charged? A
rule motive is immaterial to prove the criminal witness said, he saw PEDRO-A arguing with the
liability of the offender. victim in front the house and he saw PEDRO-A
entered the house of the victim. Therefore, motive
There are however instances when motive is is material to determine the criminal liability of the
material to determine the criminal liability of the offender because there is doubt to the identity of
offender. They are - the offender.
1. When the acts of the offender would result to INTENT MOTIVE
variant crimes moving power
which impels a
2. When the identity of the offender is doubtful
person to do a
3. When the prosecution only has circumstantial use of a particular
specific act to
evidence to prove the commission of the means to achieve a
achieve the desired
crime. desired result
result, therefore it is
In these 3 instances, proof of motive becomes the reason behind
material to determine the criminal liability of the intent
offender. a material element immaterial to
in determining the determine the
criminal liability of criminal liability of
The victim was found on a vacant lot. He has 5 the accused the offender
stab wounds. He was already dead. With 5 fatal established/proven established by the
stab wounds. No one saw who stabbed the victim. by the overt act of acts/statements
But the mother said, X Y and Z fetched the victim the offender or by made by the accused

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the means employed prior to or
immediately after
the commission of
the crime
What negates criminal intent? What may be a
defense against criminal intent?
>it is mistake of fact.
MISTAKE OF FACT (MOF) - is the
misapprehension of facts on the person who
caused injury to another
If a person acted under MOF, he is absolved of
criminal liability because he acted without
criminal intent. That is, had the facts been as he
believed them to be, his act done would have been
lawful and justifiable.
Before one may be absolved of criminal liability
for having acted under MOF, the following are
elements:
1. That the act done would have been lawful
and justifiable had the facts been as the
accused believed them to be
 had it been as he believed, the act performed
would've amounted to a justifying or
exempting circumstance
2. That the intention of the accused in doing
the act must be lawful
 he must be ignited by a noble or lawful or
justifiable intent
3. That the mistake must be without fault,
negligence, careless on the part of the
offender
the offender cannot be negligent in
ascertaining the true facts of the case and at
the same time invoke MOF
*MOF although a defense in intentional felony
cannot be a defense in culpable felony
US v. Ah Chong, G.R. No. 5272, 19 March 1910
Facts: Ah Chong was employed as a cook in
Officer’s Quarters, No. 27 at Fort McKinley, Rizal
Province. He and his fellow servant, the victim
Pascual Gualberto, sleep in a small room at the rear
of the building. The door had no permanent lock,
so they attached a small hook inside the door, and
reinforced it by placing a chair against the door.
One evening, Ah Chong was suddenly awakened
by someone trying to force open the door of the
room. He called out and asked twice who was
there, but got no answer. The noises he heard
convinced him that the door was being opened,
and with the room very dark, Ah Chong feared that
the intruder was a robber or a thief, leapt to his feet
and called out that he will kill the intruder if he
enters the room. At that moment he was struck
above the knee by the edge of the chair, but in the
darkness and confusion he thought that the blow
was inflicted by the intruder. Seizing a kitchen
knife he kept under his pillow, Ah Chong struck
out wildly at the intruder, who turned out to be
Pascual. Pascual died from the stab wounds.
Ah Chong was charged with the crime of
assassination, and the trial court found him guilty
of homicide. During trial he admitted killing
Pascual, but insisted that he acted in self-defense.
Issue: Whether Ah Chong can be held criminally
liable.
Ruling:
In broader terms, ignorance or mistake of fact, if
such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is
a necessary ingredient of the offense charged (e. g.,
in larceny, animus furendi; in murder, malice;
in crimes and misdemeanors generally some
degree of criminal intent) "cancels
the presumption of intent," and works an
acquittal; except in those cases where the
circumstances demand a conviction under
the penal provisions touching criminal
negligence; and in cases where, xxx one
voluntarily committing a crime or misdemeanor
incurs criminal liability for any wrongful act
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committed by him, even though it be different
from that which he intended to commit. [end]
US v. Ah Chong
Ah Chong was acquitted because he acted under
mistake of fact. [M'Garcia: BUT that was because
the case was decided a long time ago. If the case
is decided now, I doubt if there will be an
acquittal. Let's go by the elements: 2 nd and 3rd
elements are present.
However, the 1st element is wanting - that the act
done would have been lawful and justifiable had
the facts been as the accused believed them to be -
the victim was only trying to enter. Will that act
already constitute unlawful aggression?
>No. There is no unlawful aggression because
there was no imminent or immediate danger on
the life and property of the said offender. 1 st
element is wanting.]
The police officers A, B and C were dining in a
restaurant when they noticed a group of men who
are so noisy. And so A looked at them and noticed
that one of them, X had a gun tucked on his waist.
So A went on the back of X and told him "I can see
that you have a gun tucked on your waist. Do you
have a license? I'm a police officer." X said "Yes sir,
I have a license." And A said "Show me your
license." So X stood up and he tried to get his
wallet from his pocket in order to show his
license as requested by A. As he was picking his
wallet, he was turning around to look at A. The
moment he faced A, A shot him. X died.
Prosecuted for homicide, A said he acted under
MOF. He thought, what X was picking was his gun
and that he would be shot by X. Therefore, in self-
defense he shot X first. Will his defense of MOF lie
in his favor?
1st element: wanting. Granting for argument that
what X was picking was the gun, will it constitute
unlawful aggression such that self-defense would
lie? NO, because the gun was not yet pointed at A,
it will not yet bring an immediate danger on the
life
2nd element: present. Let's say that A has the
good intention.
3rd element: wanting. A was negligent, there was
fault or carelessness on his part in ascertaining
the true facts of the case. He was asking for the
license and X said he has one. Definitely, what
would be shown to him would be the license not
the gun.
Therefore, since 2 elements are absent, A cannot
invoke MOF and he should be convicted for
homicide for killing X.
It was around 12o’clock at midnight. The security
guard was already very sleepy when he heard a
noise. He saw 2 persons jumped inside the
premises he is guarding. He called on these 2
persons, but these 2 persons did not mind the
security guard. These 2 persons were armed with
guns, long firearms. And so the he followed them,
opened the warehouse and the lights. Since the
door was open, there was a guy coming from a
room, and the security guard saw a shadow of a
man pointing a gun at him. And so the security
guard fired at the said man, and the man died. It
turned out that the man was not among those
persons who jumped but rather, he was a worker
in the said warehouse who slept there without
permission.
He was prosecuted. Security guard said he acted
under mistake of fact. Was there mistake of fact on
the part of the offender?
1. That the act would have been lawful and
justifiable had the facts been as the accused
believed them to be
 Had the facts been that the man who jumped
was pointing a gun at him. Then the security
guard is justified to shoot the said person.
2. The intention of the security guard was lawful.
3. The mistake was without fault and negligence.
 The said person didn’t ask for permission to
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sleep there. As the security guard believed,
there was no person inside. There was no fault
and negligence in ascertaining the true facts of
the case.
Therefore, the security guard must be acquitted
because he acted under Mistake of Fact.
Yapyuco v. Hon. Sandiganbayan & People,
G.R. Nos. 120744-46, 25 June 2012
Facts: Three informations for murder, frustrated
murder and multiple counts of attempted murder
were filed before the Sandiganbayan against
petitioners Yapyuco, Jr., Cunanan, Jr., Puno
(members of the police); Pamintuan and Reyes
(Brgy. Captains of Quebiawan and Del Carmen,
Pampanga); Puno, Reyes, Manguerra, David,
Lugtu, Lacson, Yu, and Pablan (either members of
the Civil Home Defense Force or civilian volunteer
officers in their barangays), in connection with a
shoot-out which resulted in the death of Licup and
injuries to Villanueva.
One evening, Villanueva, Licup, and four other
companions were leaving the house of Salangsang
as guests at the barrio fiesta celebrations.
Villanueva was driving the Tamaraw jeepney at 5-10
KPH with his headlights dimmed, Licup was in the
passenger seat while the rest were at the back. As
they were traversing a left curve on the road, they
were suddenly met with gunfire. The shots
originated from Yapyuco, et al., who were
positioned on the front yard of Naron’s residence,
which was on the right side of the road right after
the curve. The bullets penetrated the Tamaraw’s
passenger side and hit Villanueva and Licup. The
latter subsequently died as a result.
Only Yapyuco, Jr. testified for the defense. He
alleged that Pamintuan, thru David, sought police
assistance concerning the reported presence of
NPA members in Quebiawan. Paminutan sought
the help of barangay captain Reyes, who brought a
number of armed men, and that there were Cafgu
members at the Naron residence. When the
Tamaraw driven by Villanueva drew closer,
Pamintuan announced that it was the target
vehicle; thus Yapyuco, Cunanan and Puno took
post in the middle of the road. Yapyuco signaled at
the Tamaraw to stop, but as the latter did
accelerated to the left instead, the police fired a
warning shot. The Tamaraw still went forward,
hence the police were impelled to shoot its tires.
Instantaneously, gunshots from Naron’s yard hit
the Tamaraw.
The Sandiganbayan found that Yapyuco, et al. were
guilty as co-principals for homicide for the death
of Licup and attempted homicide for the injury
sustained by Villanueva, and acquitted them of
attempted murder for the rest of Licup and
Villanueva’s companions. It held that the acts
Yapyuco, et al. performed preparatory to the
shooting demonstrated a clear intent to kill the
occupants of the Tamaraw.
The Sandiganbayan also held that the theory of
mistaken belief could not likewise benefit
Yapyuco, et al. because there was supposedly no
showing that they had sufficient basis or probable
cause to rely fully on Pamintuan’s report that the
victims were armed NPA members, and they have
not been able by evidence to preclude ulterior
motives or gross inexcusable negligence when they
acted as they did.
Issue: Whether Yapyuco, et al. were not liable due
to mistake of fact.
Ruling: Petitions DENIED.
The invocation of the concept of mistake of
fact faces certain failure. In the context of
criminal law, a “mistake of fact” is a
misapprehension of a fact which, if true, would
have justified the act or omission which is the
subject of the prosecution. Generally, a reasonable
mistake of fact is a defense to a charge of crime
where it negates the intent component of the
crime. It may be a defense even if the offense
charged requires proof of only general intent. The
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inquiry is into the mistaken belief of the defendant,
and it does not look at all to the belief or state of
mind of any other person.
A proper invocation of this defense requires
(a) that the mistake be honest and reasonable;
(b) that it be a matter of fact; and
(c) that it negate the culpability required to
commit the crime or the existence of the
mental state which the statute prescribes
with respect to an element of the offense.
The justification of an act, which is otherwise
criminal on the basis of a mistake of fact, must
preclude negligence or bad faith on the part of
the accused.
This brings us to whether the guilt of petitioners
for homicide and frustrated homicide has been
established beyond cavil of doubt. Xxx The
prosecution is burdened to prove corpus delicti
beyond reasonable doubt either by direct evidence
or by circumstantial or presumptive evidence.
Corpus delicti consists of two things: first, the
criminal act and second, defendant's agency in the
commission of the act. xxx Proof of homicide or
murder requires incontrovertible evidence, direct
or circumstantial, that the victim was deliberately
killed (with malice), that is, with intent to kill. Such
evidence may consist in the use of weapons by the
malefactors, the nature, location and number of
wounds sustained by the victim and the words
uttered by the malefactors before, at the time or
immediately after the killing of the victim. If the
victim dies because of a deliberate act of the
malefactors, intent to kill is conclusively
presumed. In such case, even if there is no
intent to kill, the crime is homicide because
with respect to crimes of personal violence, the
penal law looks particularly to the material
results following the unlawful act and holds
the aggressor responsible for all the
consequences thereof. Evidence of intent to kill
is crucial only to a finding of frustrated and
attempted homicide, as the same is an essential
element of these offenses, and thus must be
proved with the same degree of certainty as that
required of the other elements of said offenses.
In the instant case, Yapyuco, et al., without
abandoning their claim that they did not intend to
kill anyone of the victims, admit having willfully
discharged their service firearms; and the manner
by which the bullets concentrated on the passenger
side of the jeepney permits no other conclusion
than that the shots were intended for the persons
lying along the line of fire. Xxx The rule is that in
ascertaining the intention with which a specific act
is committed, it is always proper and necessary to
look not merely to the act itself but to all the
attendant circumstances so far as they develop in
the evidence.
The firearms used by petitioners were either M16
rifle, .30 caliber Garand rifle or .30 caliber carbine.
While the use of these weapons does not always
amount to unnecessary force, they are nevertheless
inherently lethal in nature. At the level the bullets
were fired and hit the jeepney, it is not difficult to
imagine the possibility of the passengers thereof
being hit and even killed. It must be stressed that
the subject jeepney was fired upon while it was
pacing the road and at that moment, it is not as
much too difficult to aim and target the tires
thereof as it is to imagine the peril to which its
passengers would be exposed even assuming that
the gunfire was aimed at the tires – especially
considering that petitioners do not appear to be
mere rookie law enforcers or unskilled neophytes
in encounters with lawless elements in the streets.
Thus, judging by the location of the bullet
holes on the subject jeepney and the firearms
employed, the likelihood of the passenger next
to the driver – and in fact even the driver
himself – of being hit and injured or even killed
is great to say the least, certain to be precise.
This, we find to be consistent with the uniform
claim of Yapyuco, et al. that the impulse to fire
directly at the jeepney came when it occurred to
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them that it was proceeding to evade their ACTS MALA PROHIBITA
authority. And in instances like this, their natural  Acts which are only wrong because there is a
and logical impulse was to debilitate the vehicle by law that prohibits and penalizes it
firing upon the tires thereof, or to debilitate the  Not inherently wrong
driver and hence put the vehicle to a halt. The  e.g. illegal possession of unlicensed firearms
evidence we found on the jeepney suggests that
ACTS MALA IN SE
petitioners’ actuations leaned towards the latter.
 Acts which are inherently evil or wrong
 Wrong per se, even if there's not law, it
This demonstrates the clear intent of
is evil e.g. killing another, taking the
petitioners to bring forth death on Licup who
thing of another
was seated on the passenger side and to
MALA IN SE MALA PROHIBITA
Villanueva who was occupying the wheel,
together with all the consequences arising Inherently evil, Not inherently evil
from their deed. The circumstances of the wrong per se or wrong
shooting breed no other inference than that the Criminal liability is Criminal liability is
firing was deliberate and not attributable to based on the intent based on the mere
sheer accident or mere lack of skill. or morality of the doing of the
offender prohibited act
Verily, the shooting incident subject of these Good faith/lack of Good faith/lack of
petitions was actualized with the deliberate intent criminal intent is a criminal intent is not
of killing Licup and Villanueva, hence we dismiss valid defense a valid defense
Yapyuco’s alternative claim in G.R. No. 120744
that he and his co-petitioners must be found guilty Modifying Modifying
merely of reckless imprudence resulting in circumstances such circumstances are
homicide and frustrated homicide. Here is why: as mitigating and not considered in the
aggravating are imposition of
First, the crimes committed in these cases are not considered by the penalty UNLESS
merely criminal negligence, the killing being court in the otherwise provided
intentional and not accidental. In criminal imposition of by the special penal
penalty law
negligence, the injury caused to another should be
unintentional, it being the incident of another act Degree of the Degree of
performed without malice. participation of the participation by the
offender (principal, offender not
Second, that petitioners by their acts exhibited accomplice or considered all
conspiracy, as correctly found by the accessory) is perpetrators of the
Sandiganbayan, likewise militates against their considered in the act are punished
claim of reckless imprudence. [end] imposition of the equally
penalty
Can a crime be committed without criminal Stage (attempted, The only stage
intent? frustrated or considered is the
Yes. There are 2 instances. consummated) is consummated stage.
1. Culpable Felony taken into No attempted or
2. When the crime is in violation of special consideration in the frustrated stage.
penal laws imposition of
penalty

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**Not all acts punishable by special penal laws are
mala prohibita!! There are some special penal
laws which punish acts mala in se.
e.g. plunder is a special penal law yet the SC said
plunder is malum in se. criminal intent matters.
Garcia v. CA
Garcia was the head of the board of canvassers.
The number of votes of Sen. Pimentel was
decreased. In decreasing the number of votes, the
said votes were not added to any candidate. So it
did not favor any candidate. So according to him,
he acted in good faith, no criminal intent. But
according to the other side, it is a special penal
law, therefore they should be held criminally
liable. What did the SC say?
>The act of decreasing or increasing a candidate's
vote although punished by special penal law is a
malum in se. it is inherently evil or wrong.
What about in this case, it is a malum in se. And
Garcia and company said, they acted in good faith,
they were already so tired, because of the
counting. So how come they were still convicted?
>According to the SC: They should exercise
extraordinary diligence in the counting of the
votes. Hence, they are still held criminally liable.
The defense of good faith would not lie in their
favor as board of canvassers.
Garcia v. CA & People, G.R. No. 157171, 14
March 2006
Facts: Garcia was Chairman of the Board of
Canvassers for the 1995 Elections in Alaminos,
Pangasinan. She, along with other members of the
board of canvassers were charged before the RTC
of Alaminos with violation of Sec. 27(b) of R.A.
6646 for decreasing the votes of the complainant,
senatorial candidate Aquilino Pimentel, Jr.
Pimentel received 6,1921 votes, but the Statement
of Votes reflected only 1,921. The RTC convicted
only Garica and acquitted the rest of the accused.
The CA affirmed the RTC. Garcia claims that there
was no motive on her part to reduce Pimentel’s
votes.
Issue: Whether good faith and lack of criminal
intent a valid defense for a violation of Sec. 27(b),
R.A. 6646.
Ruling: Petition DENIED.
Generally, mala in se felonies are defined and
penalized in the Revised Penal Code. When the
acts complained of are inherently immoral, they are
deemed mala in se, even if they are punished by a
special law. Accordingly, criminal intent must be
clearly established with the other elements of the
crime; otherwise, no crime is committed. On the
other hand, in crimes that are mala prohibita, the
criminal acts are not inherently immoral but
become punishable only because the law says they
are forbidden. With these crimes, the sole issue is
whether the law has been violated. Criminal intent
is not necessary where the acts are prohibited for
reasons of public policy.
Clearly, the acts prohibited in Section 27(b) are
mala in se. For otherwise, even errors and mistakes
committed due to overwork and fatigue would be
punishable. Given the volume of votes to be
counted and canvassed within a limited amount of
time, errors and miscalculations are bound to
happen. And it could not be the intent of the law
to punish unintentional election canvass errors.
However, intentionally increasing or decreasing the
number of votes received by a candidate is
inherently immoral, since it is done with malice and
intent to injure another.
Criminal intent is presumed to exist on the part of
the person who executes an act which the law
punishes, unless the contrary shall appear. Thus,
whoever invokes good faith as a defense has the
burden of proving its existence.
There is a noticeable discrepancy in the addition
of the subtotals to arrive at the grand total of
votes received by each candidate for all 159
precincts in SOV No. 008423. The grand total of
the votes for Senator Aquilino Pimentel, was only
1,921 instead of 6,921, or 5,000 votes less than
the number of votes private complainant actually
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received.
During trial of this case, Garcia admitted that she
was indeed the one who announced the figure of
1,921, which was subsequently entered by then
accused Viray in his capacity as secretary of the
board. Garcia likewise admitted that she was the
one who prepared the COC, though it was not her
duty. To our mind, preparing the COC even if it
was not her task, manifests an intention to
perpetuate the erroneous entry in the COC.
Neither can this Court accept petitioner's
explanation that the Board of Canvassers had no
idea how the SOV and the COC reflected that
private complainant had only 1,921 votes instead
of 6,921 votes. As chairman of the Municipal
Board of Canvassers, Garcia’s concern was to
assure accurate, correct and authentic entry of the
votes. Her failure to exercise maximum efficiency
and fidelity to her trust deserves not only censure
but also the concomitant sanctions as a matter of
criminal responsibility pursuant to the dictates of
the law [end].
An act mala in se CANNOT absorb an act mala
prohibita, and vice versa:
Loney, et al. v. People, G.R. No. 152644, 10
February 2006 [Marcopper]
Facts: Petitioners Loney, Reid, and Hernandez are
the officers of Marcopper Mining Corporation
(Marcopper), a mining corporation mining in
Marinduque. One day, the tailings Marcopper
stores gushed out from its tailings pit and into the
Boac and Makanlupit rivers.
The DOJ separately charged Loney, et al. before
the MTC of Boac, Marinduque with violations of
the Water Code of the Philippines, the National
Pollution Control Decree of the Philippines (PD
984), the Philippine Mining Act of 1995, and Art.
365 of the RPC for reckless imprudence resulting
to damage to property. Loney, et al. moved to
quash the informations as they charged more than
one offense for a single act.
The MTC quashed the informations for violation
of the Water Code and the Pollution Control
Decree, and maintained the informations for
violation of the Mining Act and the RPC. The RTC
Boac set aside the quashal of the MTC and ordered
the reinstatement of all the charges. The CA
affirmed the RTC
Issue: Whether all the charges filed against
petitioners except one should be quashed for
duplicity of charges and only the charge for
Reckless Imprudence Resulting in Damage to
Property should stand.
Ruling: Petition Denied. CA decision affirmed.
There is duplicity (or multiplicity) of charges
when a single Information charges more than
one offense.
Xxx On petitioners' claim that the charge for
violation of Article 365 of the RPC "absorbs" the
charges for violation of PD 1067, PD 984, and RA
7942, suffice it to say that a mala in se felony
(such as Reckless Imprudence Resulting in
Damage to Property) cannot absorb mala
prohibita crimes (such as those violating PD
1067, PD 984, and RA 7942). What makes the
former a felony is criminal intent (dolo) or
negligence (culpa); what makes the latter
crimes are the special laws enacting them.
[end]
X killed B with the use of motor vehicle. X hit and
bumped B. X was charged with murder. So the
information charges an intentional felony of
murder. Trial on merits ensued, after the
prosecution presented evidence, the defense
presented evidence.
The defense was able to show, to prove beyond
reasonable doubt that the reason for the said act
of killing B was because X lost control of his brake.
Therefore, according to them, there was only
imprudence and so X should only be held liable
for reckless imprudence resulting in homicide.
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The judge believed the defense. So in an
information for an intentional felony of murder,
the said court convicted X only of reckless
imprudence resulting in homicide, a culpable
felony.
Is the judge correct? Can the judge convict a
person of a culpable felony in an information that
charges him of intentional felony?
>Yes. The reason is that a culpable felony is
necessarily included in an intentional felony
because a culpable felony is of lesser offense than
that of intentional felony.
*A malum prohibitum is not necessarily included
in malum in se. Therefore, one cannot absorb the
other. But a culpable felony [may be included in]
an intentional felony.
Art. 4. Criminal liability. — Criminal liability
shall be incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different
from that which he intended.
2. By any person performing an act which would
be an offense against persons or property,
were it not for the inherent impossibility of its
accomplishment or on an account of the
employment of inadequate or ineffectual
means.
Proximate Cause Doctrine (PCD)
By any person committing a felony (delito) although
the wrongful act done be different from that which he
intended.
Elements (Garcia v. People)
1. The intended act is a felonious act
2. The resulting act is a felony
3. The resulting act is the direct, natural and
logical consequence of the felonious act of the
offender
Therefore, for one to be criminally liable under
the PCD, it is necessary that the offender is
performing a felonious act and since he is
performing a felonious act, he becomes liable for
all the resulting crime although different from
that which he intended. Provided that the
resulting felony is the direct, natural and logical
consequence of his felonious act. Otherwise
stated, his felonious act must be the proximate
cause of the resulting felony.
For one to be criminally liable under the PCD, it is
not necessary that the offender should have even
touch the body of the victim. It suffices that the
felonious act performed by the offender has
generated in the mind of the victim, fear for his
life. By reason of that fear for his life the victim
performed acts, made risk that injured himself.
The accused will become criminally liable.
PROXIMATE CAUSE (PC) - the cause that sets in
to motion all other causes and which unbroken by
efficient intervening cause produces the felony
without which the felony would have not been
committed. Therefore, for one to be criminally
liable under the PCD, it is necessary that the
felonious act and the resulting felony must not be
broken by any efficient intervening cause. No
efficient or supervening intervening cause must
have broken the causal connection between the
felonious act of the offender and the resulting
felony.
EFFICIENT INTERVENING CAUSE (EIC) - an
active force which is a distinct act absolutely
foreign from the felonious act of the offender.
Therefore, in order that an act is considered an
EIC, it is necessary that it is totally foreign from
the felonious act that is performed by the
offender.
PC is not always the immediate cause. At times it
may be a remote cause.
Ex. A was driving his car along SLEX followed by
B, by C, by D, by E. When A reached the tollgate, he
stopped to pay the toll, so B stopped as well as C
and D. E however was very sleepy, he did not put
to stop so he hit D, D hit C, C hit B, B hit A. Because
of the impact the car of A sustained serious
damage.
Q: What is the PC of the damage sustained by the
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car of A?
 The PC was E because it was the car of E which
sets into motion all other cars to bump each
other. It was not the immediate cause because
the immediate cause was the car of B because
it is the car of B which hit the car of A. So a PC
is not always the immediate cause, at times it
may be the remote cause.
Ex. A bus was going to Quezon, suddenly 4 men
boarded a bus, 2 mean seated at front seats and
the other 2 seated at back. While they were
traversing a zigzag portion on the road, the 4 men
stood up and announced a hold up. One
passengers was so afraid of holdupper as he had
a previous experience of holduppers. He was so
afraid that he opened a window and he jumped
out of a window, he fell on a cliff and he died.
Q: Are the holduppers liable for the death of the
passenger?
 Yes. The holduppers in announcing a holdup
are committing a felonious act. The resulting
act was a felony, the resulting felony was the
direct, natural and logical consequence of the
felonious act of the offenders. Were it not for
the holduppers announcing a hold up, there
would be no fear on the mind of the passenger.
But because of the announcement, there was
fear on the mind of passenger and by reason
of that fear, he made risk that caused his
death. The holduppers are liable for robbery
with homicide because they are liable for the
death of the passenger.
Ex. X was having a siesta on the terrace of their
house on a rocking chair. Suddenly he was
awakened by the noise of the children. He found
out that it was coming from the backyard of their
house, saw 4 boys harvesting his mango tree. So
he told the boys to come down the tree, otherwise,
he will be calling the police and let them be
arrested. The boys hurriedly went down the tree.
One boy from the top most portion of the tree
jumped down and his head hit a big stone. He
suffered hemorrhage, thereafter he died.
Q: Is X criminally liable for the death of the boy?
First element, the intended act is a felonious act.
He was not committing a felonious act. He was
just acting his right when he said he will call the
police considering that the boys were taking his
mangoes, they were committing theft. Therefore,
he was just acting within his right. Since X was not
committing a felonious act, he cannot be held
criminally liable for the resulting felony.
So if you are given a problem, the first thing you
should do is to determine if the person is
committing a felonious act. If not, a person
cannot be held liable for the resulting felony. If he
is, then he is liable for the resulting felony.
In the same case, X told the boys, if you will not
come down I have here my shotgun, I will shoot
each one of you and he fired shots in the air. The
boys were so afraid and hurriedly went down, one
of them jumped, fell and suffered serious physical
injuries because of his broken legs.
Is X criminally liable for the injuries sustained by
the boy?
> Yes. Because this time he was committing a
felonious act. He was threatening to shoot the
children. It is a felonious act amounting to grave
threats. Therefore, this time he is criminally liable
for the resulting felony although different from
that which he intended.
A and B, they are bf and gf. The bf promised to
_________marry B at night. But B waited in vain,
A did not arrive. Instead she only received a text
message saying that A would not be able to come,
A could not marry B because A is already a married
man with 5 children. So B became so sad.
Frustrated, she began crying terribly and went out
of the house, walked on the streets, not on her
own rightful self. She fell on a canal and she died.
Is A the bf, then author of the death of the said
victim? In the first place, the bf, when he divulged
that he is a married man and could not marry the
girl is NOT committing a felonious act. Since in
the first place he is not committing a felonious act,
therefore, he cannot be liable for any resulting
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felony. As such, he cannot be liable for the death
of the said girl.
Same problem, but with added facts. So this time,
when the girl learned that the man could not marry
her. She went on the top most portion of the
building, decided to commit suicide to take her
own life. She jumped. However, as she was falling,
she fell on a child. The girl was saved but the child
was pinned down and died.
Is A the bf liable for the death of the child? How
about the woman, is the woman liable for the death
of the child?
Again, the man is not liable. He was not
performing any felonious act, therefore he is not
liable for any resulting felony.
How about the said woman?
When the said woman was committing suicide, she
was not committing a felonious act, because
suicide is not a felony either the RPC or any special
penal law in PH jurisdiction. It is not a felonious
act.
However, in performing said lawful act, she did not
do so with due care. Since she did not do so with
due care. Since she did not do so with due care, she
becomes liable for a CULPABLE FELONY.
So here there is a simple negligence on the part of
the said woman, therefore, the said woman may be
held liable for simple negligence resulting to
homicide for the death of the said child. Although
she was performing a lawful act, she did not do so
with due care, she caused an injury by an accident
on the part of the offended party. Hence she can
be liable for simple negligence resulting to
homicide.
For one to be criminally liable under the PCD it is
necessary that there is no efficient intervening
cause that has broken the chain between the
felonious act and the resulting felony.
Urbano vs. IAC
A case cited in People vs. Villacorta
Urbano and Villacorta were both not convicted of
homicide. The 2 cases have almost similar facts.
People vs. Villacorta
January 23, 2002, there was a stabbing incident.
Cruz was stabbed by Villacorta on the left side of
his body with a sharpened bamboo stick. He was
brought to the Tondo Medical Center. He was
released on the very same day as outpatient
because his wound was not fatal. February 14,
2002 he was brought to San Lazaro Hospital. He
was already suffering from tetanus infection. A
day after February 15 he died.
The cause of his death was tetanus infection.
Villacorta was prosecuted for the crime of
homicide for the death of Cruz. The lower court
convicted him.
SC: Citing the Urbano case, he cannot be convicted
of the crime of homicide. Based on the expert
testimony of the doctor, the incubation period of
the tetanus virus is within 14 days. In the case, it
took the victim 22 days before he died. Therefore
the stab wound was without tetanus virus. Cruz
may have performed acts which brought about
the tetanus virus. The stabbing was only a remote
cause and the tetanus infection was the
proximate infection which brought about the
death of the victim.
So Villacorta was only convicted of slight physical
injuries because they were not able to prove
intent to kill. First, no evidence of motif. Second
nature and number of weapon used. A sharpened
bamboo stick, not even a little weapon made of
metal. Third, the nature, number and location of
wound. It was only on the left side of the body.
Fourth, manner of committing the crime. After
one stabbing, there was no more. So from
homicide, he was only convicted of slight physical
injury punished by the lowest penalty arresto
menor, 1-30days or fine of not more than P200.
Urbano vs. IAC
Javier was hacked by Urbano on his right palm.
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Javier suffered an incised wound and brought to
the hospital. There was settlement. Thereafter he
was released. However, after 22 days he was
brought to the hospital, he was already suffering
from tetanus poisoning. The next day he died.
SC: same reasoning by the SC. The act committed
by Javier after he was released from the hospital,
the fishing, going to the farm was considered as
the proximate cause that brought about the
tetanus virus on his incised wound. Therefore he
was not convicted of the crime of homicide but
only physical injuries.
So it is necessary that there no EIC that will rate
the causal connection between the felonious act
of the offender the resulting felony.
Belbis, Jr. & Brucales v. People, G.R. No.
181052, 14 November 2012
Facts: Petitioners Belbis, Jr. and Brucales were
charged with homicide in the RTC of Tabasco
City, Albay for the death of Jose Bahilio.
On the evening of December 9, 1997, Veronica
Dacir heard her live-in partner Bahilio shouting
and calling her name. She went outside their house
and saw Bahilio walking towards their house, with
blood on this back and shorts. Bahilio told
Veronica that he was held by Boboy (Alberto
Brucales), while Paul (Rodolfo Belbis, Jr.) stabbed
him. He was rushed to the hospital where it was
found that Bahilio suffered 4 stab wounds at the
back and buttocks. He was confined for 6 days and
was discharged on 15 December, and was due to
return on the 22nd. He failed to do so due to
financial constraints.
Dacir brought back Bahilio to the hospital on 1
January 1998 because he was complaining of
urinary retention (unable to empty the bladder)
and back pain. He was discharged on 3 January
upon his request. On 7 January he was brought
back to the hospital where it was found out that
his kidney had acute inflammation (and pus
formation and scarring) due to infection. Dacir
died on the same day due to multiple organ failure.
Belbis, Jr. and Brucales claimed self-defense, as
Bahilio, a barangay tanod, attacked Belbis, Jr. with a
bolo concealed as a nightstick, but the latter was
able to parry the attack. Brucales was only
watching and telling the two to stop fighting.
The RTC convicted Belbis, Jr. and Brucales of
homicide but appreciated incomplete self-defense.
The CA modified the RTC ruling, declaring that
there was no self-defense.
Issue: Whether the stab wounds are not the
proximate cause of Bahilio’s death as the latter
lived for some time after the stabbing.
Ruling: Petition DENIED.
What really needs to be proven in a case when
the victim dies is the proximate cause of his
death. Proximate cause has been defined as
"that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which
the result would not have occurred." The
autopsy report indicated that the cause of the
victim's death is multiple organ failure.
According to the doctor who conducted the
autopsy, the kidneys suffered the most serious
damage. Although he admitted that autopsy
alone cannot show the real culprit, he stated
that by having a long standing infection caused
by an open wound, it can be surmised that
multiple organ failure was secondary to a long
standing infection secondary to stab wound
which the victim allegedly sustained. What is
important is that the other doctors who
attended to the wounds sustained by the
victim, specially those on the left and right
lumbar area, opined that they affected the
kidneys and that the wounds were deep
enough to have caused trauma on both
kidneys.
Thus, it can be concluded that without the
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stab wounds, the victim could not have
been afflicted with an infection which later
on caused multiple organ failure that caused
his death. The offender is criminally liable
for the death of the victim if his delictual
act caused, accelerated or contributed to
the death of the victim [end].
Ex. A and B were fighting. A stabbed B. B
sustained a less serious physical injuries. B was
brought to the hospital, it was not a serious
wound, however; because of the negligence or
careless treatment of the doctor, this not serious
wound became a very serious wound which later
on caused the death of B. The relatives of B filed a
case of homicide against A.
Is A liable of homicide for the death of B? Or
would you consider the careless treatment of the
doctor as an EIC?
 A is liable for the death of B. The negligence or
careless treatment of the doctor cannot be
considered as an EIC. The negligent treatment
of the doctor was an active force but it is not a
distinct act or fact absolutely foreign from the
felonious act of the offender. Because
precisely he needed medical intervention, he
needed treatment of the doctor because he
sustained a stab wound from A. Therefore,
there is a connection between the felonious
act and the medical treatment. It there for
cannot be considered as an EIC. The doctor’s
negligence would only make him liable
administratively but not criminally.
People v. Acuram, G.R. No. 117954, 27 April
2000
Facts: Acuram was charged with murder in the
RTC of Cagayan de Oro [CDO] City for the death
of Orlando Manabat.
One evening, Orlando and his companions were at
the right side of the highway, waiting for a ride
home. They flagged down an approaching jeepney,
which swerved dangerously towards them. One of
Orlando’s companions shouted at the jeep, and a
passenger shouted back. Immediately thereafter,
two gunshots rang out, accompanied by sparks
from the front right side of the jeepney. Orlando was
hit on the right knee; thus his companions brought
him to a medical center, where his wounds were
bandaged. Later, he was transferred to a hospital
as he needed blood transfusion. The doctor found
that Orlando had low blood pressure [BP], so he
decided to operate on Orlando when his BP
stabilized. The next day, Orlando underwent
surgery, but a few hours afterwards he died due to
massive blood loss due to gunshot wound.
The police investigation revealed that the appellant
Acuram, a policeman, was seated at the front, right
side of the jeepney, and was the only passenger
carrying a firearm. During trial, Acuram denied
firing his Armalite. The RTC convicted him of
murder. Hence the appeal to the SC.
Issue: Whether the lack of prompt and proper
medical attention is an efficient intervening cause
of the death of Orlando.
Ruling: Appeal DENIED. Acuram is guilty of
Homicide.
Lastly, in his attempt to exculpate himself, Acuram
blames the death of the victim on the lack of
prompt and proper medical attention given. He
insists that the delay in giving proper medical
attendance to the victim constitutes an efficient
intervening cause which exempts him from
criminal responsibility. This assertion is
disingenuous, to say the least. Acuram never
introduced proof to support his allegation that the
attending doctors in this case were negligent in
treating the victim. On the contrary, the attending
doctor xxx tried his best in treating the victim by
applying bandage on the injured leg to prevent
hemorrhage. He added that the victim was
immediately given blood transfusion xxx when the
doctor found out that the victim had a very low
blood pressure. Thereafter, the victim's blood
pressure stabilized. Then, the doctor operated the
victim as the main blood vessel of the victim's right
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leg was cut, thereby causing massive loss of blood.
The surgery was finished in three hours.
Unfortunately, the victim died hours later.
We cannot hold the attending doctors liable for the
death of the victim. The perceived delay in
giving medical treatment to the victim does
not break at all the causal connection between
the wrongful act of Acuram and the injuries
sustained by the victim. It does not constitute
efficient intervening cause. The proximate cause of
the death of the deceased is the shooting by the
appellant. It is settled that anyone inflicting injuries
is responsible for all the consequences of his
criminal act such as death that supervenes in
consequence of the injuries. The fact that the
injured did not receive proper medical
attendance would not affect Acuram’s criminal
responsibility. The rule is founded on the
practical policy of closing to the wrongdoer a
convenient avenue of escape from the just
consequences of his wrongful act. If the rule
were otherwise, many criminals could avoid just
accounting for their acts by merely establishing a
doubt as to the immediate cause of death.
NOTE: Homicide because treachery was not
proven. The shooting was done at the spur of the
moment [end].
Ex. A and B were friends. After farming while they
were having a drinking spree, they had a political
discussion, A was pro PNoy and B was pro GMA.
Their agreement heated, B stood up and broke a
bottle of beer, stabbed A. A was wounded. They
parted ways. A was on his way home when
suddenly it rained. After it rained there was
lightning and A was hit by lightning. A died. The
heirs of A filed a case of homicide against B.
Is B criminally liable for the death of A?
 Under the PCD, B is not criminally liable for
the death of A because there was an EIC that is
the lightning. The lightning was an active force
which is a distinct act or fact absolutely
foreign from the felonious act of the offender
which was the stabbing of the victim.
Therefore he cannot be held liable for the
death of A but only physical injuries sustained
by the victim.
3 SITUATIONS WHEREIN A PERSON BECOMES
CRIMINALLY LIABLE FOR THE RESULTING
FELONY ALTHOUGH DIFFERENT FROM THAT
WHICH HE INTENDED:
1. Abberatio Ictus - mistake in the blow
A situation wherein the offender directed a blow
at his intended victim but because of poor aim,
the blow landed on another victim.
Ex. A saw his enemy B walking on the pedestrian
lane. With intent to kill, A pulled out his pistol and
shot B. However, he has poor aim, so instead of
hitting his target B, the bullet landed on C. C died.
B was not hit at all.
What are the crimes or crime committed by A?
 In so far as B is concerned, A is liable for
attempted murder because he intended to kill
B. he already performed an overt act when he
fired the gun with intent to kill against B. there
was treachery, the victim was totally
defenseless. However because of poor aim it
was C who died.
 In so far as C is concerned, the crime
committed is homicide.
Therefore, of what crime will you charge and
convict A?
 There are two crimes committed. Against B
attempted murder, against C homicide. But
since this 2 crimes were brought about by a
single act, it will give rise to a complex crime
under Art. 48. Under Art. 48 when a single act
constitutes two or more grave or less grave
felonies, we have compound crime or a
complex crime.
The crime committed by A is attempted murder
with homicide. This is because it results from the
single act of the crime.
Ex. A fired B, but because of poor aim, C was hit. C
sustained a fatal wound, a mortal wound.
However, C was immediately brought to the
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hospital and he survived because of immediate
medical intervention.
 In so far B is concerned, the crime committed
is attempted murder.
In so far as C, what crime is committed? Is it
frustrated homicide?
 It is not frustrated homicide because in so far
as C is concerned, there was no intent to kill
on the part of C but since C suffered a fatal
wound but survived, he is liable for serious
physical injuries. Therefore the crime
committed by A is a complex crime of
attempted murder with serious physical
injuries. A single act constitutes one grave
felony which is attempted murder and one
less grave felony which is serious physical
injuries.
What if he sustained a less serious wound?
 Attempted murder with less serious physical
injuries.
What if when C was hit by the bullet, C only
sustained a slight physical injury which is a light
felony, are you going to complex?
 This time you cannot complex because under
Art. 48, you can only complex grave and less
grave felonies. You cannot complex a light
felony. Therefore, there would be 2 cases filed
separately. Attempted murder in so far as B is
concerned. Slight physical injury in so far as C
is concerned. So 2 informations, 2 cases must
be filed in the court.
People v. Violin, et al., G.R. No. 114003-06, 14
January 1997
Facts: Appellants Violin, Cherriguene, Allego,
Yazar were charged with murder for the death of
Dioscoro Astorga, Jr. and frustrated murder for
the wounding of Darmo Astorga in the RTC of
Catbalogan, Samar. Appellants Catalino Figueroa
and Miguel Figueroa were also charged with
murder and frustrated murder in connection with
the same incident.
One New Year’s eve, Allego, Punong Barangay of
San Jose, sought the help of Dioscoro, a police
station Commander, to settle a dispute the former
had with a Mrs. Agas, a resident of San Jose.
Dioscoro left with his brother Darmo and Allego
for San Jose. Violin, Cherriguene and Yazar joined
the three in the boat ride to San Jose. As Mrs. Agas
was not yet home, Dioscoro and Darmo were
forced to spend the night in Allego’s house.
At 4AM the following morning, the brothers were
awoken by Allego, who invited them to partake of
some food and liquor. Shortly afterwards,
Dioscoro went to relieve himself, but was
instructed by Allego to do so outside the house.
Suddenly, Darmo heard several gunshots. He ran
towards the door, only to see Dioscoro bleeding,
staggering and about to fall. Dioscoro warned him
to hide or he might be also be shot by Violin,
Cherriguene and Yazar. Darmo then hid under a
table. From there he saw Violin shoot at Dioscoro.
A stray bullet fired from the firearm of Violin
grazed the right side of Darmo's head.
Dioscoro died due to “cardiorespiratory failure
secondary to severe hemorrhage resulting from his
multiple gunshot wounds”
The defense invoked alibi as a defense for Violin,
et al.
The RTC ruled that Violin, Cherriguene and Yazar
are guilty of murder and frustrated murder, and
acquitted the Figueroas for insufficiency of
evidence.
Issue: Whether Violin is guilty of frustrated
murder for the wounding of Darmo.
Ruling:
The RTC in the frustrated murder charge found
that Violin in firing his Armalite rifle at Dioscoro
also hit his younger brother Darmo on his head
particularly on the right parietal region which injury
would have caused his death had it not been for
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the timely medical assistance rendered him. The
crime committed was frustrated murder because
there was treachery and the appellants who
conspired to kill the [Figueroa](sic., should be
“Astorga”) brothers performed all the acts of
execution but did not produce the result, the death
of Darmo, due to a cause entirely independent of
their will.
Again the Court cannot agree. The crime of slight
physical injuries, not frustrated murder, was
committed against Darmo. Violin fired at
Dioscoro Jr. and not at Darmo. There is not the
slightest indication that at that time Violin knew
that Darmo was hiding under a table. Darmo
himself admitted that he was injured by a stray
bullet which grazed the right parietal region of his
head. The wound was diagnosed as superficial and
required treatment only for three (3) days [end].
X molested the daughter of Y. Y wanted to kill X,
to take a revenge. Y looked for X, Y saw X on
board a tricycle. And so Y went near X and fired a
shot at X. but because of lack of precision, the
bullet landed on the driver of the tricycle and not
on X. The driver died. What crime or crimes have
been committed by Y?
In so far as X, the intended victim is concerned,
the crime committed is attempted murder. There
was intent to kill X, however X was not injured
because of poor aim.
The actual victim is the driver, since the driver
died, the intent to kill becomes a general criminal
intent. Therefore in so far as the driver is
concerned, the crime committed is MURDER.
These are 2 grave felonies arising from a single act
of shooting. Therefore, art.48 comes in, the crime
committed is MURDER with ATTEMPTED
MURDER.
***(murder sabi ni ma’am, but check page 10 ng senior
notes [NOTE: Now, these are the examples above this,
possibly on page 36, two pages before this]. Almost same
facts, pero homicide lang dun sa actual victim and not
murder)***
X wanted to kill Y, so he waited in a corner behind
an unlighted electric post, he knew that every day,
Y would pass by the said place. When a man
arrived, resembling Y, X immediately appeared and
stabbed the man. It turned out that the man was
not Y. it turned out to be his own father.
So X can be prosecuted for the crime of parricide,
the crime he actually committed.
But the crime he intended to commit is murder,
because in waiting behind an unlighted electric
post, there was treachery. Therefore the crime he
intended to commit is murder.
Would art. 49 apply? Would the lesser penalty be
imposed?
 Art.49 would not apply because both murder
and parricide have the same penalties Reclusion
perpetua.
 Therefore, even if there is variance in the title
of the felonies, they have the same penalties.
Hence, Art.49 will not apply. It will not mitigate
the criminal liability of the offender
Talampas v. People, G.R. No. 180219, 23
November 2011
Facts: Petitioner Talampas was charged with
homicide in the RTC of Biñan, Laguna, for the
killing of Ernesto Matic.
The prosecution alleged that Ernesto, with
Eduardo Matic and Sevillio were repairing
Sevillio’s tricycle when Talampas stopped by and
shot at Eduardo with a revolver. The latter was hit
and hid behind Ernesto. Talampas fired 3x more
with one shot hitting Ernesto at the right portion
of his back. This was fatal as it involved Ernesto’s
major organs such as the lungs, liver and spinal
column which caused his death.
Talampas, on the other hand, interposed self-
defense and accident. His enemy had been
Eduardo, not Ernesto. Eduardo hit Talampas with
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a monkey wrench, and they grappled for it.
Talampas noticed that Eduardo had a revolver, so
he and Eduardo grappled for the gun. The revolver
accidentally fired, hitting Eduardo.
The RTC found Talampas guilty beyond
reasonable doubt of homicide, and the CA
affirmed the RTC.
Issue: Whether the guilt of Talampas was not
proven beyond reasonable doubt
Ruling: Petition DENIED.
The fact that the target of Talampas’ assault was
Eduardo, not Ernesto, did not excuse his hitting
and killing of Ernesto. The fatal hitting of Ernesto
was the natural and direct consequence of
Talampas’ felonious deadly assault against
Eduardo. Talampas’ poor aim amounted to
aberratio ictus, or mistake in the blow, a
circumstance that neither exempted him from
criminal responsibility nor mitigated his criminal
liability. Lo que es causa de la causa, es causa del mal
causado (what is the cause of the cause is the cause
of the evil caused). Under Article 4 of the Revised
Penal Code, criminal liability is incurred by any
person committing a felony although the wrongful
act done be different from that which he intended.
[end]
People v. Hermogenes Flora & Edwin Flora,
G.R. No. 125909, 23 June 2000
Facts: Three separate informations were filed in
the RTC of Santa Cruz, Laguna for the double
murder of Ireneo Gallarte and Emerita Roma and
for the attempted murder of Flor Espinas.
Hermogenes had a fight with a certain Oscar.
Oscar’s uncle, Ireneo, pacified the two. A few days
later, Hermogenes and his brother Edwin were
guests in a dance party one evening. Among the
guests were Emerita, Flor and Ireneo. At 1:30AM,
1Hypovolemic shock is an emergency condition in which
severe blood or fluid loss makes the heart unable to pump
enough blood to the body. This type of shock can cause
Hermogenes fired his .38 cal. Revolver twice upon
Edwin’s signal. The first shot grazed Flor’s right
shoulder, then hit Emerita below the latter’s
shoulder. The second shot hit Ireneo, who
slumped on the floor. Emerita and Ireneo died due
to hypovolemic shock1 due to massive blood loss
caused by a gunshot wound.
The brothers Flora interposed alibi as their
defense, claiming that they were sleeping at the
time of the incident.
The RTC convicted both Hermogenes and Edwin
for double murder and attempted murder.
Issue: Whether the RTC erred in convicting
Hermogenes and Edwin for double murder and
attempted murder.
Ruling: Appeal DENIED. RTC decision
affirmed with modification.
Coming now to the criminal responsibility of
appellants. In the present case, when
Hermogenes Flora first fired his gun at Ireneo,
but missed, and hit Emerita Roma and Flor
Espinas instead, he became liable for
Emerita's death and Flor's injuries.
Hermogenes cannot escape culpability on the basis
of aberratio ictus principle. Criminal liability is
incurred by any person committing a felony,
although the wrongful act be different from that
which he intended.
NOTE: Hermogenes was guilty of murder for
Ireneo’s death. His-and Emerita’s-deaths were
attended by treachery when they were suddenly
shot when they helpless to defend thereselves. He
is also guilty for the attempted murder of Flor. As
for Edwin, the SC ruled that there was conspiracy
to kill Ireneo and no one else. Edwin was guilty as
a co-conspirator for Ireneo’s death. He has no
many organs to stop working
(https://medlineplus.gov/ency/article/000167.htm)
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liability for the death of Emerita nor for the injuries
of Flor caused by Hermogenes [end].
People v. Adriano, et al., G.R. No. 205228, 15
July 2015
Facts: Rolly Adriano was charged with 2 counts of
murder for the deaths of Danilo Cabiedes and
Ofelia Bulanan before the RTC [of Nueva Ecija].
A speeding Toyota Corolla overtook 2 police
officers on a motorcycle and a Honda CR-V. When
the Corolla reached alongside the CR-V, the front
seat passenger shot the CR-V, causing the latter to
swerve and fall in the canal in the road
embankment. Suddenly, 4 armed men alighted
from the Corolla and shot the driver of the CR-V,
who was later on identified as Cabiedes. During the
shooting, a bystander, Bulanan, who was standing
near the road embankment, was hit by a stray
bullet. The four armed men hurried back to the
Corollo and immediately left the crime scene. The
policemen followed the Corolla but lost track of
the latter. Both Cabiedes and Bulanan died. The
crime scene yielded a fired bullet, and 5 cartridges
from a .45 cal. firearm.
The police learned that the Corolla was registered
under the name of Rivera, who ran a car rental
business. The Corolla was leased to the appellant
Adriano. Later, Adriano arrived at Rivera’s shop to
return the car, where he was identified by the two
motorcycle-riding policemen as one of the 4
assailants.
Adriano interposed alibi as defense, claiming that
at the time of the incident, he was washing clothes,
took his motorcycle for repairs and watch
cockfights. He also alleged that a Boyet Garcia,
who borrowed the Corolla from him, returned the
car on the evening.
The RTC rejected Adriano’s defense due to lack of
clear and convincing evidence, and convicted him
of murder for the death of Cabiedes and homicide
for the death of Bulanan. The other accused
remained at large. The CA affirmed the RTC
decision.
Issues:
1. Whether the lower courts errend in finding
Adriano liable for Bulanan’s death;
2. Whether treachery may be appreciated in
abberatio ictus
Ruling: Appeal DENIED.
1. Adriano is liable under Art. 4, RPC
Death of Bulanan
We refer back to the settled facts of the case.
Bulanan, who was merely a bystander, was killed by
a stray bullet. [Sh]e was at the wrong place at the
wrong time.
Stray bullets, obviously, kill indiscriminately and
often without warning, precluding the unknowing
victim from repelling the attack or defending
himself. At the outset, Adriano had no intention to
kill Bulanan, much less, employ any particular
means of attack. Logically, Bulanan's death was
random and unintentional and the method used to
kill her, as she was killed by a stray a bullet, was, by
no means, deliberate. Nonetheless, Adriano is
guilty of the death of Bulanan under Article 4
of the Revised Penal Code, pursuant to the
doctrine of aberratio ictus, which imposes
criminal liability for the acts committed in violation
of law and for all the natural and logical
consequences resulting therefrom. While it may
not have been Adriano's intention to shoot
Bulanan, this fact will not exculpate him. Bulanan's
death caused by the bullet fired by Adriano was the
natural and direct consequence of Adriano's
felonious deadly assault against Cabiedes.
As we already held in People v. Herrera citing People
v. Hilario, "[t]he fact that accused killed a person
other than their intended victim is of no moment."
Evidently, Adriano's original intent was to kill
Cabiedes. However, during the commission of the
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crime of murder, a stray bullet hit and killed
Bulanan. Adriano is responsible for the
consequences of his act of shooting Cabiedes. This
is the import of Article 4 of the Revised Penal
Code. As held in People v. Herrera citing People v.
Ural: Criminal liability is incurred by any person
committing a felony although the wrongful act be
different from that which is intended. One who
commits an intentional felony is responsible for all
the consequences which may naturally or logically
result therefrom, whether foreseen or intended or
not. The rationale of the rule is found in the
doctrine xxx he who is the cause of the cause is the
cause of the evil caused.
As regards the crime(s) committed, we
reiterate our ruling in People v. Nelmida. In the
aforesaid case, we ruled that accused-appellants
should be convicted not of a complex crime but of
separate crimes of two counts of murder and
seven counts of attempted murder as the
killing and wounding of the victims were not
the result of a single act but of several acts. The
doctrine in Nelmida here is apt and applicable.
In Nelmida, we distinguished the two kinds of
complex crime: compound crime, when a single act
constitutes two or more grave or less grave
felonies, and complex crime proper, when an
offense is a necessary means for committing the
other. Moreover, we also made a distinction that
"when various victims expire from separate shots,
such acts constitute separate and distinct crimes,"
not a complex crime.
As borne by the records, the Crime Laboratory
recovered six (6) cartridges of bullets from a .45
caliber firearm. This does not indicate discharge by
a single burst. Rather, separate shots are evidenced.
One or more of which, though fired to kill
Cabiedes, killed Bulanan instead. There is thus no
complex crime. The felonious acts resulted in two
separate and distinct crimes.
2. Treachery may be appreciated
Finally, we ask, may treachery be appreciated in
aberratio ictus?
Although Bulanan's death was by no means
deliberate, we shall adhere to the prevailing
jurisprudence pronounced in People v. Flora,
where the Court ruled that treachery may be
appreciated in aberratio ictus. In Flora, the
accused was convicted of two separate counts of
murder: for the killing of two victims, Emerita, the
intended victim, and Ireneo, the victim killed by a
stray bullet. The Court, due to the presence of the
aggravating circumstance of treachery, qualified
both killings to murder. The material facts in Flora
are similar in the case at bar. Thus, we follow the
Flora doctrine. [NOTE: see Flora, the previous
digest. It is Ireneo, not Emerita, who was the
intended victim, and it was the latter who was killed
by a stray bullet.][end].
PROSEC reci questions:
 Why did the SC say that in Violin, the accused
was guilty only of slight physical injuries while
in Adriano, the accused was guilty of murder for
the death of the bystander?
[Because, when a single act of firing a gun
results in 2 injuries there is a complex crime
(Violin)
But if there are separate acts of firing, there
are 2 different crimes (Adriano)]
 Why in Adriano, 2 counts of murder instead of
double murder?
Because the several shots were separate acts.
They are not discharged by a single burst.
2. Error in Personae - mistake in the identity
It is a situation wherein the victim actually
received the bullet but he was mistaken to be the
intended victim. The intended victim was not at
the scene of the crime.
Effects: it depends
1. If there is variance in the penalty between the
intended and actual crime committed,
mitigating. The penalty for the lesser crime
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must be imposed (Art. 49).
2. If none, no effect on the criminal liability of the
offender, such as when the crimes differ (in
name) but the penalties are the same.
Ex. A and B were fighting A boxed B. It was a
strong box that B fell on the ground, his face
facing the ground. A left the scene of the crime. At
that precise moment when A left, here comes the
father of B who saw his poor son boxed by A so he
came to the rescue of his son and went near him.
To retaliate, B took out his balisong and stabbed
the person next to him thinking that it was still his
opponent A but in truth it was already his father.
Let's say the father died.
What was the intended crime committed by B?
 Homicide because he intended to kill A, the
person who boxed him.
What crime did he commit?
 Parricide because he killed his own father.
Of what crime will you prosecute B?
 Parricide because that is the [crime] he
actually committed.
Let's say that he is now charged of parricide. Trial
on the merits proceeded. The Judge found him
guilty beyond reasonable doubt of parricide.
What penalty as a Judge would you impose on
him?
 The penalty for parricide under Art. 246 is
reclusion perpetua to death whereas the
penalty for homicide under Art. 249 is
reclusion temporal. Although he committed
parricide. You have to impose upon him the
penalty which is lesser and that is reclusion
temporal but in its maximum period.
Under Art. 49, in case of Error in Personae or
Mistake in the Identity, when there is a variance
between the intended crime and the actual crime
committed, you have to compare the 2.
Whichever has a lesser penalty, that penalty has
to be imposed.
In the case the intended felony is homicide but the
actual felony is parricide. Compare the penalty of
the 2, although B should be convicted of the crime
of parricide, the penalty will be that of the crime
with a lesser penalty. That is reclusion temporal
for homicide.
Ex. In the same problem, instead of the father
coming to the rescue of B, it was the friend of B
who came to his rescue. So when A left, the friend
of B arrived and was the one stabbed by B and
died. Therefore, B killed his own best friend.
 the crime committed is homicide
What was his intended crime?
 homicide
What crime did he actually commit?
 homicide because he killed his own best
friend
What crime would you charge him of? After trial
on the merits what penalty will you impose?
 The penalty of homicide. Since there is no
variance between the intended felony and the
felony actually committed. In this case, Error
in Personae will not mitigate the liability of
the offender. Art. 49 will not apply.
3. Prater Intentionem - when the consequence
went beyond the intention; injurious
result is greater than that intended.
It is a situation wherein the offender directed the
blow at his actual victim, the victim received the
blow. However, the injurious result is far greater
than what is intended by the victim.
Effect: it is always a mitigating circumstance
because of Art. 13. The offender has no intention
to commit so grave a wrong as that committed.
For Praeter Intentionem to be considered as a
mitigating circumstance, the prime element or
requisite is that: there must be a notable
disparity between the means employed by the
offender and the resulting felony. That is out of
the means employed by the offender, no one
could have anticipated or foreseen that injurious
result.
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Ex. H arrived home and asked W what was their
dinner and the W answered that she has not yet
cooked because she was watching teleserye. Since
the H was so tired, he got mad and elbowed the
W. The W fell on floor and her head hit the edge
of the table and so she suffered hemorrhage.
Thereafter, she died.
What crime should H be prosecuted?
 parricide
H said he had no intention of killing his W, he only
elbowed her. However, since death is the result, it
is a general criminal intent which is presumed by
law.
Would you give him the benefit of Praeter
Intentionem?
Yes, because no one could have foreseen that the
mere act of elbowing the W, death would result.
There was a notable disparity between the means
employed, the act of elbowing the W, and the
resulting felony which is death or parricide.
Therefore, he should be given the benefit of
mitigating circumstance.
Garcia vs. People
Garcia’s act of mauling Chy was the proximate
cause of Chy’s heart attack. However, he was
given the benefit of Praeter Intentionem. Who
would have anticipated that the mere act of
mauling or boxing him death would result.
Therefore, there was Praeter Intentionem.
People vs. Noel Sales
Praeter Intentionem was not considered by the
court.
The son was hit by a thick piece of a wood while
he was tied on a coconut tree. There was a crack
on his head, became unconscious and then he
died. The father was convicted for parricide.
According to him he cannot be held liable for
parricide. He claimed that he has no intention to
kill the child, he only intended to discipline his
children. However, since the victim died, death is
considered a general criminal intent which is
presumed by law. Therefore, he should be held
liable of parricide.
Does the PCD apply?
Yes. The father in beating the son with a thick
piece of wood while the child was tied on a
coconut tree was already a felonious act.
Therefore the father should be liable for the
resulting felony although different from that
which he intended.
Should the father be given the benefit of Praeter
Intentionem?
No. According to the SC, there was no notable
disparity between the act of the father hitting the
said son with a thick piece of wood while being
tied on a coconut tree and the resulting felony
which is death. Considering the age of the child,
such act of the father would produce and indeed
produce the death of the child. Therefore it
cannot be said that there is no intention to
commit so grave a wrong as that committed.
Impossible Crime Doctrine (ICD)
By any person performing an act which would be an
offense against persons or property, were it not for
the inherent impossibility of its accomplishment or
an account of the employment of inadequate or
ineffectual means.
 One where the act would have amounted to a
crime against persons or property but it is not
accomplished because of its inherent
impossibility or because of the employment of
inadequate or ineffectual means.
 It is not really a crime in the legal sense of the
word because a crime requires a substantive
change in the outside world. Here the act dis
not ripen into a crime. It was not
accomplished into a crime because of its
inherent impossibility. Nevertheless, the
offender is being punished because of his
criminality and dangerousness. So although
objectively, no crime is committed, still the
offender shall be punished that is why he is
convicted only of IC.
 The penalty of IC is only arresto mayor or a
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fine of P200-P500 depending on the
criminality or dangerousness of the offender.
Elements for a person to be liable of IC
1. That the act done would have been an
offense against persons or property
2. That the act was done with evil intent
3. That the act was not accomplished
because of its inherent impossibility or
the employment of inadequate or
ineffectual means
4. That the act done should not constitute
any other violation of the RPC
1. That the act done would have been an offense
against persons or property
Crimes against persons under Title 8, we have
parricide, murder, homicide, abortion,
infanticide, duel, physical injuries, rape.
Crimes against property, we have robbery,
brigandage, theft, usurpation or occupation of
real property, estafa or swindling, malicious
mischief, arson.
Only crimes against persons and property would
an IC
2. That the act was done with evil intent
It is necessary that the offender in doing the act
must be incited by an evil intent.
3. That the act was not accomplished because of
its inherent impossibility or the employment of
inadequate or ineffectual means
Intod vs. CA
Killing a person when it is already dead.
SC: discussed 2 kinds of inherent impossibility
2 KINDS OF INHERENT IMPOSSIBILITY
a) Legal Impossibility - there is legal
impossibility when all the intended acts even
if committed would not have amounted to a
crime.
Ex. Intod vs. CA - Killing a person when he is
already dead
Ex. X saw his enemy Y lying on a bench. He went
to Y and stabbed Y 10x not knowing that Y had
already long been dead for 2 hrs due to a heart
attack. Even if X performed all the acts amounting
to murder, still murder would not arise which is a
crime against persons because the victim is
already deceased. He is no longer a person in the
eyes of criminal law. Therefore there is IC and
what we have is legal impossibility.
b) Physical and Factual Impossibility - when
an extraneous circumstance unknown to the
offender prevented the consignation of the
crime. Here, there are circumstances
unknown to the offender, the inadequate
control of the offender which prevented the
consignation of the crime.
Example given by SC in the case of Intod vs. CA. A
person placed his hands inside the pocket of the
polo of another, intended to get the wallet of the
said person but the pocket was empty. It is an IC.
Extraneous Circumstances unknown to the
offender prevented the consignation of the crime.
Unknown to him the wallet was not inside his
pocket. S it is an IC because it would have
amounted to theft, a crime against property.
4. That the act done should not constitute any other
violation of the RPC
It is necessary that the act done must not be a
violation of any crime under the RPC. Otherwise
that person would be held liable of that crime and
not of an IC. So an impossible crime is a crime of
last resort. One should only file a case of IC if the
act of the offender does not constitute any other
violation of the RPC.
Intod vs. CA
Intod accompanied by other men, wanted to kill
Palampangan, peppered the room his room with
bullets. However, the intended victim was not
there. Only son in law and children were there but
they were not hit. Intod and his company were
charged with the crime of attempted murder up
to the CA.
SC: it was only an IC and what is present is only
factual or physical impossibility. Unknown to the
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offenders the intended victim was not at the
scene of the crime. It could have amounted to a
crime against persons which is murder. But it was
inherently impossible because the victim was not
there.
This decision of the SC were criticized because
under the 4th element, the act must not constitute
any other violation of the RPC. When this accused
peppered the house of Palampangan with bullets,
they did peppered the house with bullets. So they
said, they should be liable with malicious mischief
because damage was done to the house and not
IC. SC retained its decision that it is an IC and this
case of Intod vs. CA was cited in the case of Jacinto
vs. People.
Jacinto vs. People
A check which was supposed to be remitted was
not remitted by the offender, instead it was
deposited. Since the check was not remitted,
Megaphone filed a case of qualified theft against
[t]he employee. She was convicted before the
lower court up to the CA.
SC: it was impossible crime citing the case of Intod
vs. CA. [Their acts] amount[ed] to qualified theft.
However, unknown to the said offender the check
was not funded. Therefore, she was not able to get
the face value of the said check. Hence, physical
circumstances unknown to the offender
prevented the consummation of the crime. We
have physical or factual impossibility.
What about the fact that the check was taken, was
not remitted to Mega Foam?
 According to the SC theft has been defined
under Art. 308 as the taking of a property with
intent to gain the personal property of
another. Therefore it is necessary that the
property taken must have value because the
taking must be with intent to gain. The mere
taking of a check without value would not
amount to theft because the check without
value is a worthless check. Hence, the SC said
that the crime committed is only an IC.
The penalty is arresto mayor or a maximum
penalty of 6 months.
 The SC erased, did not include the 4th element
of IC. That the act done should not constitute
any other violation of the RPC. Perhaps
because of the ruling in Intod vs. CA. It was
deliberately deleted.
Intod v. CA & People, G.R. No. 103119, 21
October 1992
Facts: Petitioner Sulpicio Intod gathered 4 other
men to kill Bernardina Palangpangan because of a
land dispute between him and her. When they
reached her house, Intod and 3 of his companions
fired at the bedroom of Bernardina. It turned out
that Bernardina was in another city and her son-
in-law and his family were occupying her house.
Nobody was injured in the shooting.
The RTC of Oroquieta City convicted Intod of
attempted murder, and the CA affirmed the
conviction.
Issue: Whether Intod is guilty only of an
impossible crime, not attempted murder.
Ruling: Petition GRANTED.
Under Art. 4(2), the act performed by the
offender cannot produce an offense against
person or property because: (1) the commission
of the offense is inherently impossible of
accomplishment: or (2) the means employed is
either (a) inadequate or (b) ineffectual.
There are two kinds of impossibilities: legal
impossibility and factual impossibility. Legal
impossibility would apply to those circumstances
where:
1. the motive, desire and expectation is to
perform an act in violation of the law;
2. there is intention to perform the physical
act;
3. there is a performance of the intended
physical act; and
4. the consequence resulting from the intended
act does not amount to a crime (e.g.
impossibility of killing a person already
dead).
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On the other hand, factual impossibility
occurs when extraneous circumstances unknown
to the actor or beyond his control prevent the
consummation of the intended crime (e.g. the
man who puts his hand in the coat pocket of
another with the intention to steal the latter's
wallet and finds the pocket empty). The case at
bar belongs to this category. Petitioner shoots
the place where he thought his victim would
be, although in reality, the victim was not
present in said place and thus, the petitioner
failed to accomplish his end.
In the Philippines, not unlike in other
jurisdictions, impossible crime is expressly
provided and punishable in the RPC. It is not
merely a defense, but an act penalized by itself.
Furthermore, the phrase "inherent impossibility"
that is found in Article 4(2) makes no
distinction between factual or physical
impossibility and legal impossibility. The factual
situation in the case at bar presents a physical
impossibility which rendered the intended crime
impossible of accomplishment. To uphold the
contention of respondent that the offense was
Attempted Murder because the absence of
Palangpangan was a supervening cause
independent of the actor's will, will render
useless the provision in Article 4, which makes
a person criminally liable for an act "which
would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment . . ." In
that case all circumstances which prevented the
consummation of the offense will be treated
as an accident independent of the actor's will
which is an element of attempted and
frustrated felonies [end].
X, [a] public officer filed his SALN, the said SALN
has been filed before the appropriate government
agency. It turned out later that the administering
officer in the SALN is not a notary public, but only
a secretary of the said notary public. The person
who signed the same is only the secretary and not
the person competent enough to administer the
said oath. X the public officer knew this. Is X liable
for an impossible crime?
 X is not liable for an impossible crime
The first element requires that the act done would
have been an offense against person or property
 Had it been accomplished, the act done would
have amounted to perjury
 However perjury is not a crime against person
or property. It is under title 4, crimes against
public interest.
 Therefore the first element is absent.
What then is the crime committed?
The crime committed is falsification. Making an
unlawful statements in a narration of facts.
Why not perjury?
Because the solemnizing officer is not duly
authorized to receive and administer, therefore it
cannot be perjury.
X lost his cellphone 2 days ago while going to
work. Now, while he was working, he saw his
officemate with a new cellphone like his old phone.
He waited for his officemate to go to the CR and
when the officemate went to the CR, X covered his
face with a handkerchief, went near the officemate,
pointed a balisong and told him “this is a holdup,
give me your cellphone, I am going to stab you if
you don’t give it to me”. Afraid, the officemate
gave the cellphone. It turned out that it was his
cellphone that he lost 2 days ago. Is X liable of an
impossible crime?
1st element – the act done would have amounted
to a crime against person or property. Had it been
accomplished, would it have been a crime against
property?
 NO, because the said thing taken happens to
be his own property.
2nd element – the act done was done with evil
intent
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3rd element - was it inherently impossible to
accomplish the crime?
Yes, because in case of robbery or theft, it is
necessary that the thing must belong to another
person. And here, thing taken is his own property.
4th element – the act does not fall under any other
provision of RPC. Does the act fall under any
provision of the RPC?
Yes, therefore it is not an impossible crime.
What provision of the RPC? It amounted to grave
coercion. By compelling someone to do something
against his will, whether right or wrong by means
of violence or intimidation.
Therefore, the offender is not liable of an
impossible crime, rather, he is liable for grave
coercion.
People v. Domasian & Dr. Tan, G.R. No.
95322, 1 March 1993
Facts: Domasian and Dr. Tan were charged with
kidnapping with serious illegal detention in the
RTC of QC for the kidnapping of an 8-yr old boy,
Enrico Paulo Agra.
One morning, Enrico was approached by
Domasian who requested the assistance in getting
his father’s signature on a medical certificate.
Enrico agreed and rode with Domasian in a tricycle
to a building to get the certificate. Enrico started to
cry when, instead of taking him to the hospital,
Domasian dragged him onboard a minibus, and
threatened him to stop crying or he would not be
returned to his father. They went to different
places, and at one point Domasian handed an
envelope to a jeepney driver addressed to Dr. Agra,
Enrico’s father. Domasian and Enrico boarded a
tricycle. Enrico’s continuous crying and
Domasian’s claim that they were brothers
notwithstanding their physical differences and
wide age gap aroused the tricycle driver’s suspicion.
The latter reported the matter to barangay tanods
after Domasian and Enrico alighted. The tanods
pursued the two, and Domasian managed to
escape, leaving Enrico behind. He met his parents
on his way home.
Later in the afternoon, Dr. Agra received a ransom
note, demanding P 1M for Enrico’s release. He
thought that the handwriting was familiar, so he
compared it with some records in his hospital. He
gave the note to the police, who had the NBI
examine the same. Tests showed that it was written
by Dr. Tan, one of the resident physicians of Dr.
Agra’s hospital.
Domasian interposed alibi and denial as defenses,
but the RTC found them guilty as charged.
Issue: Whether the sending of the ransom note
was an impossible crime.
Ruling: Appeal DENIED.
Tan claims that the lower court erred in not finding
that the sending of the ransom note was an
impossible crime which he says is not punishable.
His reason is that the second paragraph of Article
4 of the Revised Penal Code provides that criminal
liability shall be incurred "by any person
performing an act which would be an offense
against persons or property, were it not for the
inherent impossibility of its accomplishment or on
account of the employment of inadequate or
ineffectual means." As the crime alleged is not
against persons or property but against liberty, he
argues that it is not covered by the said provision.
Tan conveniently forgets the first paragraph of the
same article, which clearly applies to him, thus
Criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful
act done be different from that which he intended.
Even before the ransom note was received, the
crime of kidnaping with serious illegal detention
had already been committed. The act cannot be
considered an impossible crime because there was
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no inherent improbability of its accomplishment or
the employment of inadequate or ineffective
means. The delivery of the ransom note after the
rescue of the victim did not extinguish the offense,
which had already been consummated when
Domasian deprived Enrico of his liberty. The
sending of the ransom note would have had the
effect only of increasing the penalty to death under
the last paragraph of Article 267 although this too
would not have been possible under the new
Constitution [end].
Art. 5. Duty of the court in connection with acts
which should be repressed but which are not
covered by the law, and in cases of excessive
penalties. — Whenever a court has knowledge of
any act which it may deem proper to repress and
which is not punishable by law, it shall render the
proper decision, and shall report to the Chief
Executive, through the Department of Justice, the
reasons which induce the court to believe that
said act should be made the subject of legislation.
In the same way, the court shall submit to
the Chief Executive, through the Department of
Justice, such statement as may be deemed proper,
without suspending the execution of the sentence,
when a strict enforcement of the provisions of this
Code would result in the imposition of a clearly
excessive penalty, taking into consideration the
degree of malice and the injury caused by the
offense.
There are no common law crimes in the
Philippines.
Art. 5 (second paragraph)
After trial on the merits, the judge has found the
accused guilty, but based on the facts and
circumstances, the penalty prescribed by law for
the crime committed is too harsh. No matter how
harsh the penalty prescribed by law, it is the duty
of the judge to impose the said penalty. But he may
give a recommendation to the president through
the DOJ that executive clemency be granted to the
offender.
Art. 6. Consummated, frustrated, and attempted
felonies. — Consummated felonies as well as
those which are frustrated and attempted, are
punishable.
A felony is consummated when all the
elements necessary for its execution and
accomplishment are present; and it is frustrated
when the offender performs all the acts of
execution which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of the
will of the perpetrator.
There is an attempt when the offender
commences the commission of a felony directly by
overt acts, and does not perform all the acts of
execution which should produce the felony by
reason of some cause or accident other than this
own spontaneous desistance.
2 PHASES IN THE COMMISSION OF THE CRIME
1. Subjective Phase - portion in the commission
of the act wherein the offender commences
the commission of the crime after the time
that he still has control over his acts. He may
or may not proceed in the commission of the
crime. He still has control over his acts
2. Objective Phase - from the moment the
offender uses control over his acts it is already
in the objective phase of the commission of
the crime.
IN THE DEVELOPMENT OF A CRIME WE HAVE
BOTH THE INTERNAL AND EXTERNAL ACT
1. Internal Acts - are not punishable. Mere
criminal thoughts will never give rise to
criminal liability. There must be an external
act.
2. External Act - includes preparatory acts and
acts of execution
a. Preparatory Acts - as a rule are not yet
punishable because they are not yet
connected to a particular felony.
Ex. Conspiracy to commit a crime,
proposal to commit a crime -> merely
preparatory acts. Hence, as a rule they are
not punishable
b. Acts of Execution - this is the actual act of
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committing the crime and we have 3
stages, attempted, frustrated and
consummated.
Attempted Stage
Elements (People v. Lizada):
1. The offender commences the
commission of the felony directly by
overt acts,
2. That he does not perform all acts of
execution that would have produced the
felony,
3. That his act was not stopped by his own
spontaneous desistance,
4. That he was not able to perform all acts of
execution by reason of some cause or
accident other than his own spontaneous
desistance
There is an attempt when the offender commences
the commission of a felony directly by overt acts, and
does not perform all the acts of execution which
should produce the felony by reason of some cause
or accident other than this own spontaneous
desistance.
The offender is still in the subjective phase, the
offender has still control over his acts, he may
proceed in the commission of the crime or he may
desist. The moment he desist on his own
spontaneous desistance then he will no longer be
held criminally liable.
Desistance negates criminal liability in the
attempted stage but not in the frustrated or
consummated stage.
The offender commences the commission of the
felony directly by overt acts.
The attempted felony that is punished by law is
one that is directly connected to the overt act
performed by the offender even if he has a
different crime in mind.
1. The offender commences the commission of the
felony directly by overt acts
OVERT ACT [OA] - refers to any external act
which if allowed to continue will naturally and
logically ripen into a crime. What the law requires
is that the overt act must be directly connected to
the intended felony. The offender commences the
commission of the crime directly by overt act.
DIRECTLY BY OA - means that the OA performed
by the offender must be directly connected to the
intended felony. The attempted felony that is
punished by law is one which is directly
connected to the over act performed by the
offender although he has a different crime in
mind.
People v. Lamahang, a case cited in Baleros vs.
People
A person intending to rob a store made an
opening on the wall of the store sufficient for his
body to enter. His intention was to rob. Before he
could enter he was already apprehended.
Can he be liable of attempted robbery?
> No. Because his OA of making an opening on the
wall of the store is not an OA directly connected
to robbery. It is only an OA directly connected to
trespassing. Hence, he can only be held liable for
attempted trespassing.
Although his intention was to commit robbery,
once inside he may rob, he may rape, he may kill,
he may injure the owner of the store. Therefore,
it is not an act directly connected to robbery.
People v. Lamahang, G.R. No. 43530, 3
August 1935
Facts: A policeman caught Lamahang in the act
of making an opening in the wall of the store of
Tan Yu. Lamahang was only able to break one
board and was in the process of unfastening
another one when the police showed up. He was
convicted by the CFI of Iloilo of attempted
robbery.
Issue: Whether Lamahang is not guilty of
attempted robbery
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Ruling: Appeal GRANTED.
The attempt to commit an offense which the Penal
Code punishes is that which has a logical relation
to a particular, concrete offense; that, which is the
beginning of the execution of the offense by overt
acts of the perpetrator, leading directly to its
realization and consummation. The attempt to
commit an indeterminate offense, inasmuch as its
nature in relation to its objective is ambiguous, is
not a juridical fact from the standpoint of the
Penal Code. There is no doubt that in the case at
bar it was the intention of the accused to enter Tan
Yu's store by means of violence, passing through
the opening which he had started to make on the
wall, in order to commit an offense which, due to
the timely arrival of policeman, did not develop
beyond the first steps of its execution.
But it is not sufficient, for the purpose of
imposing penal sanction, that an act
objectively performed constitute a mere
beginning of execution; it is necessary to
establish its unavoidable connection, like the
logical and natural relation of the cause and its
effect, with the deed which, upon its
consummation, will develop into one of the
offenses defined and punished by the Code; it
is necessary to prove that said beginning of
execution, if carried to its complete termination
following 'its natural course, without being
frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense. Thus, in case of robbery, in order that the
simple act of entering by means of force or
violence another person's dwelling may be
considered an attempt to commit this offense, it
must be shown that the offender clearly intended
to take possession, for the purpose of gain, of
some personal property belonging to another. In
the instant case, there is nothing in the record from
which such purpose of the accused may reasonably
be inferred. From the fact established and stated
in the decision, that the accused on the day in
question was making an opening by means of an
iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident
intention was to enter by means of force said
store against the will of its owner. That his final
objective, once he succeeded in entering the store,
was to rob, to cause physical injury to the inmates,
or to commit any other offense, there is nothing in
the record to justify a concrete finding.
In offenses not consummated, as the material
damage is wanting, the nature of the action
intended cannot exactly be ascertained, but the
same must be inferred from the nature of the acts
executed. Hence, the necessity that these acts be
such that by their very nature, by the facts to which
they are related, by the circumstances of the
persons performing the same, and by the things
connected therewith, they must show without any
doubt, that they are aimed at the consummation of
a crime. Acts susceptible of double interpretation,
that is, in favor as well as against the culprit, and
which show an innocent as well as a punishable
act, must not and cannot furnish grounds by
themselves for attempted nor frustrated crimes.
The relation existing between the facts
submitted for appreciation and the offense
which said facts are supposed to produce must
be direct; the intention must be ascertained
from the facts and therefore it is necessary, in
order to avoid regrettable instances of
injustice, that the mind be able to directly infer
from them the intention of the perpetrator to
cause a particular injury. This must have been
the intention of the legislator in requiring that in
order for an attempt to exist, the offender must
commence the commission of the felony directly
by overt acts, that is to say, that the acts performed
must be such that, without the intent to commit
an offense, they would be meaningless.
In view of the foregoing, we are of the opinion,
and so hold that the fact under consideration does
not constitute attempted robbery but attempted
trespass to dwelling [end].
Baleros vs. People
The woman was awakened by a man pressing a
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cloth soaked with chemical on her face. The man
was on top of her, she struggled, she was able to
kick the man, the man jumped out of the window.
She called on the guard and then everyone came
up to her. The case filed against the man was
attempted rape. The man was convicted up to the
CA of attempted rape.
Was there attempted rape?
SC: it is not attempted rape. The OA of pressing a
cloth soaked with chemical on the face of a
woman is not an OA directly connected to rape.
The obvious intent was to make the woman
unconscious but once the woman is made
unconscious, the man may rape, may touch the
private parts of the woman, or he may injure the
woman, or may rob the property of the woman.
It is not an overt act directly connected with rape
even if the intent of the offender would have been
to rape the victim since his overt act is not directly
connected with rape so he cannot be held liable of
attempted rape.
He was convicted only of the crime of unjust
vexation.
SC: when the OA of a person is ambiguous in so
far as the intended felony is committed, what we
have is an attempt to commit an indeterminate
offense which is a juridical standpoint insofar as
the RPC is concerned
The Supreme Court said the act of the offender
would amount to an attempt to commit and
indeterminate offense which has no juridical
standpoint in the RPC. The intent of the offender
was to render the woman unconscious but once
she is unconscious the offender may perform
other acts not only to rape the victim hence it is
not an act directly connected with rape
Baleros, Jr. v. People, G.R. No. 138033, 22
February 2006
Facts: UST Med student Malou Albano was
awakened from her sleep in her apartment by the
smell of a chemical on a piece of cloth pressed
against her face. She struggled but could not
move because somebody was pinning her down
on the bed, holding her tightly. She wanted to
scream for help but the hands covering her
mouth with cloth wet with chemicals were very
tight. Still, Malou continued fighting off her
attacker by kicking him until at last her right
hand got free. With this, the opportunity
presented itself when she was able to grab hold
of his sex organ which she then squeezed. The
man let her go and Malou went straight to the
bedroom door and roused her maid Marvilou.
An investigation of the incident later revealed that
Malou’s attacker was petitioner Chito Baleros, Jr.,
and he was charged before the RTC of Manila of
attempted rape. Chito averred that he was not at
Malou’s apartment at the time of the incident.
The RTC convicted him of attempted rape, and
the CA affirmed the conviction.
Issue: Whether Baleros, Jr. is guilty of attempted
rape.
Ruling: No,
According to the Solicitor General, the act of
Chito of pressing on Malou’s face the piece of
cloth soaked in chemical while holding her
body tightly under the weight of his own, had
commenced the performance of an act
indicative of an intent or attempt to rape the
victim. He added that if Chito’s intention was
otherwise, he would not have lain on top of
the victim.
Under Article 335 of the Revised Penal Code,
rape is committed by a man who has carnal
knowledge or intercourse with a woman under
any of the following circumstances: (1) By using
force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious;
and (3) When the woman is under twelve years
of age or is demented. Under Article 6, in
relation to the aforementioned article of the
same code, rape is attempted when the offender
commences the commission of rape directly by
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overt acts and does not perform all the acts
of execution which should produce the crime
of rape by reason of some cause or accident
other than his own spontaneous desistance.
Expounding on the nature of an attempted
felony, the Court, speaking thru Justice Claro
M. Recto in People vs. Lamahang, stated that
"the attempt which the Penal Code punishes is
that which has a logical connection to a
particular, concrete offense; that which is the
beginning of the execution of the offense by
overt acts of the perpetrator, leading directly
to its realization and consummation." Absent
the unavoidable connection, like the logical and
natural relation of the cause and its effect, as
where the purpose of the offender in
performing an act is not certain, meaning the
nature of the act in relation to its objective is
ambiguous, then what obtains is an attempt to
commit an indeterminate offense, which is not
a juridical fact from the standpoint of the Penal
Code.
There is absolutely no dispute about the
absence of sexual intercourse or carnal
knowledge in the present case. The next
question that thus comes to the fore is whether
or not the act of the petitioner, i.e., the
pressing of a chemical-soaked cloth while on
top of Malou, constitutes an overt act of rape.
Overt or external act has been defined as some
physical activity or deed, indicating the intention
to commit a particular crime, more than a mere
planning or preparation, which if carried out
to its complete termination following its natural
course, without being frustrated by external
obstacles nor by the voluntary desistance of
the perpetrator, will logically and necessarily
ripen into a concrete offense.
Harmonizing the above definition to the facts
of this case, it would be too strained to
construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of
Malou which would induce her to sleep as
an overt act that will logically and
necessarily ripen into rape. As it were,
petitioner did not commence at all the
performance of any act indicative of an intent
or attempt to rape Malou. It cannot be
overemphasized that petitioner was fully
clothed and that there was no attempt on his
part to undress Malou, let alone touch her
private part. For what reason petitioner wanted
the complainant unconscious, if that was really
his immediate intention, is anybody’s guess.
The CA maintained that if the petitioner had
no intention to rape, he would not have lain
on top of the complainant. Plodding on, the
appellate court even anticipated the next step
that the petitioner would have taken if the
victim had been rendered unconscious. In other
words, the appellate court (CA) indulges in
plain speculation, a practice disfavored under
the rule on evidence in criminal cases. For,
mere speculations and probabilities cannot
substitute for proof required to establish the
guilt of an accused beyond reasonable doubt.
In Perez vs. Court of Appeals, the Court acquitted
therein petitioner of the crime of attempted
rape, pointing out that: “In the crime of rape,
penetration is an essential act of execution to
produce the felony. Thus, for there to be an
attempted rape, the accused must have
commenced the act of penetrating his
sexual organ to the vagina of the victim
but for some cause or accident other than
his own spontaneous desistance, the
penetration, however, slight, is not
completed.”
Lest it be misunderstood, the Court is not
saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an
allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in
chemical. And during the trial, Malou testified
about the pressing against her face of the
chemical-soaked cloth and having struggled after
petitioner held her tightly and pinned her
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down. Verily, while the series of acts committed
by the petitioner do not determine attempted
rape, as earlier discussed, they constitute unjust
vexation punishable as light coercion under
Article 287 of the Revised Penal Code [end].
INDETERMINATE OFFENSE - the OA of a person
in relation to the intended felony is ambiguous. It
is necessary that the OA must be necessarily
connected to the felony. Only then he will be
punished of the said attempted felony.
X removed the jalousies in the window of the
house of Y. The intent of X is to rob the house of
its valuable things. After slowly removing the
jalousies and placing it on the ground, he was
about to enter, but he was arrested, he was
apprehended. He was charged of attempted
robbery.
Yet, he cannot be held liable of the crime charged
although the intent of the offender is to rob the
house since his overt act of removing the jalousies
and trying to enter the house are not overt acts
directly connected to robbery, he cannot be
convicted. Instead, it is only attempted trespass to
dwelling because the overt act of removing the
jalousies and trying to enter are overt acts directly
connected to the act of entering the dwelling.
2. That he does not perform all acts of execution
that would have produced the felony
What is the reason? Some cause other than his
spontaneous desistance. If he spontaneously
desists, he incurs no criminal liability.
Rivera vs. People [see Art. 3]
The victim was mauled, hit with hollow blocks,
Rivera brothers were able to pin him down on the
ground. Suddenly there was the siren of the
police, so the Rivera brothers fled. The medical
certificate showed that the victim only suffered
superficial injuries, only slight physical injuries,
yet they were charged of attempted murder.
SC: it is attempted murder. The first element was
present, they boxed the victim, they mauled him,
their intention was to kill him. Second, they were
not able to perform all acts of execution because
of the arrival of the police. Therefore, the non-
consummation of the crime was because of a
cause or accident other than the accused's own
spontaneous desistance.
Why attempted murder? Why not slight physical
injuries?
SC: there was intent to kill.
FACTORS TO BE CONSIDERED IN INTENT
TO KILL:
1. Evidence of motif
2. The nature and number of weapons used
by the offender
3. The nature, number and location of the
wounds inflicted on the victim
4. Manner of committing the crime
5. Acts and statements made by the
offender before, during and after the
commission of the crime
SC:
1. There was an altercation, day prior to the said
act was committed, therefore the motive was
to kill the victim
2. They mauled him all at the same time, he was
totally defenseless
3. Wounds inflicted were only superficial but
the SC said that was is because of the sudden
arrival of the police
4. They were all in conspiracy with one another
Hence, it is attempted murder and not merely a
slight physical injury
Ex. A shot B. B evaded the blow. He was not hit.
What crime was committed?
The crime committed was attempted homicide or
murder as the case may be. Even if the victim was
not hit, since the act of discharging the firearm
was with intent to kill the victim, it was already in
the attempted stage. Such act of firing the fire arm
was already an OA directly connected to the act of
homicide or murder as the case may be.
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Ex. A shot B with intent to kill, B sustained a
wound, so he was hit. However, the wound
sustained by B was a non-fatal wound.
What crime was committed by A against B?
Attempted homicide or murder as the case may
be. Because the wound sustained was not fatal or
non-mortal. It requires another act for the crime
to be consummated. No one would die by a non-
mortal or non-fatal wound.
Ex. A shot B with intent to kill. B was hit on a vital
organ. So he sustained a fatal, mortal wound.
However, he survived due to immediate medical
intervention.
What crime was committed by A against B?
It is already frustrated homicide or murder as the
case may be.
Valenzuela vs. People
SC: if the wound sustained by the victim is a
mortal wound but he survived due to immediate
medical intervention, the crime is in the
frustrated stage.
If the wound sustained by the victim is a non-fatal
or non-mortal wound, then the crime is only in the
attempted stage. The reason is that it is only when
the wound sustained is mortal or fatal that it can
be said that the said offender has already
performed all the acts of execution which would
produce the felony. However, the felony was not
produced by reason of a cause independent of his
will that is the immediate medical intervention.
If the wound sustained is non-fatal, non-mortal,
the offender has not yet performed all acts of
execution, he must perform another act of firing
in order to consummate the crime. Therefore it is
only in the attempted stage of committing the
felony.
People vs Labiaga, G.R. No. 202867, 15 July
2013
The SC said that if the wound inflicted on the
victim is a non-fatal wound, the crime is only in
the attempted stage. But if the wound is a mortal
wound and the victim survived, the crime is in the
frustrated stage. If the wound is non-fatal, it
cannot be said that the offender has performed all
the acts of execution. If it is a mortal wound, the
offender has performed all the acts of execution.
There is nothing left to be done.
Facts: One evening, appellant Regie Labiaga shot
Gregorio Conde just outside the latter’s house.
Gregorio shouted for help, causing his daughters
Judy & Glenelyn to come out of their house. When
they did so, Labiaga shot Judy in the abdomen.
Gregorio and Judy were rushed to the hospital, but
Judy was pronounced dead on arrival. George
recovered after treatment.
Labiaga and two other individuals were charged
with murder and frustrated murder, both with the
use of an unlicensed firearm, in the RTC of Iloilo.
Only Labiaga was convicted as charged. The CA
affirmed the conviction.
Issue: Whether Labiaga is guilty of frustrated
murder.
Ruling:
The Court notes, however, that appellant should
be convicted of attempted murder, and not
frustrated murder in Criminal Case No. 2002-
1777.
Article 6 of the Revised Penal Code defines
the stages in the commission of felonies:
Consummated felonies as well as those which
are frustrated and attempted, are punishable. A
felony is consummated when all the elements
necessary for its execution and accomplishment
are present; and it is frustrated when the
offender performs all the acts of execution
which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of
the will of the perpetrator. There is an attempt
when the offender commences the commission
of a felony directly by overt acts, and does not
perform all the acts of execution which should
produce the felony by reason of some cause
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or accident other than his own spontaneous
desistance.
In Serrano v. People, we distinguished a frustrated
felony from an attempted felony in this manner:
In [a] frustrated felony, the offender has
performed all the acts of execution which
should produce the felony as a consequence;
whereas in [an] attempted felony, the offender
merely commences the commission of a felony
directly by overt acts and does not perform all
the acts of execution. 2.) In [a] frustrated
felony, the reason for the non-accomplishment
of the crime is some cause independent of the
will of the perpetrator; on the other hand, in
[an] attempted felony, the reason for the
nonfulfillment of the crime is a cause or
accident other than the offender’s own
spontaneous desistance.
In frustrated murder, there must be evidence
showing that the wound would have been fatal
were it not for timely medical intervention. If
the evidence fails to convince the court that
the wound sustained would have caused the
victim’s death without timely medical attention,
the accused should be convicted of attempted
murder and not frustrated murder.
In the instant case, it does not appear that the
wound sustained by Gregorio Conde was
mortal. Since Gregorio’s gunshot wound was
not mortal, we hold that appellant should be
convicted of attempted murder and not
frustrated murder [end].
Frustrated Stage
When the offender performs all the acts of
execution which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of the
will of the perpetrator.
Here he is already in the objective stage; he had
performed all acts of execution which would
produce the felony. But it was not produced by
reason of causes independent of his will.
Ex. A wanted to kill his own father to get his
inheritance immediately and wanted to be rich.
Went to drug store and bought poison. Before
going home, he went to the house of his friend and
told his friend "tonight I will be rich, I will be
poisoning my father, I will be a millionaire." After
telling that to his friend, A ran to his house. Upon
reaching his house he was already taking the
poison out of the plastic. Meanwhile, the friend
went to the police and told plan of A to kill the
father. The friend and the police went to the
house of A and the father. Upon reaching the
house, they saw A in the act of taking out the said
poison from the plastic bag. A was arrested.
Is A liable of attempted parricide?
No. He is not yet liable of attempted parricide. The
act of buying poison, taking out of the plastic are
only preparatory act. It is not yet an OA directly
connected to parricide. He may use the poison not
really to kill the father, he may use it to kill insects
or pests. Therefore, he cannot be liable of
attempted parricide.
A mixed the poison to the juice of the father and
then he gave it to his father. The father was about
to drink the juice with poison. However, since the
father was clumsy, the glass fell from the hands of
the father.
Is A liable of attempted parricide?
Yes. He already liable. The moment he poured the
poison in the juice of the father and he gave it to
the father for him to drink, he already performed
an OA directly connected to parricide. However,
parricide was not consummated and he was not
able to perform all the acts of execution by reason
of an accident. It was purely accidental because
the father was clumsy and the glass slipped from
his hands.
In the same problem, after mixing the poison in
the juice, he gave it to his father. The father was
about to drink the juice with a poison when A
took pity on his father and had a change of heart.
He immediately grabbed the juice and threw it on
the garden.
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Is A liable of attempted parricide?
No. He is not liable of attempted parricide. The act
of mixing of the poison with the juice is an OA
directly connected to parricide, however, he was
not able to perform all acts of execution by reason
of his own spontaneous desistance. Therefore, he
is absolved of criminal lability. Because for one to
be liable in the attempted stage, the reason for the
non-consummation of the crime must not be his
own spontaneous desistance.
In the same problem, A mixed the poison with a
juice and gave it to his father. The father drank the
juice and was poisoned. Suddenly, he was already
showing signs of being poisoned, he was chilling.
Upon seeing his father in that condition, A
immediately administered an antidote to his
father, after that he immediately rushed his father
to the hospital. The father survived. The doctor
said, were it not for the antidote given by the son,
the father would have died.
Is the son liable of attempted parricide?
He is not liable of attempted parricide. Because
the moment the father drank the juice, all the acts
for the performance of the crime has already been
done. The offender has already performed all acts
of execution necessary to consummate the crime.
However, the crime was not consummated.
Is the son liable of frustrated parricide?
He is NOT also liable of frustrated parricide
because in frustrated parricide although the
offender has already performed all the acts of
execution, the reason for the non-consummation
of the crime must be a cause independent of his
will. The reason for the non-consummation of the
crime is the own will of the son. Therefore, the
son is not liable of frustrated homicide.
Definitely he is also not liable of consummated
parricide.
The son is liable of physical injuries depending on
the required medical intervention. 1-9 days slight
physical injuries. 10-30 days less serious physical
injuries, more than 30 days serious physical
injuries.
Abella v. People, G.R. No. 198400, 7 October
2013
Facts: Fe Abella was charged with frustrated
homicide committed against his younger brother
Benigno, in the RTC of Misamis Oriental, CDO
City.
Benigno was asked to pacify his brother Fe, who
was fighting with Alejandro and Dionisio. He was
able to convince Fe to go home. Benigno and his
wife followed suit and along the way, dropped by
the houses of Alejandro and Dionisio to apologize
for Fe’s conduct. When they were at Alejandro’s
house, Fe arrived bringing with him two scythes,
one in each hand. Fe wanted to enter Alejandro’s
house but Benigno blocked him. Fe hacked
Benigno’s neck once, causing the latter to fall.
Benigno was immediately rushed to the hospital
while Fe chased Alejandro. Benigno suffered hack
wounds on his neck and left hand.
Fe denied hacking his brother, and claimed that at
the time of the hacking, he and his family resided
4 hours drive away from where the incident
occurred.
The RTC convicted Fe of frustrated homicide. On
appeal to the CA, Fe claimed that the RTC failed
to establish his intent to kill Benigno. The CA
affirmed the RTC, holding that intent to kill was
sufficiently proven.
Issue: Whether the RTC and CA erred in
convicting Fe for frustrated homicide instead of
either acquitting him or convicting him of serious
physical injuries.
Ruling: Petition DENIED.
In cases of frustrated homicide, the main
element is the accused’s intent to take his
victim’s life. The prosecution has to prove this
clearly and convincingly to exclude every possible
doubt regarding homicidal intent. And the intent
to kill is often inferred from, among other things,
the means the offender used and the nature,
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location, and number of wounds he inflicted on his
victim.
Fe now wants to impress upon this Court that he
had no motive to attack, much less kill Benigno. Fe
likewise invokes the doctrine in Pentecostes, Jr. to
argue that homicidal intent is absent in a case
where the accused shot the victim only once when
there was an opportunity to do otherwise. The
petitioner belabors his claim that had he intended
to kill Benigno, he could have repeatedly hacked
him to ensure the latter’s death, and not leave right
after the blow to chase Alejandro instead.
The analogy is flawed.
In Pentecostes, Jr., the victim was shot only once in
the arm, a non-vital part of the body. The attending
physician certified that the injury would require
medical attendance for ten days, but the victim was
in fact promptly discharged from the hospital the
following day.
In Benigno’s case, he sustained an 11-centimeter
long hacking wound in the neck and a 4-cm long
incised wound in his left hand caused by the
unsterile scythe used by Fe. Dr. Ardiente testified
that “it is possible to have complications [resulting
from these] injuries because the wounds [were]
extensive and [they were] big and [they were open
wounds], so there is a possibility of infection[s]
[resulting from these] kind[s] of wounds, and the
instrument used [was] not [a] sterile instrument
contaminated with other thing[s].” No
complications developed from Benigno’s wounds
which could have caused his death, but he was
confined in the hospital for a period of 17 days.
From the foregoing, this Court concludes and thus
agrees with the CA that the use of a scythe
against Benigno’s neck was determinative of
Fe’s homicidal intent when the hacking blow
was delivered. It does not require imagination to
figure out that a single hacking blow in the neck
with the use of a scythe could be enough to
decapitate a person and leave him dead. While no
complications actually developed from the gaping
wounds in Benigno’s neck and left hand, it
perplexes logic to conclude that the injuries he
sustained were potentially not fatal considering the
period of his confinement in the hospital. A mere
grazing injury would have necessitated a lesser
degree of medical attention.
This Court likewise finds wanting in merit the Fe’s
claim that an intent to kill is negated by the fact that
he pursued Alejandro instead and refrained from
further hacking Benigno. What could have been a
fatal blow was already delivered and there was no
more desistance to speak of. Benigno did not die
from the hacking incident by reason of a timely
medical intervention provided to him, which is a
cause independent of the petitioner’s will [end].
ATTEMPTED FELONY vs FRUSTRATED
FELONY
In the attempted felony, the offender merely
commences the commission of the felony by overt
acts. In a frustrated felony, the offender has
already performed all the acts of execution.
In an attempted felony, the felony was not
consummated by reason of some cause or accident
other than the offender's spontaneous desistance.
In a frustrated felony, the felony was not
consummated by reason of some cause
independent of the will of the perpetrator.
In an attempted felony, the offender is only in the
subjective phase of the felony. He still has control
over his acts. Whereas in the frustrated stage of
committing a felony, the offender is already in the
objective phase of committing the felony. He no
longer has any control over his acts.
CONSUMMATED FELONY
A felony is consummated when all the elements
necessary for its execution and accomplishment are
present.
Example:
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X saw his enemy Y. He went to his house to get
his pistol, pointed the gun at the head of Y and
pulled the trigger. However the gun jammed, no
bullet came out. X is liable of attempted homicide.
The act of X of pointing the gun and pulling the
trigger with intent to kill are overt acts directly
connected to homicide. He was unable to perform
all the acts of execution because it is purely
accidental that the gun did not fire. It was not by
reason of his desistance. Therefore, he is liable for
attempted homicide.
Same problem:
With intent to kill X pointed the gun to Y. He
pulled the trigger, no bullet came out. He again
pulled the trigger but no bullet came out. Then he
looked at the gun, it was unloaded. Is X liable of
attempted homicide?
X is liable of an impossible crime.
Why not attempted homicide?
Because when the gun has no bullet, there is
inherent impossibility to consummate the crime.
Here, what is present is physical or factual
impossibility unknown to the offender. There was
physical impossibility and the same was not known
to the offender. Under any and all circumstances,
it will never fire. Hence, what we have now is an
impossible crime and not anymore an attempted
felony.
ATTEMPTED FELONY vs IMPOSSIBLE
CRIME
In impossible crime, the act of execution of the
felony is not possible of accomplishment. Whereas
in attempted felony, the act of execution is possible
of accomplishment.
In impossible crime, the act was not accomplished
because of the inherent impossibility. In
attempted, the act was not consummated by reason
of some cause or accident other than offender's
spontaneous desistance.
Example:
X in the course of a fight stabbed Y but Y was able
to evade. What crime is committed by X?
Attempted homicide.
The act of X in trying to stab Y with the use of a
knife is an overt aft directly connected to homicide
yet he was not able to perform all the acts of
execution because it was purely accidental that Y
was able to evade the blow.
Same problem:
Y was hit and sustained a wound. The wound was
in the chest. Doctor said that it would heal within
a period of 60days. What crime was committed?
Attempted homicide.
The act of stabbing Y and hitting him with the
effect of Y sustaining a wound which would heal
within 60days are overt acts directly connected
with the crime of homicide. However, he was not
able to perform all the acts of execution because
the wound he inflicted on Y is a non-fatal wound.
Same problem:
Y was hit and the knife pierced through the heart.
The wound was fatal but he survived because of
the immediate medical operation performed. What
crime? Frustrated homicide.
When he stabbed Y, he hit a vital organ thereby
inflicting upon him a mortal wound. He has already
performed all the acts of execution but still the
victim survived because of a cause independent of
his will which is the immediate medical
intervention.
Material Crimes - if a crime admits stages of
attempted, frustrated and consummated
Formal Crimes - if a crime does not admit of any
stage [except consummated.] They are called
formal crimes because they are crimes based on
consequence, based on the result. Punished only
in consummated stage.
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Ex. Adultery is a formal crime, it is a crime of
consequence, a crime of result, it admits no
stages. There is no such thing as attempted or
frustrated adultery, only consummated.
Physical injuries does not admit attempted or
frustrated stage because the penalty is based on
the injury sustained by the victim.
Other formal crimes: Slander, False Testimony
CRIMES WHICH DO NOT ADMIT OF
FRUSTRATED STAGE:
1. THEFT
Valenzuela vs People
Theft does not have frustrated stage, only
attempted and consummated stages.
As held in that case, in case of theft, there cannot
be frustration because the moment unlawful taking
is complete, theft is consummated. The unlawful
taking is complete when the offender gains
possession of the personal property of another
even if there is no opportunity to dispose of the
said property.
Under Art. 308 in relation to Art. 309, theft is
committed when the person takes the personal
property of another with intent to gain without
violence, force or intimidation upon persons or
things without the consent of the owner. (Edit)
Theft can admit only either an attempted and
consummated stage because the moment the
offender gains possession of the personal
property of another, unlawful taking is already
committed. Even if he has no opportunity to
dispose of the property and the moment the
unlawful taking is complete, theft is already
consummated. Hence, there can be no instance of
frustrated theft.
If the accused had intent to gain but was unable to
actually gain possession, it is attempted theft.
Up to 2006, there is attempted, frustrated and
consummated. But in 2007, the SC said no, there
can be no frustrated theft.
Valenzuela v. People, G.R. No. 160188, 21 June
2007
Facts: Petitioner Aristotel Valenzuela and
Calderon were seen carting away from the Super
Sale Club supermarket of SM North Edsa cases of
Tide detergent. They loaded the detergent onto a
taxicab and tried to leave the parking area, but they
were stopped by the guards. They were
apprehended and were eventually charged with
theft in the RTC of QC.
They were convicted as charged. Both appealed to
the CA, but Calderon did not file a brief, thus his
appeal was dismissed. Valenzuela argued that he
should only be convicted of frustrated theft
since at the time he was apprehended, he was
never placed in a position to freely dispose of
the articles stolen. The CA disagreed and affirmed
his conviction.
Issue: Whether Valenzuela is guilty of frustrated
theft on the ground that he was unable to freely
dispose of the detergent.
Ruling: Petition DENIED.
Article 308 provides for a general definition of
theft, and three alternative and highly
idiosyncratic means by which theft may be
committed. In the present discussion, we need
to concern ourselves only with the general
definition since it was under it that the
prosecution of the accused was undertaken and
sustained. On the face of the definition, there
is only one operative act of execution by the
actor involved in theft: the taking of personal
property of another. It is also clear from the
provision that in order that such taking may
be qualified as theft, there must further be
present the descriptive circumstances that the
taking was with intent to gain; without force
upon things or violence against or intimidation
of persons; and it was without the consent of
the owner of the property.
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On the critical question of whether it was
consummated or frustrated theft, we are obliged
to apply Article 6 of the Revised Penal Code
to ascertain the answer. Following that
provision, the theft would have been frustrated
only, once the acts committed by petitioner, if
ordinarily sufficient to produce theft as a
consequence, "do not produce [such theft] by
reason of causes independent of the will of the
perpetrator." There are clearly two
determinative factors to consider: that the felony
is not "produced," and that such failure is due
to causes independent of the will of the
perpetrator. The second factor ultimately
depends on the evidence at hand in each
particular case. The first, however, relies
primarily on a doctrinal definition attaching to
the individual felonies in the Revised Penal
Code as to when a particular felony is "not
produced," despite the commission of all the
acts of execution. So, in order to ascertain
whether the theft is consummated or frustrated,
it is necessary to inquire as to how exactly is
the felony of theft "produced." Parsing through
the statutory definition of theft under Article
308, there is one apparent answer provided in
the language of the law –that theft is already
"produced" upon the "tak[ing of] personal
property of another without the latter's
consent."
The ability of the offender to freely dispose of
the property stolen is not a constitutive element
of the crime of theft. It finds no support or
extension in Article 308, whether as a
descriptive or operative element of theft or as
the mens rea or actus reus of the felony. Xxx
Such factor runs immaterial to the statutory
definition of theft, which is the taking, with
intent to gain, of personal property of another
without the latter's consent. While the
Diño/Flores dictum is considerate to the mindset
of the offender, the statutory definition of theft
considers only the perspective of intent to gain
on the part of the offender, compounded by
the deprivation of property on the part of the
victim.
For the purpose of ascertaining whether theft
is susceptible of commission in the frustrated
stage, the question is again, when is the crime
of theft produced? There would be all but
certain unanimity in the position that theft is
produced when there is deprivation of personal
property due to its taking by one with intent
to gain. Viewed from that perspective, it is
immaterial to the product of the felony that
the offender, once having committed all the acts
of execution for theft, is able or unable to
freely dispose of the property stolen since the
deprivation from the owner alone has already
ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino's
commentaries, as earlier cited, that "[i]n theft
or robbery the crime is consummated after the
accused had material possession of the thing
with intent to appropriate the same, although
his act of making use of the thing was
frustrated."
It might be argued, that the ability of the
offender to freely dispose of the property stolen
delves into the concept of "taking" itself, in
that there could be no true taking until the
actor obtains such degree of control over the
stolen item. But even if this were correct, the
effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would
mean that not all the acts of execution have
not been completed, the "taking not having
been accomplished."
Indeed, we have, after all, held that unlawful
taking, or apoderamiento, is deemed complete
from the moment the offender gains possession
of the thing, even if he has no opportunity to
dispose of the same.
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With these considerations, we can only
conclude that under Article 308 of the
Revised Penal Code, theft cannot have a
frustrated stage. Theft can only be
attempted or consummated.
Neither Diño nor Flores can convince us
otherwise. Both fail to consider that once the
offenders therein obtained possession over the
stolen items, the effect of the felony has been
produced as there has been deprivation of
property. The presumed inability of the
offenders to freely dispose of the stolen
property does not negate the fact that the
owners have already been deprived of their
right to possession upon the completion of the
taking.
Moreover, as is evident in this case, the
adoption of the rule "that the inability of the
offender to freely dispose of the stolen
property frustrates the theft –would introduce a
convenient defense for the accused which does
not reflect any legislated intent [end].
Canceran v. People, G.R. No. 206442, 1 July
2015
Facts: An information was filed in the RTC of
Misamis Oriental, CDO, charging Jovito Canceran
and 2 others with “frustrated theft” of 14 cartons
of Pond’s White Beauty Cream belonging to
Ororama Mega Center grocery store.
The prosecution alleged that Canceran paid for 2
boxes of Magic Flakes at the counter of Ororama.
One of the security guards and the packer
inspected the boxes and found that they contain 14
boxes of Pond’s cream. Canceran hurriedly left and
a chase ensued, but he was caught by Ororama
employees.
Canceran denied the charges against him, claiming
that a man requested him to pay for the latter’s
items in his cart at the cashier, and these items were
the 2 boxes of Magic Flakes. Afterwards, he tried
to leave Ororama but 3 persons ran after him and
caught him.
The RTC found him guilty of consummated theft
in line with the Valenzuela ruling that there is no
crime of frustrated theft. The CA affirmed the
RTC ruling, debunking Canceran’s contention that
there was no taking on the basis that he merely
pushed the cart loaded with the goods to the
cashier’s booth. The CA held that unlawful taking
was complete from the moment Canceran gained
possession of the Cream, even if he had no
opportunity to dispose of the same.
Issue: Whether Canceran should be acquitted in
the crime of theft as it was not charged in the
Information.
Ruling: No
Unlawful taking, which is the deprivation of one's
personal property, is the element which produces
the felony in its consummated stage. At the same
time, without unlawful taking as an act of
execution, the offense could only be attempted
theft, if at all.
It might be argued, that the ability of the offender
to freely dispose of the property stolen delves into
the concept of 'taking' itself, in that there could be
no true taking until the actor obtains such degree
of control over the stolen item. But even if this
were correct, the effect would be to downgrade the crime to
its attempted, and not frustrated stage, for it would mean
that not all the acts of execution have not been
completed, the "taking not having been
accomplished.
A careful reading of the allegations in the
Information would show that Canceran was
charged with "Frustrated Theft" only. Pertinent
parts of the Information read: xxx take, steal and
carry away 14 cartons of Ponds White Beauty
Cream valued at P28,627,20, belonging to
Ororama Mega Center, thus performing all the
acts of execution which would produce the
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crime of theft as a consequence, but
nevertheless, did not produce it by reason of
some cause independent of accused's will.
As stated earlier, there is no crime of Frustrated
Theft. The Information can never be read to
charge Canceran of consummated Theft because
the indictment itself stated that the crime was never
produced. Instead, the Information should be
construed to mean that Canceran was being
charged with theft in its attempted stage only.
Necessarily, Canceran may only be convicted
of the lesser crime of Attempted Theft.
An accused cannot be convicted of a higher
offense than that with which he was charged in the
complaint or information and on which he was
tried. It matters not how conclusive and
convincing the evidence of guilt may be, an
accused cannot be convicted in the courts of any
offense, unless it is charged in the complaint or
information on which he is tried, or necessarily
included therein. He has a right to be informed as
to the nature of the offense with which he is
charged before he is put on trial, and to convict
him of an offense higher than that charged in the
complaint or information on which he is tried
would be an unauthorized denial of that right.
Indeed, an accused cannot be convicted of a crime,
even if duly proven, unless it is alleged or
necessarily included in the information filed against
him. An offense charged necessarily includes the
offense proved when some of the essential
elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter.
The crime of theft in its consummated stage
undoubtedly includes the crime in its attempted
stage. In this case, although the evidence presented
during the trial prove the crime of consummated
Theft, he could be convicted of Attempted Theft
only [end].
The husband and the wife went to the department
store. The husband took 5 pairs of shorts, went to
the fitting room. After 10 minutes, he got out, went
to the saleslady. He was stopped. It was discovered
that he was wearing the shorts. What crime?
Consummated theft. Even if he has no
opportunity to dispose because he was discovered
by the guard before leaving the store. The fact that
he had already taken it and wore it, he had already
gained possession of the personal property of the
store hence he is already liable for consummated
theft.
A woman went to Rustan’s and bought perfume.
While she was sitting and the saleslady was
taking the perfume in the counter, she saw a new
line of lipsticks on a glass shelf. A note was posted
on the glass shelf saying, “Do not open, ask for
assistance”. She went there but it was locked. Saw
the key on the table and opened it, took one and
slipped in inside her bag, closed the glass, placed
the key back on the table. The saleslady arrived
and gave her the perfume. She was about to leave
Rustan’s when suddenly this certain device
detected and made a sound, so the unpaid lipstick
was discovered.
What crime was committed?
Consummated Theft. Even if she has not yet left
Rustan’s, the moment she took the lipstick from
the glass shelf, taking is already complete, theft is
already consummated.
In the same problem, woman took a lipstick and
slipped it inside her bag. Suddenly she has a
change of heart. She took the lipstick from her
back and placed it back on the glass shelf and the
closed the glass and locked it.
Did she commit any crime?
Yes. She is already liable of consummated rape.
The moment she took the lipstick from the glass
shelf and placed it inside her bag, taking is already
complete, therefore, theft is already
consummated. Her change of heart would not
amount to desistance. Too late. Desistance will
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only lie in the attempted stage but never in the
consummated nor in the frustrated stage.
What is the effect of returning back the lipstick?
There will only be NO civil liability. She will not
be made to pay the lipstick because she returned
it but nevertheless, she is already liable for
consummated theft because unlawful taking is
already committed. This is desistance on her part
but this will not acquit her as the theft was
already consummated. It will only be akin to a
mitigating circumstance, and will reduce her
criminal liability.
In the same case, the woman opened the glass
shelf. She was about to take the lipstick when
suddenly there was this hand placed on top of her
hand before she could even get the lipstick.
Unknown to her, her acts were being seen on a
CCTV camera and the head of the administrative
office immediately went to her upon seeing that
she was about to take the lipstick.
Is the woman liable of any crime?
Yes. She is already liable of attempted theft. A
note was posted on the glass shelf saying, do not
open, ask for assistance. The moment she opened
it with use of the key, it shows her intent to gain.
It is on the attempted stage because she has not
yet taken possession of the personal property of
another.
2. RAPE
As held in the case of People vs Quiñanola, there
is no frustration in rape.
People vs Quiñanola & Floro, G.R. No. 126148,
5 May 1999
There is no frustration in rape because as defined
by the law rape is committed by having carnal
knowledge of a woman against her will. Since the
law uses the word carnal knowledge and not sexual
intercourse, therefore the mere touching by the
penis of the man of the lips of the labia of the
woman's genitalia would already consummate the
crime of rape.
There must be penetration to consummate rape.
Only the slightest-mere touching of the labia-is
required.
Facts: One evening 15-yr old Catalina Carciller
with her male cousin and another male companion
were on their way home from a dance when
Quiñanola & Floro-both armed with guns
suddenly turned up. The two males were instructed
to lie face down on the ground, but they were able
to escape. Catalina was forced to sit on the ground,
and was instructed at gunpoint to remove her
pants. She resisted but Floro succeeded in
undressing her. Quiñanola unzipped his pants &
laid on top of her while Floro held her legs.
Quiñanola pumped and pushed and pulled, and
she felt his organ on the lips of her genitalia.
Afterwards, Floro took his turn by placing himself
on top of Catalina, and she felt his organ on the
lips of her vulva while Floro made a push and pull
movement.
Quiñanola and Floro were charged with rape in the
RTC of Cebu City, which convicted them of
frustrated rape.
Issue: Whether the RTC erred in convicting them
of frustrated rape.
Ruling:
In the context it is used in the Revised Penal
Code, "carnal knowledge," unlike its ordinary
connotation of sexual intercourse, does not
necessarily require that the vagina be penetrated
or that the hymen be ruptured. The crime of
rape is deemed consummated even when the
man's penis merely enters the labia or lips of
the female organ or, as once so said in a case,
by the "mere touching of the external genitalia
by a penis capable of consummating the sexual
act."
The trial court, in convicting appellants only of
frustrated rape, ruled that there was no
"conclusive evidence of penetration of the genital
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organ of the offended party," in that: (a) Catalina
had admitted that she did not spread her legs
and (b) the medico-legal officer's findings showed
she did not sustain any extragenital injuries and her
hymenal orifice was so small that an erect average-
size penis would not have completely penetrated it
without causing laceration.
Let it be said once again that, as the Revised
Penal Code presently so stands, there is no
such crime as frustrated rape. In People vs. Orita,
the Court has explicitly pronounced: "Clearly, in
the crime of rape, from the moment the offender
has carnal knowledge of his victim, he actually
attains his purpose and, from that moment also all
the essential elements of the offense have been
accomplished. Nothing more is left to be done by
the offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases, We have set
the uniform rule that for the consummation
of rape, perfect penetration is not essential.
Any penetration of the female organ by the
male organ is sufficient. Entry of the labia
or lips of the female organ, without rupture of
the hymen or laceration of the vagina is sufficient
to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female
organ because not all acts of execution was
performed. The offender merely commenced the
commission of a felony directly by overt acts.
Taking into account the nature, elements and
manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can
ever be committed. xxxx
The Court is not unaware that Republic Act No.
7659, amending Article 335 of the Revised Penal
Code, has retained the provision penalizing with
reclusion perpetua to death an accused who commits
homicide by reason or on the occasion of an
attempted or frustrated rape. Until Congress sees it fit
to define the term frustrated rape and thereby
penalize it, the Court will see its continued usage in
the statute book as being merely a persistent lapse
in language.
Each appellant is liable for two counts of
consummated rape on account of a clear
conspiracy between them shown by their obvious
concerted efforts to perpetrate, one after the other,
the crime. Each of them, therefore, is responsible
not only for the rape committed personally by him
but also for the rape committed by the other as well
[end].
People vs Pareja
It is settled in jurisprudence that the slightness of
penetration already consummates the crime of
rape. But if what the penis has touched is not even
the labia of the pudendum of the woman's genitalia
but only the outer surface, the crime can either be
attempted rape or acts of lasciviousness.
When the penis of the woman touched the surface
of the woman's genitalia, there is intent to lie with
the victim. The crime committed is attempted rape.
But absent intent to lie, the crime committed
is acts of lasciviousness.
Intent to lie distinguishes attempted rape from
acts of lasciviousness.
In that case, the man went inside the bedroom,
undressed the girl, undressed himself, tried to
insert his penis into the genitalia of the girl. The girl
cried and cried, the man left. Supreme Court said
these acts of the man show that he has the intent
to lie with the girl. Attempted rape not merely acts
of lasciviousness.
As opposed to Cruz vs People. In that case the
SC said that the mere act of a man of climbing on
top of a naked woman absent any evidence that his
erected penis has the capability to penetrate the
genitalia of the woman does not bring about the
crime of rape. Those acts do not show intent to
rape absent said evidence. Crime committed was
acts of lasciviousness and not attempted rape.
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A woman was raped. She filed a case of rape
against the man. In her open court testimony, she
said she was not sure if the penetration was
complete. Likewise in the medical certificate it
shows that her hymen was not lacerated, it was
intact.
Can the said man be liable of consummated rape?
Yes. Because according to the SC, Rape does not
admit of any frustrated stage. Rape is
consummated the moment the penis has touched
the lips or the labia of the pudendum of a
woman's genitalia. It is not necessary that there is
full or complete penetration nor a hymenal
laceration. The hymen may remain intact yet rape
can be committed because what is required is the
penis must touch lips or the labia.
People vs. Lizada
The man was still in his shorts. His penis has not
yet even touched the genitalia of the girl. He only
touched the private parts of the girl.
How come the conviction was for attempted rape
and not mere acts of lasciviousness?
SC: Attempted rape because the SC [took] into
consideration the 3 other consummated rape that
has been done by the stepfather on the daughter.
Considering that in these 3 former acts rape had
been consummated, the obvious intent of the
stepfather is to rape the girl. It just so happen that
he saw the son peeping and so he went out of the
room. That is the reason given.
If that is the reason given without the said facts
that there has been consummated rape for the
past 3 acts, it should only be acts of lasciviousness
or at least attempted rape if there in an intent to
lie. In the case, the stepfather was still in his
shorts, the penis has not yet touched even the
outer portion of a woman's genitalia. Absent the
facts that there were 3 former consummated
rape, it should only be acts of lasciviousness.
Because to amount to at least attempted stage, it
is necessary that the penis must touch at least the
outer portion to show intent to lie. The man was
still in his shorts, how can you know that there
was intent to lie. It is only a different ruling
because there were 3 previous consummated
rape and the SC considered all these saying that
the obvious intent of the stepfather was also to
rape the daughter.
People vs. Jalosjos
Jalosjos was charged with many cases. In one
case, the penis has only touched that outer
portion which becomes hairy during puberty, not
yet the lips but that outer portion which becomes
hairy.
SC: it was only acts of lasciviousness.
How did the SC distinguish acts of lasciviousness
from attempted rape. If the penis touches the said
outer portion and there was an obvious intent to
lie with the girl, it is attempted rape. If no obvious
intent to lie or have carnal knowledge of the girl,
it only acts of lasciviousness.
That is only one of the cases because in other
cases he was convicted of consummated rape.
3. IMPOSSIBLE CRIME
In IC, the offender already performed all the acts
of execution-it is already consummated-but the
intended crime was not produced as a result
because of its inherent impossibility or
inadequacy/ineffectuality of the means
employed.
Art. 7. When light felonies are punishable. —
Light felonies are punishable only when they have
been consummated, with the exception of those
committed against person or property.
GR: Light felonies are punishable only when they
are on their consummated stage.
XPN: Against person or property
Art. 8. Conspiracy and proposal to commit felony.
— Conspiracy and proposal to commit felony are
punishable only in the cases in which the law
specially provides a penalty therefor.
A conspiracy exists when two or more
persons come to an agreement concerning the
commission of a felony and decide to commit it.
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There is proposal when the person who has
decided to commit a felony proposes its execution
to some other person or persons.
Conspiracy is a bilateral act. The must be at least
2 persons who agreed to the commission of the
crime. Proposal to commit a crime is a unilateral
act. Only 1 person who has decided to commit the
felony proposes it to another person. Is that
another person agreed to the commit the crime,
there is now conspiracy.
Conspiracy as rule is not a punishable act,
likewise proposal to commit a crime is not a
punishable act because they are mere
preparatory acts.
Exception to the rule as provided for in the first
paragraph of Art 8 when the law specially
provides a penalty therefor xxx then conspiracy
and proposal to commit a crime are crimes by
themselves. They are punishable act[s].
If conspiracy or proposal to commit a crime are
provided in penalties by law, it is not necessary
that there be an overt act committed. The mere
act of conspiring or proposing will already give
rise to a crime.
Ex. conspiracy to commit treason, rebellion,
sedition. In SPL conspiracy to commit terrorism.
It is not necessary that there be overt acts. They
are punishable acts by themselves.
CONSPIRACY AS A MEANS OF COMMITTING A
CRIME
If conspiracy is only a means of committing a
crime it is not yet a punishable act. The mere act
of conspiring will make the offenders co-
conspirators but they are not yet punishable, they
are not yet criminally liable.
TWO KINDS OF CONSPIRACY
1. Direct or Express Conspiracy - when the
offenders or conspirators met, planned, agreed,
decided to commit a crime. There is a
preconceived plan prior to the commission of the
crime.
For one to be criminally liable, it is necessary that
he is not only a part of the agreement, he must
also be present at the time of the commission of
the crime. Even if he is part of the agreement if at
the time of the commission of the crime he failed
to appear, such failure on his part to appear at the
scene of the crime would be construed by law as
a desistance. Therefore, even if he part of the
agreement he will not be liable as a conspirator.
Ex. A, B and C decided to kill X on a particular date
and time. On the said date and time, A and B
arrived and killed X. However, C failed to appear.
Although C was part of the agreement, he cannot
be held criminally liable as a conspirator for the
crime of murder because he failed to appear at
the scene of the crime. His failure to appear is
construed by law as a desistance on his part.
In the same problem but all were present. A and
B were about to kill X but C performed acts
preventing A and B from committing the crime.
Although C was a conspirator, part of the
agreement, although he appeared at the scene of
the crime. Since C performed acts trying to
prevent A and B from committing the crime, he
cannot be held criminally liable as a conspirator
for the crime of murder in the said case.
For a conspirator to be held liable, he must be
part of the agreement and he must be present
at the scene of the crime to commit the crime.
His failure to appear is desistance and therefore,
he cannot be held criminally liable. Likewise even
if he appeared at the scene of the crime but he
performed acts to prevent others from
committing the crime, he is also not criminally
liable.
People v. Pagalasan, et al., G.R. No. 131926 &
138991, 18 June 2003
Facts: On the evening of Sept. 4, 1994 Spouses
George and Desiree Lim and their 3 young
children, one of whom was Christopher, were in
their house watching TV when 4 masked and
armed men entered their house. The men took
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valuables and left Desiree a note, while they forced
George and Christopher into George’s car. They
drove away, and blindfolded George and
Christopher. The car stopped and three of the
kidnappers and Christopher alighted. The car
drove off with one of the kidnappers and George.
Near a police checkpoint the masked driver
switched off the headlights and removed his
bonnet and George’s blindfold. George looked at
the driver, who turned out to be the appellant
Michael Pagalasan. Eventually, Pagalasan was
taken into police custody. George returned home
after giving his affidavit, where he learned that the
kidnappers were to communicate with them only
through “Mubarak II or 2”.
Michael initially confessed that he acted in cahoots
with the brothers Ronnie and Aladin Cabalo,
Ferdinand and Bong. Thus, the Cabalo brothers,
Puntuan and Quizon were arrested. On 6
September, George received another letter
demanding the release of the Cabalos and P 3M
for Christopher’s release. On 9 Sept., George
received a letter from Mubarak II or 2, demanding
among others that their son would not be released
unless Puntuan was released. On 10 Sept.
Christopher was rescued by the police without any
ransom money being paid.
Pagalasan was charged with violation of PD 1866
in the RTC of General Santos. Also, He, along
with the Cabalos, Cortez, a Fernando and Peter
Doe were charged with kidnapping for ransom
before the same trial court.
Pagalasan was convicted of kidnapping for ransom
of George and Christopher, giving full credence to
George’s testimony of the incident.
Issue:
1. Whether Pagalasan is guilty of kidnapping
2. Whether the prosecution failed to prove
that Pagalasan (and his cohorts) intended
to extort ransom
Ruling: RTC decision AFFIRMED WITH
MODIFICATION
1. Pagalasan is guilty of kidnapping
In this case, the evidence on record inscrutably
shows that Pagalasan and his three cohorts were
armed with handguns; two of them had hand
grenades, and all of them had masks over their
faces. They gained entry into the Lim residence
after overpowering the security guard Ferdinand
and the housemaid Julita, and tying their hands
behind their backs. One of the masked men
remained in the sala, while the three others barged
into the bedroom of George and Desiree, and
kidnapped George and his ten-year-old son
Christopher. Pagalasan and his cohorts forced
father and son to board George's car. The
appellant drove the car, dropped off Christopher
and his cohorts at Sitio Tupi, and drove on with
George in the car towards the direction of Maasim.
The collective, concerted and synchronized acts of
the appellant and his cohorts before, during and
after the kidnapping constitute indubitable proof
that Pagalasan and his three companions conspired
with each other to attain a common objective: to
kidnap George and Christopher and detain them
illegally. Pagalasan was a principal by direct
participation in the kidnapping of the two victims.
2. The prosecution failed to prove that
Pagalasan (and his cohorts) intended to
extort ransom.
The prosecution failed to prove that they intended
to extort ransom from the victims themselves or
from some other person, with a view to obtaining
the latter's release. The kidnapping by itself does
not give rise to the presumption that Pagalasan and
his co-conspirators' purpose is to extort ransom
from the victims or any other person.
The only evidence adduced by the prosecution to
prove the element of extorting ransom are the
three handwritten letters: the first was received by
Desiree on September 4, 1994, while the second
and third letters were received by George on
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September 6 and 9, 1994, respectively.
As gleaned from the three letters, there was no
demand for ransom in exchange for George and
Christopher's liberty. While there is a demand for
ransom of P3,000,000 in the second letter, and a
demand for the release of Ronie Puntuan within
three days in the third letter, the said demands are
in consideration of Christopher's release from
custody, and not that of George.
Even then, the prosecution failed to adduce
evidence that the second letter demanding
ransom in the amount of P3,000,000 for the release
of Christopher actually came from Pagalasan and
his co-conspirators. It bears stressing that in the
first letter, the kidnappers made it clear to the
couple that only those communications, whether
by letter or by telephone, bearing the name "MR.
MUBARAK II or 2" came from them.
The second letter received by George was signed
by an unidentified person. It was not stated that the
letter came from "MUBARAK II-2." That the
second letter could not have come from
Pagalasan and his cohorts is buttressed by the fact
that the third letter, which came from
"MUBARAK II-2," does not even mention any
demand for ransom in the amount of P3,000,000
for Christopher's release.
The Court can only surmise, but it is possible that
the signatory and sender of the second letter
could have been acting independently of Pagalasan
and his coconspirators in order to profit from the
kidnapping. It bears stressing that the kidnapping
of Christopher and George was already known
when the appellant was arrested on September 4,
1994, and the crime had already been reported to
the police authorities. Persons other than the co-
conspirators of Pagalasan could have written the
letter.
Since there is no evidence that the signatory and
sender of the second letter is a co-conspirator of
Pagalasan, the latter is not bound by the said letter.
Even if it is assumed for the once that the second
letter came from a co-conspirator, the same is not
binding on Pagalasan, absent evidence aliunde that
he knew of and concurred with the said ransom
demand. It bears stressing that when George
received the second letter on September 6, 1994,
Pagalasan had already been arrested and detained.
The conspiracy forged by Pagalasan and his
cohorts on or before September 4, 1994 had
already ceased, when on the said date,
Pagalasan was arrested by the policemen and
detained.
Neither is the third letter admissible in evidence
against Pagalasan to prove that he conspired with
others to demand the release of Puntuan in
consideration for Christopher's freedom.
Pagalasan and his cohorts could not have planned
to demand ransom for the release of Ronie
Puntuan as early as September 4, 1994, the date of
the kidnapping: Ronie had not yet been arrested on
this date. Pagalasan was arrested first, and Ronie's
detention was only to follow. Furthermore, the
third letter was sent to George on September 9,
1994. At that point, the appellant had already been
arrested by the policemen, and was already in jail.
There is no evidence that while in jail, the appellant
had knowledge of and concurred with the said
ransom demand. It may be reasonably inferred that
Pagalasan’s co-conspirators could have decided to
demand Ronie Puntuan's release as a consideration
for Christopher's liberty, while Pagalasan was
already languishing in jail. The said demand for
ransom was a new and independent project of the
Pagasalan’s co-conspirators, growing out of their
own malice, without any a priori knowledge on the
part of Pagalasan or his post facto concurrence
therewith.
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NOTE: In addition, Pagalasan is only guilty of
slight illegal detention, not kidnapping, of George
[end].
People v. Larrañaga, et al., G.R. No. 138875-75,
3 February 2004
Facts: Appellants Francisco Juan Larrañaga,
Josman Aznar, Rowen Adlawan, Alberto Caño,
Ariel Balansag, Davidson Rusia, and brothers
James Anthony and James Andrew Uy were
charged with kidnapping and serious illegal
detention in the RTC of Cebu City.
According to the state witness Rusia and as
corroborated by other prosecution witnesses, he
met Rowen and Josman and told him to ride with
them in a white car. Following them were
Larrañaga, James Anthony and James Andrew who
were in a red car. Josman stopped the white car in
front of the waiting shed where the sisters Marijoy
and Jacqueline Chiong were standing and forced
them to ride the car. Rusia taped their mouths
while Rowen handcuffed them jointly. After
stopping by a safehouse, the group thereafter
headed to a bus terminal where they met Alberto
Caño and Ariel Balansag, and hired the white van
driven by the former. They traveled towards south
of Cebu City, leaving the red car at the terminal.
Along the way they bought barbecue and Tanduay
Rhum. After parking their vehicles near a precipice,
they drank and had a pot session. Later, Larrañaga,
et al. pulled Jacqueline out of the van and made her
dance as they encircled her, ripping her clothes in
the process. Meanwhile as instructed by Josman,
Larrañaga started to rape Marijoy inside the
vehicle, followed by Rowen, James Anthony,
Alberto and Ariel. Thereafter they raped Jaqueline.
Then, Josman intructed Rowen and Ariel to bring
Marijoy to the cliff and push her into the ravine.
Jacqueline was pulled out of the van and thrown to
the ground. She tried to run towards the road but
was caught by Larrañaga, et al., who brought her
inside the van and beat her until she passed out.
The RTC convicted them of kidnapping and
serious illegal detention.
Issue: Whether there was conspiracy.
Ruling: RTC Decision AFFIRMED WITH
MODIFICATION.
From the evidence of the prosecution, there is no
doubt that Larrañaga, et al. conspired in the
commission of the crimes charged. Their
concerted actions point to their joint purpose and
community of intent. Well settled is the rule that in
conspiracy, direct proof of a previous agreement to
commit a crime is not necessary. xxx it may be
shown by the conduct of the accused before,
during, and after the commission of the crime.
Larrañaga, et al.’s actions showed that they have the
same objective to kidnap and detain the Chiong
sisters. Rowen and Josman grabbed Marijoy and
Jacqueline from the vicinity of Ayala Center.
Larrañaga, James Andrew and James Anthony who
were riding a red car served as back-up of Rowen
and Josman. Together in a convoy, they proceeded
to Fuente Osmeña to hire a van, and thereafter, to
the safehouse of the "Jozman Aznar Group" in
Guadalupe, Cebu where they initially molested
Marijoy and Jacqueline. They headed to the South
Bus Terminal where they hired the white van
driven by Alberto, with Ariel as the conductor.
Except for James Andrew who drove the white car,
Larrañaga, et al. boarded the white van where they
held Marijoy and Jacqueline captive. In the van,
James Anthony taped their mouths and Rowen
handcuffed them together. They drank and had a
pot session at Tanawan. They encircled Jacqueline
and ordered her to dance, pushing her and ripping
her clothes in the process. Meanwhile, Larrañaga
raped Marijoy, followed by Rowen, James
Anthony, Alberto, and Ariel. On other hand,
Josman and James Andrew raped Jacqueline. Upon
Josman's order, Rowen and Ariel led Marijoy to the
cliff and pushed her. After leaving Tan-awan, they
taunted Jacqueline to run for her life. And when
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Rusia got off from the van near Ayala Center,
Larrañaga, et al. jointly headed back to Cebu City.
Clearly, the argument of Rowen, Ariel and
Alberto that they were not part of the
"conspiracy" as they were merely present
during the perpetration of the crimes charged
but not participants therein, is bereft of merit.
To hold an accused guilty as co-principal by
reason of conspiracy, he must be shown to
have performed an overt act in pursuance or
furtherance of the complicity. There must be
intentional participation in the transaction with a
view to the furtherance of the common design and
purpose. Responsibility of a conspirator is not
confined to the accomplishment of a particular
purpose of conspiracy but extends to collateral acts
and offenses incident to and growing out of the
purpose intended. As shown by the evidence for
the prosecution, Rowen, Ariel and Alberto were
not merely present at the scene of the crime.
Indeed, Larrañaga, et al., except James Anthony
who was 16 years old when the crimes charged
were committed, share the same degree of
responsibility for their criminal acts [end].
GR: Conspirators are liable only for the crime
agreed upon. They are not liable for any crime
which is not agreed upon.
Ex. A, B and C decided to kill X. Went to the place
where X will be passing at night time. When they
saw X, A B and C surrounded X and they all
stabbed X. When X was lying on the ground, A and
B left. C remained and took the valuables of X.
What is or are the criminal liabilities of A, B and
C?
A, B and C are all liable for the crime of murder as
conspirators because it is the crime agreed upon.
Only C will be liable for the crime of theft. A and B
cannot be held liable for the crime of theft
because theft was not a crime agreed upon by all
of them. Also, theft was committed in the absence
of A and B. Therefore, only C will be held liable for
theft.
It cannot be robbery because the victim is already
dead. There is no longer force or intimidation to
be used upon person or upon things if the victim
is already dead. The taking from the person is
only theft not robbery.
In the same problem, C took the valuables of X in
the presence of A and B. While he was taking
them, A said what about the cellphone, B what
about the ring, here take it also.
Although theft was not a crime agreed upon, all of
them will be held liable of the crime of theft
because although theft was not agreed upon, it
was committed in the presence of A and B and
they did not perform acts to prevent C from
committing theft.
Ex. A, B and C decided to injure X to teach him a
lesson. When X arrived, they surrounded him,
boxed, punched, hit X. While X was lying on the
ground, seriously wounded, A inflicted a fatal
wound by kicking the neck of X. X died.
Who is liable for the death of X?
All of them are criminally liable for the death of X.
They all agreed to injure X. That was their
agreement. The death of X however was the
natural consequence of their agreement to
injure X. Therefore, even if it is not their intended
act, since it is the natural consequence of the
crime, they are all criminally liable for the death
of X.
Ex. A, B and C decided to rob the house of X. They
went inside the house of X. They have already
taken the valuables. On their way out however, C
pushed a chair. The chair fell on floor and created
a noise. The owner of the house was awakened
and began shouting upon seeing A, B and C. C shot
the owner of the house. The owner died.
What is or are the criminal liabilities of A, B and
C? Who is liable for the death of X? Are all of them
liable for the death of X or is it only C?
The crime agreed upon was robbery. However, by
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reason or on the occasion of robbery, homicide
was committed. Therefore, the resulting felony is
a special complex crime. Under Art. 294 it is
robbery with homicide. Since the resulting felony
is a special complex crime, which cannot be
separated from each other, all of them can be held
criminally liable of the special complex crime of
robbery with homicide.
Thus, base from the examples given, in case of
direct or express conspiracy, the conspirators are
liable only for the crime agreed upon.
XPNS:
1. When the other crime was committed in
the presence of the other conspirators and
they did not perform acts to prevent its
commission.
2. When the other crime committed was the
natural consequence of the crime agreed
upon.
3. When the resulting crime is a composite
crime or a special complex crime or a
single indivisible complex crime.
Under the xpns, the other conspirators are liable
for the crime committed although not agreed
upon.
In case of direct or express conspiracy, for one to
be conspirator, it is not necessary that he actually
participate in the actual execution of the crime.
The participation of the conspirator may be direct
or indirect in the execution of the crime. Since
there was a prior agreement, mere presence at
scene of the crime, mere exercise of moral
ascendancy over the others will already bring
about criminal liability as a conspirator because
there was a prior agreement, there was a pre
conceived plan.
People vs. Carandang, Milan and Chua
All of them were charged of 2 counts of murder
and 1 count of frustrated murder. The only
participation of Milan was to close the door. It
was only Carandang who shot the 3 police
officers. Chua instructed Milan to finish the 3rd
police officer and Milan followed him.
SC: Although the participation of Milan was only
to close the door, Chua was only to order Milan to
shoot the 3rd police officer, such act of Chua
showed that he exercised moral ascendancy over
Milan. Therefore, since what is present here is a
prior agreement to kill the police officers, mere
exercise of moral ascendancy will already make
one a conspirator. It is not necessary that they
actually participate in the execution of the crime.
Thus, all of them are held criminally liable.
People v. Carandang, Milan & Chua, G.R. No.
175926, 6 July 2011
Facts: Three informations for 2 counts of murder
and 1 count of frustrated murder were filed in the
RTC of QC against Carandang, Milan & Chua, for
the killing of PO2 Alonzo, SPO2 Red, and for the
injuries inflicted against SPO1 Montecalvo.
Milan’s sister informed the police of a drug deal
which would take place in their house. The police,
including the victims Alonzo, Red and
Montecalvo, surrounded the house. They met at
the back door near Milan’s room. Seeing the door
of Milan’s room was open, the police tried to
enter. When they announced their identities as
policemen, Milan suddenly shut the door.
Alonzo and Red pushed the door open, causing it
to fall and propelling the two inside the room.
Alonzo shouted “walang gagalaw”. Suddenly,
gunshots rang, hitting Alonzo and Red who fell
one after the other. Montecalvo was still aiming at
the assailants when Carandang shot and hit him,
causing the former to fall. Another policeman
heard Chua instruct Milan: “sugurin mo na”. Milan
lunged at Montecalvo but the latter was able to
shoot and hit Milan. Montecalvo was then pulled
out of the house by another policeman.
The policemen Alonzo and Red were found dead
inside the house. They died due to gunshot
wounds.
Carandang, et al. claimed that they were just playing
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card games at Milan’s house when armed men
suddenly barged in and fired their weapons.
Further, paraffin tests on Chua yielded a negative
result, while Carandang’s tests showed a positive
result. Milan refused to undergo tests as he was
injured at the time.
The RTC ruled that they acted in conspiracy in the
commission of crimes charged, and found them
guilty of 2 counts of murder and 1 count of
frustrated murder. The CA affirmed with
modification the conviction. Hence, Milan and
Chua appealed to the SC.
Issue: Whether conspiracy was not proven due to
lack of direct evidence.
Ruling: Appeal DENIED.
To summarize, Milan's and Chua's arguments
focus on the lack of direct evidence showing that
they conspired with Carandang during the latter's
act of shooting the three victims. However, as we
have held in People v. Sumalpong, conspiracy may also
be proven by other means: xxx Proof of concerted
action before, during and after the crime, which demonstrates
their unity of design and objective, is sufficient.
In the case at bar, the conclusion that Milan and
Chua conspired with Carandang was established by
their acts (1) before Carandang shot the victims
(Milan's closing the door when the police officers
introduced themselves, allowing Carandang to wait
in ambush), and (2) after the shooting (Chua's
directive to Milan to attack SPO1 Montecalvo and
Milan's following such instruction). Contrary to the
suppositions of appellants, these facts are not
meant to prove that Chua is a principal by
inducement, or that Milan's act of attacking SPO1
Montecalvo was what made him a principal by
direct participation. Instead, these facts are
convincing circumstantial evidence of the unity of
purpose in the minds of the three. As
coconspirators, all three are considered principals
by direct participation.
Neither can the rapid turn of events be considered
to negate a finding of conspiracy. Unlike evident
premeditation, there is no requirement for
conspiracy to exist that there be a sufficient period
of time to elapse to afford full opportunity for
meditation and reflection. Instead, conspiracy
arises on the very moment the plotters agree,
expressly or impliedly, to commit the subject
felony.
People vs. Garchitorena
Direct proof is not necessary for one to become a
conspirator because conspiracy can be proven
from the acts done or performed prior, during or
subsequent to the commission of the crime.
People v. Garchitorena, Garcia & Pamplona,
G.R. No. 175605, 28 August 2009
Facts: An information for murder was filed in the
RTC of Binan against Garchitorena, Garcia and
Pamplona for the death of Mauro Biay.
Witness Dulce Biay was selling balut one evening.
Her brother Mauro, also a balut vendor, was
about seven arm’s length away from her when
he was called by accused Jessie Garcia. When
Mauro approached Jessie, the latter twisted the
hand of her brother behind his back and
Jessie’s companions- accused Garchitorena and
Pamplona – began stabbing her brother Mauro
repeatedly with a shiny bladed instrument. Joey
was at the right side of the victim and was
strangling Mauro from behind. Mauro was
struggling to free himself while being stabbed
by the three (3) accused until her brother
slumped face down on the ground. Arnold then
instructed his two co-accused to run away.
Pamplona denied the charge against him, claiming
that he was seated on a bench when Garchitorena
came along and stabbed Mauro. Garcia claimed
that conspiracy was not proven and at the time of
the incident he was on a bus on his way home from
work. Garchitorena claimed insanity, alleging that
he was using drugs and shabu for 2 years prior to
the incident.
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The RTC convicted them of murder, and the CA
affirmed the conviction.
Issue: Whether conspiracy was not proven.
Ruling: Appeal DENIED.
Conspiracy exists when two or more persons
come to an agreement concerning the
commission of a felony and decide to commit
it. Direct proof is not essential, for
conspiracy may be inferred from the acts
of the accused prior to, during or
subsequent to the incident. Such acts must
point to a joint purpose , interest concert of
action or community of interest. Hence, the
victim need not be actually hit by each of the
conspirators for the act of one of them is deemed the
act of all.
In this case, conspiracy was shown because
Garchitorena, et al. were together in performing
the concerted acts in pursuit of their common
objective . Garcia grabbed the victim’s hands
and twisted his arms; in turn, Pamplona,
together with Garchitorena, strangled him and
straddled him on the ground, then stabbed
him. The victim was trying to free himself
from them, but they were too strong. All means
through which the victim could escape were
blocked by them until he fell to the ground
and expired. Garchitorena, et al.s’ prior act of
waiting for the victim outside affirms the
existence of conspiracy, for it speaks of a
common design and purpose.
The aggravating circumstance of superior
strength should be appreciated against
Garchitorena, et al.. In the case at bar, the
victim certainly could not defend himself in
any way. The accused-appellants, armed with a
deadly weapon, immobilized the victim and
stabbed him successively using the same deadly
weapon.
All told, the trial court correctly convicted
Garchitorena, et al. of murder, considering the
qualifying circumstance of abuse of superior
strength [end].
Ex. A, B and C alighted in the house of X, they were
all armed with Armalites. They all went in front of
the door. A knocked at the door. When X opened
the door, B fired at X. X fell on the floor. C kicked
his body inside and closed the door. All of them
left still armed. Are they all criminally liable or
conspirators for the death of X? Are they
conspirators for the crime of murder?
Yes. It is evident here that there is a pre conceived
plan prior to the commission of the crime.
Although the only participation of A was to knock
at the door and the only participation of C was to
close the door, it was obvious, there was a pre
conceived plan. All of the, arrived at the same
time armed with Armalites. They went in front of
the door, one knocked, one fired, one closed the
door, left together still armed. All of these showed
that there was a pre conceived plan to kill X. As
such they are all liable as conspirators regardless
of the quantity and quality of their participation.
2. Implied or Inferred Conspiracy - deduced
from the mode and manner of committing the
crime, there is no pre conceived plan but the
offenders acted simultaneously in a synchronized
and coordinated manner, their acts
complimenting one another towards a common
criminal objective or design. They are all liable as
conspirators.
It may happen that the conspirators do not know
each other. Since the offenders acted in a
synchronized and coordinated manner, a
conspiracy was established instantly,
impulsively, at the spur of the moment.
Ex. X was trying to stab Y. Y evaded all the blows.
Z saw that X was having a hard time stabbing Y. Z
was an enemy of Y. So Z went at the back of Y and
held both hands of Y at the back and told X to stab
Y which X did.
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Is Z a conspirator of X?
Yes. An implied conspiracy was established,
instantly, impulsively, at the spur of the moment.
There was no pre conceived plan but the act of Z
of holding the hands of Y is a direct and positive
overt act showing that he has the same criminal
design as That of X which is to kill Y.
People vs.
In case of implied conspiracy, for one to be
considered as a conspirator, it is necessary that
the offender actually participates in the
commission of the crime. Mere presence at the
scene of the crime, mere approval, mere
acquiescence, mere knowledge of the commission
of the crime will not make one a conspirator
absent any active participation. Because the basis
is on the acts performed by the offender. Unlike a
preconceived plan there was a prior agreement,
therefore mere presence or exercise of moral
ascendancy will make one a conspirator. In
implied the conspiracy is established based on
the acts performed. Therefore, if you do not
perform an act, if you are merely present then you
cannot be held a conspirator.
Ex. X was trying to stab Y. When Z saw that X was
stabbing Y he shouted "sige tirahin mo pa, sa
kaliwa sa kanan..." X kept on stabbing Y.
Is Z a conspirator of X?
No. Absent any active participation, mere
approval, mere acquiescence, mere knowledge of
the commission of the crime will not make one a
conspirator in case of implied or inferred
conspiracy.
When conspiracy is established whether direct or
express, implied or inferred, the act of one is the
act of all. Therefore, all the perpetrators in the
crime will have one and the same penalty. The
same penalty will be imposed regardless of the
quantity and quality of the participation. The
moment conspiracy is established, it is
immaterial to determine who inflicted because all
of them will have the same penalty.
If however, conspiracy is not established, the
penalty will be individual in nature depending on
the act that they performed.
People vs. Bokingco
Bokingco killed Noli Pasion inside the apartment.
At the time that he was killing, Reynante was
inside the main house, he was asking the wife to
open the vault of the pawnshop. After killing the
husband, Bokingco called Reynante and said
"tara na, patay na siya!." They fled at the same
time. They were both charged for the crime of
murder. Convicted both of murder in the CA.
SC: there was no conspiracy between Bokingco
and Reynante in killing Noli. While one is killing
the victim the other was trying to commit another
crime. They did not act in a synchronized and
coordinated manner. There was no evidence that
there was a pre conceived plan because one was
committing another crime different from the
other.
They are one in escaping but not in the
commission of the crime. Since conspiracy was
not established, the most that is established is
that they planned to commit 2 crimes
simultaneously at the same time. But the charge
was only murder, there was no charge for
robbery. Therefore, Bokingco was convicted,
Reynante Col was acquitted of the crime of
murder. So absent any evidence of conspiracy, the
liability is invidual.
People v. Bokingco & Col, G.R. No. 187536, 10
August 2011
Facts: Appellants Michael Bokingco and
Reynante Col were charged with murder before
the RTC of Angeles City for the death of Noli
Payson.
Noli owned a pawnshop which formed a part of
his house. He also maintained 2 rows of apartment
units at the back of his house. His brother in law
Vitalico, Noli’s was leasing one of the apartment
units. Around 1 AM Vitalico heard commotions in
Aparment 3, one of the other units. He peered
inside and saw Bokingco hitting something on the
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floor. Bokingco saw Vitalico and attacked him.
Vitalico was hit but was later able to push
Bokingco away, who was later subdued. Vitalico
returned to his house, where he was informed that
Noli was found dead in Apt. 3.
At the time of the incident Elsa, Noli’s wife, heard
banging sounds and his husband’s moans. She
went downstairs from their room, but before
reaching the kitchen she was attacked by Col, who
then instructed her to open the pawnshop vault.
Elsa told him that she did not have the
combination lock, so Col dragged her towards the
back door. Before they reached the door, Elsa saw
Bokingco open the door and tell Col “tara, patay na
siya”. Col immediately freed her and ran away with
Bokingco.
The RTC convicted Bokingco and Col with
murder. The CA affirmed the conviction, finding
that they are conspirators in the commission of the
crime.
Issue: Whether Col is guilty as a co-conspirator.
Ruling: Appeal GRANTED. Col is
ACQUITTED due to reasonable doubt.
In order to convict Col as a principal by direct
participation in the case before us, it is necessary
that conspiracy between him and Bokingco be
proved. Conspiracy exists when two or more
persons come to an agreement to commit an
unlawful act. It may be inferred from the conduct
of the accused before, during, and after the
commission of the crime. Conspiracy may be
deduced from the mode and manner in which the
offense was perpetrated or inferred from the acts
of the accused evincing a joint or common purpose
and design, concerted action, and community of
interest. Unity of purpose and unity in the
execution of the unlawful objective are
essential to establish the existence of
conspiracy.
As a rule, conspiracy must be established with the
same quantum of proof as the crime itself and must
be shown as clearly as the commission of the
crime.
The finding of conspiracy was premised on Elsa's
testimony that Bokingco and Col fled together
after killing her husband and the extrajudicial
confession of Bokingco.
Nobody witnessed the commencement of the
attack. Col was not seen at the apartment where
Pasion was being attacked by Bokingco. In fact, he
was at Elsa's house and allegedly ordering her to
open the pawnshop vault.
Based on these acts alone, it cannot be logically
inferred that Col conspired with Bokingco in
killing Pasion. At the most, Col's actuations can be
equated to attempted robbery, which was actually
the initial information filed against Bokingco and
Col before it was amended, on motion of the
prosecution, for murder.
Elsa testified that she heard Bokingco call out
to Col that Pasion had been killed and that
they had to leave the place. This does not
prove that they acted in concert towards the
consummation of the crime. It only proves, at
best, that there were two crimes committed
simultaneously and they were united in their
efforts to escape from the crimes they
separately committed.
Their acts did not reveal a unity of purpose that is
to kill Pasion. Bokingco had already killed Pasion
even before he sought Col. Their moves were not
coordinated because while Bokingco was killing
Pasion because of his pent-up anger, Col was
attempting to rob the pawnshop [end].
People v. Castillo & Padayhag, G.R. No.
132895, 10 March 2004
Facts: Appellants Elizabeth Castillo and
Evangeline Padayhag, as well as Wenceslao, were
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charged with kidnapping and serious illegal
detention of a 5-year old boy, Rocky Cebrero.
Castillo was once a househelper at the Cebrero
household, and one of her tasks was to take care of
the Sps. Castillo’s son, Rocky. One day Castillo
called Padayhag, telling her that her boyfriend was
sick. Castillo fetched Padayhag, but they did not
visit Padayhag’s boyfriend. Instead, they went to a
playground. Then, Castillo instructed Padayhag to
fetch Rocky from his house, telling Padayhag that
she missed the boy.
Padayhag fetched Rocky as instructed, and brought
the boy to Castillo. The three eventually went to
the house of Castillo’s sister, Wenceslao.
Afterwards, Padayhag left Wenceslao’s house.
Castillo on the other hand called Rocky’s father
and demanded ransom in exchange for Rocky’s
release.
The RTC of Parañaque convicted Castillo and
Padayhag of kidnapping and serious illegal
detention.
Issue: Whether Castillo and Padayhag conspired
to kidnap Rocky for ransom.
Ruling: RTC decision AFFIRMED WITH
MODIFICATION: Padayhag is
ACQUITTED.
Our review of the evidence on record shows that
the prosecution failed to prove Padayhag’s guilt
beyond reasonable doubt.
Padayhag’s sole involvement in this entire episode
is her act of fetching Rocky and bringing him to
where Castillo was waiting for them. Padayhag
then went strolling with the two, went to the house
of Castillo’s sister together with Castillo and
Rocky, and then later left the house. From this fact
alone, the prosecution would have us rule that
Padayhag acted in conspiracy with Castillo. The
prosecution contends that without Padayhag’s
help, Castillo could not have abducted Rocky.
We are not persuaded. There must be positive and
conclusive evidence that Padayhag acted in concert
with Castillo to commit the same criminal act. To
hold an accused guilty as a coprincipal by
conspiracy, there must be a sufficient and
unbroken chain of events that directly and
definitely links the accused to the commission of
the crime without any space for baseless
suppositions or frenzied theories to filter through.
Indeed, conspiracy must be proven as clearly as the
commission of the crime itself.
Conspiracy is established by the presence of
two factors:
1) singularity of intent; and
2) unity in execution of an unlawful
objective.
The two must concur.
Performance of an act that contributes to the
goal of another is not enough. The act must be
motivated by the same unlawful intent. Neither
joint nor simultaneous action is per se sufficient
indicium of conspiracy, unless proved to have been
motivated by a common design.
Padayhag’s act of fetching Rocky is not conclusive
proof of her complicity with Castillo’s plan, a plan
Padayhag did not even know. Both appellants
testified that Padayhag met Castillo only because
Castillo told Padayhag that Padayhag’s boyfriend
was sick. It was precisely on the pretext that they
were to visit Padayhag’s boyfriend that the two
met. When they met, Padayhag realized that
Castillo had deceived her. xxx Padayhag’s
confusion in the way she answered the questions
propounded to her only highlights the fact that she
was not aware of Castillo’s plans and was
vulnerable to the latter’s manipulation. It is clear
that she acted with the full belief that Castillo was
doing nothing wrong. Whatever moved her to do
what Castillo asked of her is up for speculation.
What matters is that her motivation in fetching
Rocky was not to kidnap the boy. To impose
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criminal liability, the law requires that there be
intentional participation in the criminal act, not the
unwitting cooperation of a deceived individual.
The failure to prove Padayhag’s involvement as a
conspirator reveals how tenuous the evidence is
linking her to the crime. Padayhag’s culpability
hinges on how her act of fetching Rocky and
bringing him to Castillo formed part of a concerted
effort to kidnap the child. The act of fetching the
boy, by itself, does not constitute a criminal
offense. By itself, it is not even sufficient to make
her an accomplice. For a person to be considered
an accomplice there must be a community of
design, that is, knowing the criminal design of the
principal, the co-accused concurs with the latter.
Mere commission of an act which aids the
perpetrator is not enough.
There was therefore a need for clear and
convincing proof that this single act was
committed to kidnap the child. The prosecution
failed to prove this. Padayhag explained that
Castillo coaxed her into fetching Rocky through
another deception and by playing on her feelings
of sympathy and friendship [end].
People v. Feliciano, et al., G.R. No. 196735, 5
May 2014
Facts: Seven members of the Sigma Rho fraternity
were eating lunch in UP Diliman when they were
suddenly attacked by several masked men who
were armed with baseball bats and lead pipes.
Some sustained injuries which required
hospitalization, but one of them-Venturina-died
due to traumatic head injuries.
Informations for murder for Venturina’s death, as
well as the attempted murder and frustrated
murder of some Sigma Rho members were filed in
the RTC of QC against several members of
Scintilla Juris fraternity, namely Feliciano, Alvir,
Soliva, Zingapan (appellants Feliciano, et al.) and
several others.
The RTC convicted Feliciano, et al. of murder and
attempted murder, and acquitted the other co-
accused, holding that Feliciano, et al. were
positively identified by witnesses as the attackers.
The CA affirmed the RTC ruling, but modified
their criminal liabilities.
Issue: Whether Feliciano, et al. are not liable for
attempted murder for some of the victims.
Ruling: Appeal DENIED.
In the decision of the trial court, all of the accused-
appellants were found guilty of the murder of
Venturina and the attempted murder of Natalicio,
Mangrobang, Jr. Lachica, Fortes, and Gaston, Jr.
The appellate court, however, modified their
liabilities and found that the Feliciano, et al.
were guilty of attempted murder only against
Natalicio and Fortes, and not against
Mangrobang, Lachica, and Gaston.
It is the appellate court’s reasoning that because
Lachica and Mangrobang “were no longer chased
by the attackers,” it concluded that Feliciano, et al.
“voluntary desisted from pursuing them and from
inflicting harm to them, which shows that they did
not have the intent to do more than to make them
suffer pain by slightly injuring them.” It also
pointed out that the wound inflicted on Gaston
“was too shallow to have been done with an intent
to kill.” Thus, it concluded that the Feliciano, et al.
would have been guilty only of slight physical
injuries.
This is erroneous.
It should be remembered that the trial court found
that there was conspiracy among Feliciano, et al.
and the appellate court sustained this finding.
Conspiracy, once proven, has the effect of
attaching liability to all of the accused, regardless of
their degree of participation, thus:
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Once an express or implied conspiracy is
proved, all of the conspirators are liable as co-
principals regardless of the extent and
character of their respective active
participation in the commission of the crime
or crimes perpetrated in furtherance of the
conspiracy because in contemplation of law
the act of one is the act of all. xxx it is impossible
to graduate the separate liability of each
conspirator without taking into consideration the
close and inseparable relation of each of them with
the criminal act, for the commission of which they
all acted by common agreement. The crime must
therefore in view of the solidarity of the act and
intent which existed between the accused, be
regarded as the act of the band or party created by
them, and they are all equally responsible.
Verily, the moment it is established that the
malefactors conspired and confederated in the
commission of the felony proved, collective
liability of the accused conspirators attaches
by reason of the conspiracy, and the court shall
not speculate nor even investigate as to the
actual degree of participation of each of the
perpetrators present at the scene of the crime.
The liabilities of the Feliciano, et al. in this case
arose from a single incident wherein the accused-
appellants were armed with baseball bats and lead
pipes, all in agreement to do the highest amount of
damage possible to the victims. Some were able to
run away and take cover, but the others would fall
prey at the hands of their attackers. The intent to
kill was already present at the moment of attack
and that intent was shared by Feliciano, et al. alike
when the presence of conspiracy was proven. It is,
therefore, immaterial to distinguish between the
seriousness of the injuries suffered by the victims
to determine the respective liabilities of their
attackers. What is relevant is only as to whether the
death occurs as a result of that intent to kill and
whether there are qualifying, aggravating or
mitigating circumstances that can be appreciated.
The appellate court, therefore, erred in finding the
accused-appellants guilty only of slight physical
injuries. It would be illogical to presume that
despite the swiftness and suddenness of the attack,
the attackers intended to kill only Venturina,
Natalicio, and Fortes, and only intended to injure
Lachica, Mangrobang, and Gaston. Since the intent
to kill was evident from the moment Feliciano, et
al. took their first swing, all of them were liable for
that intent to kill.
For this reason, the accused-appellants should
be liable for the murder of Venturina and the
attempted murder of Natalicio, Mangrobang,
Jr., Lachica, Fortes, and Gaston, Jr [end].
People v. Dadao, et al., G.R. No. 201860, 22
January 2014
Facts: Appellants Dadao, Sulindao, Eddie
(deceased) and Alfemio Malgosi were charged with
Murder in the RTC of Manolo Fortich, Bukidnon,
for conspiring to kill Pionio Yacapin.
The prosecution alleged that the Malgosis held
firearms while Dadao and Sulindao had bolos, and
they shot to death Yacapin in the latter’s house.
The police found empty Garand shells at the scene
of the crime. On the other hand, Dadao et al.
alleged that paraffin tests yielded negative results
for all four of them. They also alleged that they
were at different places at the time of the shooting.
The RTC found them guilty of murder, prompting
them to appeal. During the pendency of the
appeal, Eddie died. The CA affirmed the RTC
ruling.
Issue: Whether the negative results of the paraffin
test is a ground for acquittal for Dadao, et al.
Ruling: Appeal DENIED.
With regard to Dadao, et al.’s assertion that the
negative result of the paraffin tests that were
conducted on their persons should be considered
as sufficient ground for acquittal, we can only
declare that such a statement is misguided
considering that it has been established in
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jurisprudence that a paraffin test is not conclusive
proof that a person has not fired a gun. It should
also be noted that, according to the
prosecution, only Eddie and Alfemio Malogsi
held firearms which were used in the fatal
shooting of Pionio Yacapin while Marcelino
Dadao and Antonio Sulindao purportedly held
bolos. Thus, it does not come as a surprise that the
latter two tested negative for powder burns
because they were never accused of having fired
any gun. Nevertheless, the evidence on record
has established that all four accused shared a
community of criminal design. By their
concerted action, it is evident that they conspired
with one another to murder Pionio Yacapin and
should each suffer the same criminal liability
attached to the aforementioned criminal act
regardless of who fired the weapon which
delivered the fatal wounds that ended the life of the
victim.
In People v. Nelmida, we elaborated on the principle
of criminal conspiracy and its ramifications in this
manner:
There is conspiracy when two or more persons
come to an agreement concerning the commission
of a felony and then decide to commit it. It arises
on the very instant the plotters agree, expressly or
impliedly, to commit the felony and forthwith
decide to pursue it. Once established, each and
every one of the conspirators is made
criminally liable for the crime actually
committed by any one of them. In the absence
of any direct proof, the agreement to commit a
crime may be deduced from the mode and manner
of the commission of the offense or inferred from
acts that point to a joint purpose and design,
concerted action, and community of interest. As
such, it does not matter who inflicted the
mortal wound, as each of the actors incurs the
same criminal liability, because the act of one
is the act of all (Citation and emphasis
omitted.)[end].
People v. Octa, G.R. No. 195196, 13 July 2015
Facts: An information was filed in the RTC of
Manila, charging Estanly Octa of kidnaping for
ransom.
Johnny Corpus and Mike Adrian Batuigas were
kidnapped in Sampaloc, Manila. The kidnappers
demanded ransom money from Johnny’s wife and
Mike Adrian’s sister, Ana Marie Corpuz initially
for P 20 Million, but was reduced to P 538,000.
Five days after Johnny and Mike were kidnapped,
the kidnappers set up how the ransom money
would be delivered. Ana Marie was instructed to
go to the drop-off point where she would see a
man wearing a red cap, to which she would deliver
the money. Ana Marie saw the man, who asked for
the money. After contacting the kidnappers, Ana
Marie gave the money. A day later, Johnny and
Mike Adrian were released.
A month later, the police arrested Octa in
connection with another kidnap for ransom
incident. Ana Marie identified Octa from the
police line-up as the man who received the ransom
money from her. Consequently, this case was filed
against Octa.
Octa denied the kidnapping, claiming that at the
time of the kidnapping he was in Camarines Norte.
Moreover, he himself was kidnapped and brought
to Camp Crame, and tortured to admit the charges
filed against him.
The RTC found him guilty as charged, giving
credence to Ana Marie’s positive identification of
him as the man who received the ransom money,
and his the act of receiving ransom money was
sufficient evidence to establish Octa’s
conspiratorial act in the kidnapping for ransom of
the victims. The CA affirmed the RTC.
Issue: Whether the RTC erred in finding Octa a
conspirator of the crime charged.
Ruling: Appeal DENIED.
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Octa also claims that he cannot be considered as a
conspirator to the kidnapping in the absence of
concrete proof that he actually participated in the
execution of the essential elements of the crime by
overt acts indispensable to its accomplishment. His
receipt of the ransom money transpired only after
the kidnapping had been consummated and was
not an essential element of the crime.
We disagree.
On point is our dissertation in People v. Bautista, to
wit: “Conspiracy exists when two or more persons
come to an agreement concerning the commission
of a felony and decide to commit it. Where all the
accused acted in concert at the time of the
commission of the offense, and it is shown by such
acts that they had the same purpose or common
design and were united in its execution, conspiracy
is sufficiently established. It must be shown that all
participants performed specific acts with such
closeness and coordination as to indicate a
common purpose or design to commit the felony.
Evidently, to hold an accused guilty as a co-
principal by reason of conspiracy, he must be
shown to have performed an overt act in
pursuance or furtherance of the complicity.
There must be intentional participation in the
transaction with a view to the furtherance of the
common design and purpose.
Taking these facts in conjunction with the
testimony of Dexter, who testified that accused-
appellant was the one who received the ransom
money x x x then the commonality of purpose of
the acts of accused-appellant together with the
other accused can no longer be denied. Such acts
have the common design or purpose to commit the
felony of kidnapping for ransom.
Thus, accused-appellants’ argument that he is a
mere accomplice must fail. He is liable as a
principal for being a co-conspirator in the crime of
Kidnapping for Ransom.”
Moreover, the CA is correct in its observation that
at the time Octa received the ransom money, the
crime of kidnapping was still continuing, since
both victims were still being illegally detained by
the kidnappers. While his receipt of the ransom
money was not a material element of the
crime, it was nevertheless part of the grand
plan and was in fact the main reason for
kidnapping the victims. Ransom is money, price
or consideration paid or demanded for the
redemption of a captured person or persons; or
payment that releases from captivity. Without
ransom money, the freedom of the detained
victims cannot be achieved [end].
Conspiracy of Silence and Inaction
Jaca v. People & the Sandiganbayan, G.R.
Nos. 166967, 166974 & 167167, 28 January 2013
Facts: Petitioners are officials of the Cebu City
Government: Gaviola was the City Administrator;
Cesa was the City Treasurer; Bacasmas was the
Chief Cashier of the Cash Division, which is under
the Office of the City Treasurer, and Jaca was the
City Accountant.
A surprise audit by the City Auditor revealed that
one of the disbursing officers, Badana, incurred a
cash shortage of P18,527,137.19. The audit team
found that the failure of Jaca, et al. to observe the
provisions of PD 1445 and RA 7160 and the rules
and regulations governing the grant, utilization and
liquidation of cash advances under COA circulars
facilitated, promoted if not encouraged the
commission of malversation of public funds.
The Ombudsman charged before the
Sandiganbayan Jaca, et al. and Bascamas with
violation of Sec. 3(e), RA 3019. The Sandiganbayan
found them guilty as charged.
In their petition to the SC, Jaca, et al. invoked good
faith in affixing their signatures in to the
disbursement vouchers despite the lack of
supporting documents and the purpose of the
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disbursement. Moreover, they argue that the
information is fatally defective as “evident bad
faith” and “gross inexcusable negligence” are
several modes of committing the crime, more so
considering the allegation of conspiracy, which
presupposes intent and absence of negligence.
Thus the complaint effectively charged no offense.
Issue: Whether gross and inexcusable negligence
negates conspiracy.
Ruling: Petitions DENIED.
In Sistoza v. Desierto, the Court already intimated on
the possibility of committing a violation of Section
3(e) of RA No. 3019 through gross and inexcusable
negligence, and of incurring collective criminal
responsibility through a conspiracy: “As we have
consistently held, evidence of guilt must be
premised upon a more knowing, personal and
deliberate participation of each individual who is
charged with others as part of a conspiracy.
Furthermore, even if the conspiracy were one of
silence and inaction arising from gross inexcusable
negligence, it is nonetheless essential to prove that
the breach of duty borders on malice and is
characterized by flagrant, palpable and willful
indifference to consequences insofar as other
persons may be affected.”
As earlier discussed, considering that the gravity of
negligence required by law for a violation of
Section 3(e) of RA No. 3019 to exist falls short of
the degree of bad faith or partiality to violate the
same provision, a conspiracy of silence and
inaction arising from gross inexcusable
negligence would almost always be inferred
only from the surrounding circumstances and
the parties' acts or omissions that, taken
together, indicate a common understanding
and concurrence of sentiments respecting the
commission of the offense. The duties and
responsibilities that the occupancy of a public
office carry and the degree of relationship of
interdependence of the different offices
involved here determine the existence of
conspiracy where gross inexcusable
negligence was the mode or commission of the
offense.
For emphasis, Jaca, et al. are all heads or their
respective offices that perform interdependent
functions in the processing of cash advances. The
petitioners' attitude of buck-passing in the face of
the irregularities in the voucher (and the absence of
supporting documents), as established by the
prosecution, and their indifference to their
individual and collective duties to ensure that laws
and regulations are observed in the disbursement
of the funds of the local government of Cebu can
only lead to a finding of conspiracy of silence and
inaction, contemplated in Sistoza. The
Sandiganbayan correctly observed that the
separate acts or omissions of all the accused in
the present case contributed in the end result
of defrauding the government. Without
anyone of these acts or omissions, the end
result would not have been achieved. Suffice it
to say that since each of the accused contributed to
attain the end goal, it can be concluded that their
acts, taken collectively, satisfactorily prove the
existence of conspiracy among them [end].
TWO KINDS OF MULTIPLE CONSPIRACY
(Fernan, Jr. & Torrevillas v. People)
1. Wheel or Circle Conspiracy - when a single
person or group of persons known as a hub,
deals individually with another person or
group of persons known as the spokes.
2. Chain Conspiracy - usually involving the
distribution of narcotics or other contraband,
in which there is successive communication
and cooperation in much the same way as
with legitimate business operations between
manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and
consumer.
Fernan vs. People [P86 Million Highway Scam]
SC said what is present is a wheel or circle
conspiracy. 4 persons headed by the chief
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accountant acted as the hub. They enticed all
other 36 employees of the DPWH to be one with
them in committing fraud against the
government. They falsified LAA's and would
negotiate it at a certain percentage, then one of
them would compute the general voucher, funds
then will be issued as if materials will be
delivered for the construction. Fernan and
Torevillas were civil engineers of the DPWH, they
signed tally sheets, saying that there were
deliveries when in fact these were ghost
deliveries. No actual deliveries of the materials.
Conspiracy also applies in case of violations of
special penal laws.
There are some special penal laws which expressly
provide that perpetrators can be held liable when
they acted in conspiracy.
Section 26 of RA 9165
Section 26. Attempt or Conspiracy. – Any attempt or
conspiracy to commit the following unlawful acts shall
be penalized by the same penalty prescribed for the
commission of the same as provided under this Act:
(a) Importation of any dangerous drug and/or
controlled precursor and essential chemical;
(b) Sale, trading, administration, dispensation,
delivery, distribution and transportation of any
dangerous drug and/or controlled precursor and
essential chemical;
(c) Maintenance of a den, dive or resort where any
dangerous drug is used in any form;
(d) Manufacture of any dangerous drug and/or
controlled precursor and essential chemical; and
(e) Cultivation or culture of plants which are sources of
dangerous drugs. (R.A. 9165)
As held in the case of People vs Morilla, it is the
law itself that provides that there is mere
conspiracy in the act of transporting dangerous
drugs. Among the acts specified in RA 9165
wherein conspiracy would lie is in case of
transportation of dangerous drugs.
People v. Morilla, G.R. No. 189833, 5 February
2014
Facts: Javier Morilla, Willie Yang, Ruel Dequilla
and Mayor of Mun. of Panulikan, Quezon Ronnie
Mitra, were charged with the crime of
transportation of illegal drugs in the RTC of QC.
A Starex van driven by Mayor Mitra and an
ambulance driven by Morilla were travelling
together when they were intercepted at a
checkpoint in Real, Quezon. The police
discovered that they were carrying sacs of shabu,
weighing a total of 503 kgs.
Mitra and Morilla claimed that they did not know
that the contents of the sacks were shabu. Mitra was
merely requested to carry the sacs, while Morilla
thought the contents were wooden tiles and
electronic spare parts.
The RTC convicted Morilla and Mitra, dismissing
the two’s defenses. The RTC’s ruling of conviction
was based on the testimony of the accused. The
Starex was able to pass by the checkpoint but the
ambulance was stopped. Morilla clamed he was
with Mayor Mitra in an attempt to persuade the
police to let him pass. When the latter discovered
shabu, they chased Mayor Mitra, who got caught.
The police also discovered shabu inside the Starex.
Yang and Dequila were acquitted, as their mere
presence as passengers were inadequate to prove
that they were also conspirators of Mitra and
Morilla.
The CA upheld the RTC’s finding of conspiracy,
holding that there was singularity of intent to
transport sacs of shabu when Morilla agreed to
drive the ambulance together with Mitra who
drove the lead vehicle.
Issue: Whether conspiracy to transport shabu was
proven.
Ruling:
Morilla argues that the mere act of driving the
ambulance on the date he was apprehended is not
sufficient to prove that he was part of a syndicated
group involved in the illegal transportation of
dangerous drugs.
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This argument is misplaced.
In conspiracy, it need not be shown that the parties
actually came together and agreed in express terms
to enter into and pursue a common design. The
assent of the minds may be and, from the secrecy
of the crime, usually inferred from proof of facts
and circumstances which, taken together, indicate
that they are parts of some complete whole. In this
case, the totality of the factual circumstances
leads to a conclusion that Morilla conspired
with Mayor Mitra in a common desire to
transport the dangerous drugs. Both vehicles
loaded with several sacks of dangerous drugs, were
on convoy from Quezon to Manila. Mayor Mitra
was able to drive through the checkpoint set up by
the police operatives. When it was Morilla’s turn to
pass through the checkpoint, he was requested to
open the rear door for a routinary check. Noticing
white granules scattered on the floor, the police
officers requested Morilla to open the sacks. If
indeed he was not involved in conspiracy with
Mayor Mitra, he would not have told the police
officers that he was with the mayor.
His insistence that he was without any knowledge
of the contents of the sacks and he just obeyed the
instruction of his immediate superior Mayor Mitra
in driving the said vehicle likewise bears no merit.
Here, Morilla and Mayor Mitra were caught in
flagrante delicto in the act of transporting the
dangerous drugs on board their vehicles.
“Transport” as used under the Dangerous Drugs
Act means “to carry or convey from one place to
another.” It was well established during trial that
Morilla was driving the ambulance following the
lead of Mayor Mitra, who was driving a Starex van
going to Manila. The very act of transporting
methamphetamine hydrochloride is malum
prohibitum since it is punished as an offense
under a special law. The fact of transportation of
the sacks containing dangerous drugs need not be
accompanied by proof of criminal intent, motive
or knowledge [end].
Go-Tan v. Sps. Tan, G.R. No. 168852, 30
September 2008
The principle of conspiracy may be applied to
RA 9262
Facts: Petitioner Sharica Go-Tan filed in the RTC
of QC a petition with prayer for the issuance of a
Temporary Protection Order (TPO) against her
spouse Steven and her parents-in-law, respondents
spouses Perfecto and Juanita Tan. Go-Tan alleged
that Steven in conspiracy with his parents
conspired to cause verbal, psychological and
economic abuses against her, in violation of Sec. 5,
RA 9262. The RTC granted the prayer and issued
the TPO.
The Sps. Tan opposed the issuance, contending
that the RTC lacked jurisdiction over them on the
grounds that, as parents in law, they were not
covered by RA 9262. The RTC agreed and
dismissed the case against the Sps. Tan.
Issue: Whether the principle of conspiracy may be
applied to violations of RA 9262.
Ruling: Petition GRANTED.
While [Sec. 3 of RA 9262 which defines violence
against women and children] provides that the
offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application of
the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly
provides for the suppletory application of the RPC.
Hence, legal principles developed from the Penal
Code may be applied in a supplementary capacity
to crimes punished under special laws, such as R.A.
No. 9262, in which the special law is silent on a
particular matter.
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Parenthetically, Article 10 of the RPC provides that
the RPC shall be supplementary to special penal
laws, unless the latter should specially provide the
contrary. With more reason, therefore, the
principle of conspiracy under Article 8 of the RPC
may be applied suppletorily to R.A. No. 9262
because of the express provision of Section 47 that
the RPC shall be supplementary to said law.
Thus, general provisions of the RPC, which by
their nature, are necessarily applicable, may be
applied suppletorily.
Thus, the principle of conspiracy may be applied
to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the
act of one is the act of all the conspirators, and the
precise extent or modality of participation of each
of them becomes secondary, since all the
conspirators are principals.
It must be further noted that Section 5 of R.A. No.
9262 expressly recognizes that the acts of violence
against women and their children may be
committed by an offender through another. Xxx
In addition, the protection order that may be issued
for the purpose of preventing further acts of
violence against the woman or her child may
include individuals other than the offending
husband [end].
Art. 9. Grave felonies, less grave felonies and light
felonies. — Grave felonies are those to which the
law attaches the capital punishment or penalties
which in any of their periods are afflictive, in
accordance with Art. 25 of this Code.
Less grave felonies are those which the law
punishes with penalties which in their maximum
period are correctional, in accordance with the
above-mentioned Art..
Light felonies are those infractions of law
for the commission of which a penalty of arrest
menor or a fine not exceeding 200 pesos or both;
is provided.
3 kinds of felonies according to severity
1. Grave felonies
2. Less grave felonies
3. Light felonies
Art. 10. Offenses not subject to the provisions of
this Code. — Offenses which are or in the future
may be punishable under special laws are not
subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the
latter should specially provide the contrary.
Ex. What if a person convicted of a violation of a
SPL? A issued a check to B for payment of an
obligation. B deposited but the check bounced.
Notice of dishonor was sent. After the trial on the
merits, A was found guilty of the violation of BP
22 beyond reasonable doubt. Fine and payment of
the value of the check. The court said in case of
non-payment of the fine, the said convict shall
suffer subsidiary imprisonment.
Is the Judge correct? Can a person who violated a
SPL and was imposed with fine be made to suffer
subsidiary imprisonment in case of non-payment
of fine?
Subsidiary imprisonment is under Art. 39 of the
RPC. Can you apply the RPC to violations of SPL?
Yes because of Art. 10. As a rule, the RPC shall
apply suppletorily or supplementarily to the
provisions of SPL unless the SPL provides
otherwise.
Example of "unless"
Sec. 98 of RA 9165. It is expressly provided that
the provisions of the RPC shall not apply to the
violations RA 9165 or the 2002 Comprehensive
Dangerous Drugs Act. The law uses the word
shall.
XPN: If the offender is a minor. In that case if the
minor is penalized with life imprisonment to
death, it will be considered as reclusion perpetua
to death and the nomenclature of the penalties in
the RPC will now be applied.
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CIRCUMSTANCES WHICH AFFECT THE
LIABILITY OF THE OFFENDER
1. Justifying circumstances
2. Exempting circumstances
3. Mitigating Circumstances
4. Aggravating Circumstances
Art. 11. Justifying circumstances. — The
following do not incur any criminal liability:
1. Anyone who acts in defense of his person or
rights, provided that the following
circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means
employed to prevent or repel it.
Third. Lack of sufficient provocation on the
part of the person defending himself.
2. Anyone who acts in defense of the person or
rights of his spouse, ascendants, descendants,
or legitimate, natural or adopted brothers or
sisters, or his relatives by affinity in the same
degrees and those consanguinity within the
fourth civil degree, provided that the first and
second requisites prescribed in the next
preceding circumstance are present, and the
further requisite, in case the revocation was
given by the person attacked, that the one
making defense had no part therein.
3. Anyone who acts in defense of the person or
rights of a stranger, provided that the first
and second requisites mentioned in the first
circumstance of this Art. are present and that
the person defending be not induced by
revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or
injury, does not act which causes damage to
another, provided that the following
requisites are present;
First. That the evil sought to be avoided
actually exists;
Second. That the injury feared be greater than
that done to avoid it;
Third. That there be no other practical and
less harmful means of preventing it.
5. Any person who acts in the fulfillment of a
duty or in the lawful exercise of a right or
office.
6. Any person who acts in obedience to an order
issued by a superior for some lawful purpose.
JUSTIFYING CIRCUMSTANCES
Infractions wherein the offender is said to have
acted within the bounds of law. He has not yet
transgressed the law. Therefore there is no crime
committed, there is no criminal, there is no
criminal liability, there is no civil liability.
The moment the offender or the accused invokes
any of the acts amounting to justifying
circumstance, he is in effect admitting the
commission of the crime. But he wanted to evade
criminal liability by invoking justifying
circumstances. Therefore in justifying
circumstance it is both an admission to the
commission of the crime and an avoidance of
criminal liability.
Ex.
A killed B. A case of homicide was filed against A.
A pleaded not guilty during the arraignment.
During the pre-trial, the counsel of A invoked self-
defense. The moment the counsel said that their
defense is self-defense, a kind of justifying
circumstance, the procedure in trial would be
inverted.
As a rule it is the prosecution that must first
present evidence, it is only after the prosecution
has presented evidence that the defense would
present evidence.
If however the defense invoke[s] any of the
justifying circumstances, the trial will be
inverted. It is the defense that must first present
evidence. Because he in effect admits the
commission of the crime. He only wanted to avoid
liability by saying that his act was justif[ied].
Therefore the burden of evidence is upon the
defense to prove all the elements, all the
requisites of the justifying circumstance that he is
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invoking.
If the defense failed to prove the evidence or
requisites of justifying circumstance that he is
invoking, that will amount to conviction because
he already admitted to the commission of the
crime.
1. Self-defense [SD]
Legal Maxim on self-defense: "Stand ground
when in right."
He is not required by law to retreat when the
assailant is close approaching, otherwise, he would
run the risk of being stabbed or shot at the back.
SD does not only include defense of one's life. It
also includes defense of one's honor or chastity,
defense of one's property coupled with an attack
on the person entrusted with the said property. It
is an encompassing term.
Elements of SD:
1.Unlawful Aggression - must come from the
victim. The person attacked by the person
defending himself.
Aggression is said to be unlawful or present if
the attack is material, actual and places the life
of the accused in imminent and immediate
danger. It must not only be a threat. It must be
present, about to happen.
Elements of unlawful aggression (People v.
Fontanilla): (note put in box)
(a) There must be a physical or material attack
or assault;
(b) The attack or assault must be actual or at
least imminent.
(c) the attack or assault must be unlawful.
The Supreme Court also said that there are two
kinds of unlawful aggression.
(a) Actual or Material unlawful aggression- the
attack is by use of physical force or with the use
of a weapon;
(b) Imminent unlawful aggression- the attack is
impending, at the point of happening.
People v. Fontanilla, G.R. No. 177749, 25
January 2012
Facts: An information was filed before the RTC
of La Union, charging the accused-appellant
Alfonso Fontanilla of murder. The prosecution
alleged that one evening the victim Jose Olais was
walking along the road when suddenly Fontanilla
struck him in the head with a piece of wood. Olais
fell face down to the ground, but Fontanilla hit him
again in the head with a piece of stone. The latter
stopped only when the sons-in-law of Olais
shouted at him, causing Fontanilla to run away.
Olais was rushed to the hospital but was declared
dead on arrival.
On the other hand, Fontanilla declared self-
defense. He said that on the night of the incident
Fontanilla was standing on the road near his house
when Olais, who appeared to be drunk, boxed him
in the stomach. Despite talking to Olais nicely, the
latter continued attacking Fontanilla; thus
Fontanilla was forced to hit Olais in the head with
a stone.
The RTC rejected Fontanilla’s claim of self-
defense and declared him guilty as charged. The
CA affirmed the conviction, as he was unable to
establish unlawful aggression.
Issue: Whether the RTC and CA erred in ignoring
Fontanilla’s claim of self-defense.
Ruling: CA Decision AFFIRMED.
Fontanilla pleaded self-defense. In order for self-
defense to be appreciated, he had to prove by clear
and convincing evidence the following elements:
(a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed to
prevent or repel it; and (c) lack of sufficient
provocation on the part of the person defending
himself. Unlawful aggression is the indispensable
element of self-defense, for if no unlawful
aggression attributed to the victim is established,
self-defense is unavailing, for there is nothing to
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repel. The character of the element of unlawful
aggression is aptly explained as follows:
Unlawful aggression on the part of the victim is the
primordial element of the justifying circumstance
of self-defense. Without unlawful aggression, there
can be no justified killing in defense of oneself. The
test for the presence of unlawful aggression under
the circumstances is whether the aggression from
the victim put in real peril the life or personal safety
of the person defending himself; the peril must not
be an imagined or imaginary threat. Accordingly,
the accused must establish the concurrence of
three elements of unlawful aggression, namely:
(a) there must be a physical or material attack
or assault;
(b) the attack or assault must be actual, or, at
least, imminent; and
(c) the attack or assault must be unlawful.
Unlawful aggression is of two kinds:
(a) actual or material unlawful aggression; and
(b) imminent unlawful aggression.
Actual or material unlawful aggression means
an attack with physical force or with a weapon,
an offensive act that positively determines the
intent of the aggressor to cause the injury.
Imminent unlawful aggression means an
attack that is impending or at the point of
happening; it must not consist in a mere
threatening attitude, nor must it be merely
imaginary, but must be offensive and
positively strong (like aiming a revolver at
another with intent to shoot or opening a knife
and making a motion as if to attack).
Imminent unlawful aggression must not be a
mere threatening attitude of the victim, such
as pressing his right hand to his hip where a
revolver was holstered, accompanied by an
angry countenance, or like aiming to throw a
pot.
By invoking self-defense, however, Fontanilla
admitted inflicting the fatal injuries that caused the
death of Olais. It is basic that once an accused in a
prosecution for murder or homicide admitted his
infliction of the fatal injuries on the deceased, he
assumed the burden to prove by clear, satisfactory
and convincing evidence the justifying
circumstance that would avoid his criminal liability.
Having thus admitted being the author of the death
of the victim, Fontanilla came to bear the burden
of proving the justifying circumstance to the
satisfaction of the court, and he would be held
criminally liable unless he established self-defense
by sufficient and satisfactory proof. xxx
Fontanilla did not discharge his burden. A review
of the records reveals that, one, Olais did not
commit unlawful aggression against Fontanilla,
and, two, Fontanilla's act of hitting the victim's head
with a stone, causing the mortal injury, was not
proportional to, and constituted an unreasonable
response to the victim's fistic attack and kicks.
Indeed, had Olais really attacked Fontanilla, the
latter would have sustained some injury from the
aggression. It remains, however, that no injury of
any kind or gravity was found on the person of
Fontanilla when he presented himself to the
hospital; hence, the attending physician of the
hospital did not issue any medical certificate to
him. Nor was any medication applied to him. In
contrast, the physician who examined the cadaver
of Olais testified that Olais had been hit on the
head more than once. The plea of self-defense was
thus belied, for the weapons used by Fontanilla
and the location and number of wounds he
inflicted on Olais revealed his intent to kill, not
merely an effort to prevent or repel an attack from
Olais. The Court considers to be significant that
the gravity of the wounds manifested the
determined effort of the accused to kill his victim,
not just to defend himself.[end]
Ex. A saw his enemy B. B was fast approaching to
A with a gun on his hand. Upon seeing that B was
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about 10 feet away, A immediately pulled out his
balisong and he spin B who was hit on the neck
and died.
There was no unlawful aggression. The mere act
of holding a gun will not constitute imminent and
immediate danger on the life of the person unless
the said gun is aimed at the said person. Same
with bolo or any weapon. If it is just being held by
a person, it will not yet produce any imminent or
immediate danger.
SC: For a bolo to produce imminent and
immediate danger, it must be held in a hacking
position. Only then that it will produce unlawful
aggression.
In the example, B was only walking with a gun on
his hand and it was not yet pointed or aimed to
the offender. Therefore, there was no unlawful
aggression.
If there is no unlawful aggression, that means that
2 is not present. Although 3 would be present
because there was sufficient provocation on the
part of the B.
Therefore, A should be convicted of homicide.
Self-defense would not lie in his favor.
People v. Ramon Regalario, et al., G.R. No.
174483, 31 March 2009
The moment the inceptive unlawful aggression
cease[s] to exist, the person defending himself
must not kill or wound the aggressor.
Retaliation is not a justifying circumstance.
The offended party or the victim, Rolando shot
allegedly the barangay official Ramon. Ramon hit
the back of the head of Roland with a night stick
and continued hitting him so he would not gain
balance. When the accused hit the victim whatever
inceptive unlawful aggression has been started by
the victim, it has already ceased to exist. Therefore,
the accused has no more right to wound or kill the
victim.
Facts: Accused-appellants Ramon, Marciano,
Sotero, Bienvenido and Noel Regalario-relatives by
affinity and barangay officials of Natasan, Albay-
were originally charged before the RTC of Ligao,
Albay with homicide for the death of Rolando
Sevilla. The DOJ, however, filed an amended
information charging them with murder.
The prosecution alleged that one night during a
dance and singing contest in the barangay, Rolando
and Poblete were enjoying the festivities when
kagawad Sotero approached them. Despite
Rolando and Poblete’s efforts to avoid trouble, a
commotion ensued. Eventually, it came to a point
where the Regalarios beat Rolando with their night
sticks until he slumped to the ground face down.
The barangay captain Marciano ordered the others
to kill Rolando and to tie him up. Rolando died due
to severe blood loss due to a stab wound and
multiple lacerated wounds.
The defense depicted a different story. Ramon
tried to investigate a commotion during the
festivities Rolando suddenly fired a shot at him,
hitting his left shoulder. Instinctively, Ramon
struck at Rolando with his night stick at the
back of his head. The blow caused Rolando to
reel backward. To prevent him from regaining
balance, Ramon continued to strike Rolando.
The latter lost his footing and fell down. At this
juncture Sotero arrived and tried to stop Ramon
from hitting Rolando, but lunged at Rolando upon
knowing that he still had the gun. Later, the other
Regalarios arrived. They were able to knock the
gun out of Rolando’s hand. Bienvenido arrived
after the fact and arrested Ronaldo. In lieu of
handcuffs, he just tied the hands and feet of
Rolando.
The RTC ruled out Ramon’s claim of self-defense
and held that there was conspiracy and abuse of
superior strength in the killing of Rolando. All the
Regalarios were convicted of murder. The CA
affirmed the RTC.
Issue: Whether Ramon acted in self-defense when
allegedly struck at Rolando despite the latter’s
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retreat.
Ruling: Appeal DENIED.
We begin our evaluation with accused-appellant
Ramon Regalario's claim of self-defense. Both the
CA and the trial court gave no credence to this
theory of self-defense.
When self-defense is invoked by an accused
charged with murder or homicide he necessarily
owns up to the killing but may escape criminal
liability by proving that it was justified and that he
incurred no criminal liability therefor. Hence, the
three (3) elements of self-defense, namely: (a)
unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to
prevent or repel the aggression; and (c) lack of
sufficient provocation on the part of the person
defending himself, must be proved by clear and
convincing evidence. However, without unlawful
aggression, there can be no self-defense, either
complete or incomplete.
Ramon contends that the victim Rolando Sevilla
committed an act of unlawful aggression with no
provocation on his [Ramon's] part. Ramon
testified that he was trying to investigate a
commotion when, without warning, Rolando
emerged from the group, thrust and fired his gun
at him, hitting him in the left shoulder. To disable
Rolando from firing more shots, Ramon struck the
victim's head at the back with his nightstick,
causing the victim to reel backward and lean on the
bamboo fence. He continued hitting Rolando to
prevent the latter from regaining his balance and,
as he pressed on farther, the victim retreated
backward.
By Ramon's own account, after he was shot, he hit
the victim at the back of the latter's head and he
continued hitting the victim who retreated
backward. From that moment, the inceptive
unlawful aggression on the part of the victim
ceased to exist and the continuation of the
offensive stance of Ramon put him in the place of
an aggressor. There was clearly no longer any
danger, but still Ramon went beyond the call of
self-preservation.
In People v. Cajurao, we held that the settled rule in
jurisprudence is that when unlawful aggression
ceases, the defender no longer has the right to
kill or even wound the former aggressor.
Retaliation is not a justifying circumstance. Upon
the cessation of the unlawful aggression and the
danger or risk to life and limb, the necessity for the
person invoking self-defense to attack his
adversary ceases. If he persists in attacking his
adversary, he can no longer invoke the justifying
circumstance of self-defense. Self-defense does
not justify the unnecessary killing of an
aggressor who is retreating from the fray.
Ramon's claim of self-defense is further belied by
the presence of two (2) stab wounds on the neck,
four (4) lacerated wounds on the head, as well as
multiple abrasions and contusions on different
parts of the victim's body, as shown in the Medico-
Legal Report. xxx Indeed, even if it were true that
the victim fired a gun at Ramon, the number,
nature and severity of the injuries suffered by the
victim indicated that the force used against him by
Ramon and his co-accused was not only to disarm
the victim or prevent him from doing harm to
others.[end].
People v. Sevillano, G.R. No. 200800, 9
February 2015 [see also: Dela Cruz v. People]
Facts: The victim Pablo Maddauin was seated on
a long bench and chatted with Palavorin and
Cardona when they saw accused-appellant
Sevillano, approach them. Sevillano appeared to
be drunk. Without warning, Sevillano stabbed
Pablo in the chest several times. Pablo was
brought to the hospital but died on the same day.
Sevillano claimed self-defense, averring that when
he went to the vacant lot where Pablo and his
friends were staying, Pablo tried to stab him but
missed his target. Sevillano and Pablo grappled for
the knife, but Pablo was accidentally stabbed.
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The RTC Manila found Sevillano guilty of murder,
and the CA affirmed RTC.
Issue: Whether Sevillano acted in self-defense.
Ruling: Appeal DENIED.
By invoking self-defense, Sevillano in effect,
admits to having inflicted the stab wounds which
killed the victim. The burden was, therefore,
shifted on him to prove that the killing was done
in self-defense.
Sevillano’s version that it was the victim who was
armed with a knife and threatened to stab him was
found by the lower court to be untenable. We agree
with the lower court’s conclusion. Assuming
arguendo that there was indeed unlawful aggression
on the part of the victim, the imminence of that
danger had already ceased the moment
Sevillano was able to wrestle the knife from
him. Thus, there was no longer any unlawful
aggression to speak of that would justify the
need for him to kill the victim or the former
aggressor. This Court has ruled that if an accused
still persists in attacking his adversary, he can no
longer invoke the justifying circumstance of self-
defense. The fact that the victim suffered many
stab wounds in the body that caused his demise,
and the nature and location of the wound also
belies and negates the claim of self-defense. It
demonstrates a criminal mind resolved to end the
life of the victim. [end]
People v. Dulin, G.R. No. 171284, 29 June 2015
Facts: One night, accused-appellant Alfredo
Dulin, with Jun Danao, was accompanying
Nicanor and Raymund to the highway to get a
tricycle ride, when he was attacked by the cousin of
his mother, Francisco Batulan. Batulan stabbed
Dulin on the right side of his body and on the left
side. Dulin and Batulan grappled for the weapon
until Dulin was able to wrest it from Batulan. Dulin
ran towards the second level of Francisco and
Carolina Danao’s house. Batulan pursued Dulin,
and while inside, both of them grappled for control
of the weapon again. Dulin, who was now in
control of the weapon, stabbed Batulan several
times. The latter died due to massive blood loss
caused by 12 stab wounds.
Dulin was charged with murder before the RTC of
Tuguegarao, Cagayan. Dulin raised incomplete
self-defense, but the RTC convicted him as
charged. The CA affirmed the conviction.
Issue: Whether the lower courts erred in not
appreciating the presence of self-defense or
incomplete self-defense.
Ruling: Appeal PARTIALLY GRANTED
There was no self-defense
The CA observed that although Batulan had
initiated the attack against Dulin the unlawful
aggression from Batulan effectively ceased once
Dulin had wrested the weapon from the latter.
We uphold the finding and holding of the CA.
Batulan, albeit the initial aggressor against
Dulin, ceased to be the aggressor as soon as
Dulin had dispossessed him of the weapon.
Even if Batulan still went after Dulin despite the
latter going inside the house of Danao, where they
again grappled for control of the weapon, the
grappling for the weapon did not amount to
aggression from Batulan for it was still Dulin
who held control of the weapon at that point.
Whatever Dulin did thereafter – like stabbing
Batulan with the weapon – constituted retaliation
against Batulan. In this regard, retaliation was not
the same as self-defense. In retaliation, the
aggression that the victim started already ceased
when the accused attacked him, but in selfdefense,
the aggression was still continuing when the
accused injured the aggressor. As such, there was
no unlawful aggression on the part of Batulan to
justify his fatal stabbing by Dulin.
Still, Dulin vigorously insists that the initial
aggression employed by Batulan did not cease
because the latter followed him into Danao’s house
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with the singular purpose of ending his life; and
that there was no gap in the aggression initiated by
Batulan.
The insistence is unwarranted. Dulin admitted
having successfully disarmed Batulan and then
running away from him. With the aggression by
Batulan having thereby ceased, he did not
anymore pose any imminent threat against
Dulin. Hence, Batulan was not committing
any aggression when Dulin fatally stabbed
him. It is notable, too, that the results of the
medico-legal examination indicating Batulan to
have sustained twelve stab wounds confirmed the
cessation of the attack by Batulan. The numerosity
and nature of the wounds inflicted by the accused
reflected his determination to kill Batulan, and the
fact that he was not defending himself.
Incomplete self-defense was not proved
Pursuant to Article 69 of the Revised Penal Code, the
privileged mitigating circumstance of incomplete
self-defense reduces the penalty by one or two
degrees than that prescribed by law. For this
purpose, the accused must prove the existence of
the majority of the elements for self-defense, but
unlawful aggression, being an indispensable
element, must be present. Either or both of the
other requisites may be absent xxx.
Dulin posits that the totality of circumstances
indicated that his acts constituted incomplete self-
defense, and must be appreciated as a privileged
mitigating circumstance. Dulin’s position is
untenable. Like in complete self-defense, Dulin
should prove the elements of incomplete self-
defense by first credibly establishing that the victim
had committed unlawful aggression against him.
With Batulan’s aggression having already ceased
from the moment that Dulin divested Batulan of
the weapon, there would not be any incomplete
self-defense. Moreover, as borne out by his
stabbing of Batulan several times, Dulin did not act
in order to defend himself or to repel any attack,
but instead to inflict injury on Batulan.
[NOTE: The SC held that the lower courts erred
in appreciating the attendance of treachery, as the
stabbing by Dulin did not take Batulan by surprise.
Dulin was convicted only for homicide].
Same reasoning in the case where the Neighbor
had sexual intercourse with the Wife when the
Husband left to go fishing. The W allowed it
thinking he was her H but when the N finished,
dressed himself up and he told the W, "Osang,
salamat!" Upon hearing the voice, the W realized
that he is not her H so she immediately jumped
out of the bed, took the bolo and hacked the N.
The N died. Prosecuted for homicide. She invoked
self-defense, particularly defense of honor and
chastity.
Was there self-defense?
There was no self-defense. The unlawful
aggression already ceased to exist because the
sexual congress was already finished. There was
no more honor to protect.
If you were the judge, would you convict or acquit
the accused?
Yes, I would convict the accused for the crime of
homicide, but I will give the said victim the
mitigating circumstances of immediate
vindication of a grave offense and sudden impulse
of passion and obfuscation. This to lower the
imposable penalty.
Ex. A tried to stab B. B evaded the blow. In the
course of said struggle, B gained possession of the
bolo or gun and fired at A. A died.
There was no self-defense. Even if the unlawful
aggression was started by A, the moment B
gained possession of the bolo or gun, the unlawful
aggression has already ceased to exist. There was
no more danger on the life of B. so when B fired,
it was not an act of retaliation which is justifying
circumstance.
2.Reasonable necessity of the means
employed to prevent or repel it.
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When you say reasonable necessity it does not
mean that when the aggressor makes use of a
bolo, the person defending must also make use
of a bolo. What the law requires is rational
equality. Rational is the means employed.
Rationally necessary to prevent or repel it.
Factors to be considered in order to be said that
the means employed is rationally necessary:
(a) Nature and the number of the weapon
used by the aggressor
(b) Physical condition, size, weight and other
personal circumstances of the aggressor
versus that of the person defending himself
(c) Place and location of the assault
All of these would determine if the means
employed of the person defending himself is
reasonably necessary to prevent or repel the
aggression.
3. Lack of sufficient provocation on the part
of the person defending himself.
PROVOCATION - refers to any immoral act or
conduct, unjustified act or conduct which stirs a
person to do wrong.
SUFFICIENT PROVOCATION - adequate to stir a
person to do the wrongful act and when it is
proportionate to the gravity of the act
Circumstances where there is no sufficient
provocation on the part of the person
defending himself:
 When no provocation at all was given
 When although provocation was given, it
was not sufficient
 When although the provocation was
sufficient, it did not come from the person
defending himself
 When although provocation came from the
person defending himself, it is not immediate or
imminent to the aggression.
Josue v. People, G.R. No. 199579, 10
December 2012
Facts: Petitioner Ramon Josue was charged with
frustrated homicide before the RTC of Manila.
The prosecution alleged that one evening, a
barangay tanod named Armando Macario was
buying medicine when he was approached by
Josue, while the latter was shouting to ask why
Macario painted the latter’s vehicle. Macario
denied the accusation, but Josue still pointed his
gun and shot at Macario, who was hit in the elbow
and fingers. The unarmed Macario tried to run, but
Josue still fired at him, causing a gunshot wound
at Macario’s back. The latter was brought to
hospital for treatment, where the doctor
confirmed that the injuries were fatal if not
medically attended to.
Josue claimed that he merely acted in self-defense.
He caught Macario and some of his cohorts
stealing the battery of his jeepney. When Josue
sought the attention of Macario’s group, the latter
pulled a gun and tried to shoot Josue, but the gun
jammed. Josue then got his gun and fired at
Macario.
The RTC found Josue guilty of frustrated
homicide, and the CA affirmed the RTC.
Issue: Whether Josue is not guilty due to self-
defense.
Ruling: Petition DENIED.
In the present case, particularly significant to this
element of “unlawful aggression” is the trial
court’s finding that Macario was unarmed at the
time of the shooting, while Josue then carried with
him a .45 caliber pistol. According to prosecution
witness Villanueva, it was even Josue who
confronted the victim, who was then only buying
medicine from a sari-sari store. Granting that the
victim tried to steal Josue’s car battery, such did
not equate to a danger in his life or personal
safety. At one point during the fight, Macario
even tried to run away from his assailant, yet Josue
continued to chase the victim and, using his .45
caliber pistol, fired at him and caused the mortal
wound on his chest. Contrary to Josue’s defense,
there then appeared to be no “real danger to his
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life or personal safety,” for no unlawful aggression,
which would have otherwise justified him in
inflicting the gunshot wounds for his defense,
emanated from Macario’s end.
The weapon used and the number of gunshots
fired by Josue, in relation to the nature and
location of the victim’s wounds, further negate the
claim of self-defense. For a claim of self-defense
to prosper, the means employed by the person
claiming the defense must be commensurate to the
nature and extent of the attack sought to be
averted, and must be rationally necessary to
prevent or repel an unlawful aggression.
Considering Josue’s use of a deadly weapon when
his victim was unarmed, and his clear intention to
cause a fatal wound by still firing his gun at the
victim who had attempted to flee after already
sustaining two gunshot wounds, it is evident that
the Josue did not act merely in self-defense, but
was an aggressor who actually intended to kill his
victim. [end]
Guevarra & Guevarra v. People, G.R. No.
170462, 5 February 2014
Facts: Rodolfo Guevarra and his son Joey were
charged with frustrated homicide and homicides
under two informations. The prosecution alleged
that the victims (and brothers) Erwin and David
Ordoñez and Vingua were passing the Guevarras’
compound in Alicia, Isabela when Joey stabbed
David with a bolo. Erwin, who was walking ahead
of his companions, approached the scene, but was
met by Rodolfo who then hacked him. The
Guevarras then dragged Erwin into their
compound and continued hacking Erwin. David
and Erwin became unconscious and were brought
to the hospital. David died.
The defense alleged that Erwin, David and Vingua
forced their way into the Guevarra compound and
threw stones at Rodolfo’s tricycle and house.
Rodolfo went down the silung of his house and
shouted at the three to stop. Erwin and David
attacked the Guevarras, and as a response Rodolfo
reached for his bolo and hacked and stabbed Erwin
and David until the latter fell to the ground.
The RTC of Cauayan City, Isabela found the
Guevarras guilty, holding that they failed to prove
unlawful aggression on the part of the victims. The
CA affirmed the RTC.
Issue: Whether the CA erred in failing to
appreciate the presence of self-defense.
Ruling: Petition DENIED.
By invoking self-defense, the petitioners, in effect,
admitted to the commission of the acts for which
they were charged, albeit under circumstances that,
if proven, would have exculpated them. With this
admission, the burden of proof shifted to the
petitioners to show that the killing and frustrated
killing of David and Erwin, respectively, were
attended by the following circumstances: (1)
unlawful aggression on the part of the victims; (2)
reasonable necessity of the means employed to
prevent or repel such aggression; and (3) lack of
sufficient provocation on the part of the persons
resorting to self-defense.
Of all the burdens the petitioners carried, the most
important of all is the element of unlawful
aggression. Unlawful aggression is an actual
physical assault, or at least threat to inflict real
imminent injury, upon. person [sic]. The element
of unlawful aggression must be proven first in
order for self-defense to be successfully pleaded.
There can be no self-defense, whether complete or
incomplete, unless the victim had committed
unlawful aggression against the person who
resorted to self-defense.
As the RTC and the CA did, we find the absence
of the element of unlawful aggression on the part
of the victims. As the prosecution fully established,
Erwin and David were just passing by the
petitioners’ compound on the night of November
8, 2000 when David was suddenly attacked by Joey
while Erwin was attacked by Rodolfo. The attack
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actually took place outside, not inside, the
petitioners’ compound, as evidenced by the way
the petitioners’ gate was destroyed. The manner by
which the wooden gate post was broken coincided
with Erwin’s testimony that his brother David,
who was then clinging onto the gate, was dragged
into the petitioners’ compound. These
circumstances, coupled with the nature and
number of wounds sustained by the victims, clearly
show that the petitioners did not act in self-defense
in killing David and wounding Erwin. The
petitioners were, in fact, the real aggressors. [end]
Dela Cruz v. People & Gonzales, G.R. No.
189405, 19 November 2014 [See also: Sevillano]
Facts: One afternoon, petitioner Dela Cruz went
into Sykes Asia, the workplace of the victim Jeffrey
Gonzales. As Dela Cruz approached Jeffrey from
the back, he was already pointing a gun at the back
of Jeffrey’s head. At the last second, the latter
managed to deflect Dela Cruz’s hand, and they
struggled for the possession of the gun. Dela Cruz
won the struggle and remained in possession of
the gun, while Jeffrey held up a fire extinguisher.
Dela Cruz pulled the trigger 4 times, the last finally
discharging a round which hit and killed Jeffrey.
Dela Cruz, on the other hand, alleged that he went
to Sykes to fetch his wife Darlene. As she was not
on her table, Dela Cruz approached Jeffery and
asked for her whereabouts. Jeffrey’s response
shocked and appalled Dela Cruz. Later, the former
cursed the latter. Then, Jeffrey picked up a gun and
aimed at Dela Cruz’s face. He pulled the trigger
but the gun did not fire. Dela Cruz grappled with
Jeffrey for the possession of the gun. While doing
so, the gun clicked for 2 to 3 times, but the gun did
not fire.
Dela Cruz won the struggle and tried to run away,
but Jeffrey blocked his path, shouted for the
guards, and tried to smash Dela Cruz’s head with
a fire extinguisher. The latter parried the attack
while still holding the gun, and the gun accidentally
fired, and the bullet hit Jeffrey’s forehead.
Dela Cruz was charged with homicide, and the
RTC Makati found Dela Cruz guilty of the same.
On appeal, the CA affirmed the RTC.
Issue: Whether Dela Cruz acted in self-defense.
Ruling: Petition DENIED.
The Court finds that Dela Cruz’s defense is sorely
wanting. Hence, his petition must be denied.
First. The evidence on record does not support
petitioner's contention that unlawful aggression
was employed by the deceased-victim, Jeffrey,
against him.
Unlawful aggression is the most essential element
of self-defense. It presupposes actual, sudden,
unexpected or imminent danger — not merely
threatening and intimidating action. There is
aggression, only when the one attacked faces real
and immediate threat to his life. The peril sought
to be avoided must be imminent and actual, not
merely speculative. In the case at bar, other than
petitioner's testimony, the defense did not adduce
evidence to show that Jeffrey condescendingly
responded to petitioner's questions or initiated the
confrontation before the shooting incident; that
Jeffrey pulled a gun from his chair and tried to
shoot petitioner but failed — an assault which may
have caused petitioner to fear for his life.
Even assuming arguendo that the gun originated
from Jeffrey and an altercation transpired, and
therefore, danger may have in fact existed, the
imminence of that danger had already ceased
the moment petitioner disarmed Jeffrey by
wresting the gun from the latter. After
petitioner had successfully seized it, there was no
longer any unlawful aggression to speak of that
would have necessitated the need to kill Jeffrey. As
aptly observed by the RTC, petitioner had every
opportunity to run away from the scene and seek
help but refused to do so.
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Thus, when an unlawful aggression that has
begun no longer exists, the one who resorts to
self-defense has no right to kill or even wound
the former aggressor. To be sure, when the
present victim no longer persisted in his purpose
or action to the extent that the object of his attack
was no longer in peril, there was no more unlawful
aggression that would warrant legal self-defense
on the part of the offender. [20] Undoubtedly,
petitioner went beyond the call of self-
preservation when he proceeded to inflict
excessive, atrocious and fatal injuries on Jeffrey,
even when the allegedly unlawful aggression had
already ceased.
More, a review of the testimony of the prosecution
witness, Pelaez, will show that if there was
unlawful aggression in the instant case, the same
rather emanated from petitioner.
Petitioner's contention that Jeffrey's unlawful
aggression was continuous and imminent is,
therefore, devoid of merit.
Given that the criteria of unlawful aggression is
indubitably absent in the instant case, the severe
wounds inflicted by petitioner upon Jeffrey was
unwarranted and, therefore, cannot be considered
a justifying circumstance under pertinent laws and
jurisprudence.
Second. Even assuming that the unlawful aggression
emanated from the deceased victim, Jeffrey, the
means employed by petitioner was not reasonably
commensurate to the nature and extent of the
alleged attack, which he sought to avert.
If petitioner had honestly believed that Jeffrey was
trying to kill him, he should have just run, despite
any obstruction, considering that he was already in
possession of the gun. He could have also
immediately sought help from the people around
him, specifically the guard stationed at the floor
where the shooting incident happened. In fact, he
could have reported the incident to the authorities
as soon as he had opportunity to do so, if it was
indeed an accident or a cry of self-preservation.
Yet, petitioner never did any of that.
We find it highly specious for petitioner to go
through the process of tussling and hassling with
Jeffrey, and in the end, shooting the latter on the
forehead, not only once, but four times, the last
shot finally killing him, if he had no intention to
hurt Jeffrey. [end]
A woman was on her way home at 3AM. Suddenly
a man appeared, boxed her, dragged her on a
portion of a vacant lot, boxed her again, pinned
her down, and undressed her. When the man
stood up to undress himself, the woman took the
moment to get the balisong in her bag. When the
man placed himself on top of the woman, the
woman stabbed the man. The man died.
Prosecuted for homicide. The woman invoked
self-defense particularly defense of one’s honor
and chastity.
Is there self-defense?
Let's go by the requisites.
First, unlawful aggression. Was there unlawful
aggression? Yes, the man boxed her, dragged her,
undressed her, pinned her down. This is
unlawful aggression sufficient to mean that she
would be raped. Second, reasonable necessity of
the means employed to prevent or repel the
aggression. The man was unarmed.
Is it reasonably necessary for the woman to make
use of the balisong?
Yes, because of the factors to be considered.
Although the said man [is unarmed], you must
take into consideration of the personal
circumstances of the woman versus that of the
man, the physical circumstances. Likewise, you
must take into consideration the place and the
occasion. [It was 3 o'clock in the morning, nobody
could give help to the woman. The only means she
could do to help herself and prevent the act of
rape would be to stab the man.]
The second element is present.
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Third, lack of sufficient provocation. It is present.
The woman was merely walking on her way
home. Absolutely there was no sufficient
provocation coming from the woman.
Therefore, the woman was justified in killing the
man. She acted in self-defense.
Ex. When the father went home, his son was
crying. When he was asked by his father why he
was crying, he said he was slapped by the
neighbor. When he was asked why he was
slapped, the son did not answer. The father
decided to inquire from the neighbor why he
slapped his son. Such inquiry angered the
neighbor. The neighbor who was at that time was
gardening tried to hit the father with a rake that
he was using for gardening. The first blow and the
second blow were evaded. The neighbor tried to
hit again the father for the third time, the father
saw a pointed stick on the ground, took it and
stabbed the neighbor. The neighbor suffered a
fatal wound, brought to the hospital and survived.
The father was prosecuted for frustrated
homicide. He invoked self-defense.
Is there self-defense?
First, there was unlawful aggression. The
neighbor tried to hit him with a rake 3 times.
There was an image of danger from his life.
Second, reasonable necessity of the means
employed to prevent or repel the aggression. The
father went to the house of the neighbor without
any arms and at the time he was attacked, he just
saw a pointed stick. That is the only means that he
could avail at the moment to protect himself.
Therefore it was reasonably necessary to use the
said means.
Third, lack of sufficient provocation on the part of
the person defending himself. The act of the
father inquiring from the neighbor why he
slapped his son was an act within his right. It
cannot be considered as sufficient provocation. It
is the right of the father to know why his son was
hurt or injured by the neighbor.
Toledo v. People, G.R. No. 158057, 24
September 2004: No accidental self-defense
There is no accidental self-defense, as SD is
inconsistent with accident. Because in self-defense
it is direct and positive overt act in the name of self-
preservation. It is direct and positive. It cannot be
done out of accident.
Facts: On his way home one late afternoon,
accused Toledo saw his nephew, Ricky Guarte
drinking along with his friends Famero, Fosana
and Cortes. They were drinking inside the house
of Ricky’s parents. Toledo requested the group to
refrain from making noise. Then he went inside his
house and slept. Later that evening Ricky and his
friends, who were sleeping in the Guarte’s house,
heard stones being hurled at the roof. Ricky got up
and saw that it was Toledo who was stoning the
hose. Ricky went to his uncle’s house and asked
why he was stoning their house. Without warning,
Toledo stabbed Ricky in the abdomen with a bolo.
He was rushed to the hospital but died due to
massive blood loss.
Toledo asserts that while on his way home he
ordered Ricky’s group not to make loud noises,
and they obliged. He then went inside his house
(w/c was 5M away) and slept. Later, he was
awoken by the loud noises made by Ricky’s group.
Ricky, who was inebriated, was incensed and
pulled a balisong, pushed Toledo’s door and
threatened to stab the latter. Toledo took his bolo
and pushed the door with all his might and then
pointed the bolo at Ricky. The bolo accidentally hit
Ricky in the stomach.
Toledo was charged with homicide before the
RTC of Romblon, which convicted him and
disregarded his claim that the bolo accidentally hit
Ricky in the stomach. Toledo appealed to the CA,
invoking Art. 12, Par. 4; in that the stabbing was
an accident. The CA denied the appeal, holding
that Toledo failed to prove that he acted in self-
defense.
Issue: Whether Toledo was able to prove self-
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defense when his bolo accidentally hit Ricky.
Ruling: Petition DENIED.
The petitioner testified that his bolo hit the victim
accidentally. He asserted in the RTC and in the
CA that he is exempt from criminal liability for the
death of the victim under Article 12, paragraph 4
of the Revised Penal Code.
However, the petitioner changed gear, so to speak,
and now alleges that he acted in self-defense when
he stabbed the victim. As such, he contends, he is
not criminally liable under Article 11, paragraph 1
xxx. He avers that he was able to prove the
essential elements of complete self-defense;
however he also claims that his bolo accidentally
hit the stomach of the victim.
It is a matter of law that when a party adopts a
particular theory and the case is tried and decided
upon that theory in the court below, he will not be
permitted to change his theory on appeal. The case
will be reviewed and decided on that theory and
not approached and resolved from a different
point of view. To permit a party to change his
theory on appeal will be unfair to the adverse
party.
It is an aberration for the petitioner to invoke
the two defenses at the same time because the
said defenses are intrinsically antithetical.
There is no such defense as accidental self-
defense in the realm of criminal law.
Self-defense under Article 11, paragraph 1 of the
Revised Penal Code necessarily implies a
deliberate and positive overt act of the accused
to prevent or repel an unlawful aggression of
another with the use of reasonable means. The
accused has freedom of action. He is aware of
the consequences of his deliberate acts. The
defense is based on necessity which is the supreme
and irresistible master of men of all human affairs,
and of the law. From necessity, and limited by it,
proceeds the right of self-defense. The right
begins when necessity does, and ends where it
ends.[12] Although the accused, in fact, injures or
kills the victim, however, his act is in accordance
with law so much so that the accused is deemed
not to have transgressed the law and is free from
both criminal and civil liabilities.
On the other hand, the basis of exempting
circumstances under Article 12 of the Revised
Penal Code is the complete absence of
intelligence, freedom of action, or intent, or
the absence of negligence on the part of the
accused. The basis of the exemption in Article
12, paragraph 4 of the Revised Penal Code is
lack of negligence and intent. The accused does
not commit either an intentional or culpable
felony. The accused commits a crime but there is
no criminal liability because of the complete
absence of any of the conditions which constitute
free will or voluntariness of the act. An accident is
a fortuitous circumstance, event or happening; an
event happening wholly or partly through human
agency, an event which under the circumstances is
unusual or unexpected by the person to whom it
happens [end]
2. Defense of a Relative
Elements:
1. Unlawful aggression;
2. Reasonable necessity of the means employed
to prevent or repel it;
3. In case the provocation was given by the
person attacked, the one making the defense
had no part therein.
Even if the relative, who was defended by the
offender, was the one provoked the offended
party, the offender should [have taken] no part in
the provocation in said situation so as to justify
the defense of a relative.
3. Defense of a Stranger
Elements:
1. Unlawful aggression;
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2. Reasonable necessity of the means employed
to prevent or repel the attack;
3. The person defending be not induced by
revenge, resentment, or ill motive.
The 3rd element requires that the said offender
must be disinterested and not induced by any
other motive, otherwise, defense of a stranger will
not lie. [The person claiming the defense must
be ignited solely by disinterest and generous
motive.]
Q: What if one night, A and B were on board a
jeepney. Said jeepney was flagged down by X.
Upon reaching a dark portion of the street, X
pulled a balisong and declared a hold-up. X poked
A with his balisong and said "give me your
cellphone". A did not want to give her cellphone
to X. X was about to stab A when B, upon seeing
that the latter was about to stab B, immediately
kicked X out of the jeepney. X, who fell from the
jeepney suffered physical injuries. B was
prosecuted for serious physical injuries. B
invoked defense of a stranger.
Answer:
We should go by the elements:
1st: Unlawful aggression. Was there unlawful
aggression?
A: Yes, X was about to stab A because A did not
want to give her CP.
2nd: Reasonable necessity of the means
employed to prevent or repel said aggression
A: Yes. Note that B was unarmed. All that he did
was he kicked X out of the jeepney. It was
necessary for him to do said act in order for him
to prevent the aggression
3rd: The offender was induced by revenge,
resentment, or motive A: Yes. In the problem,
there was no showing that B knows X, so it cannot
be said that B is induced by any motive.
4. State of Necessity
Elements of state of necessity:
1. The evil sought to be avoided actually
exists;
2. The injury feared be greater than that
done to avoid it;
3. There be no other practical and less
harmful means of preventing it.
DOCTRINE OF STATE OF NECESSITY
GR: In justifying circumstances, there is no
criminal as well as civil liability.
XPN: State of necessity. There is no criminal
liability but there is civil liability- borne not only
by the accused, but all those people who
benefitted in this state of emergency.
Art. 101 of the RPC provides that "In cases falling
within subdivision 4 of Art 11, the persons for
whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they
may have received.”
[4. The necessity(/evil sought to be avoided)
must not be due to the negligence or the
violation of the law of the actor.]
Sample problem:
A pregnant woman met an accident. She was
immediately brought to the hospital. Because of
the said dire situation, the doctor who was in
charge of the pregnant woman has to make a
decision, which is to save only one life, either the
life of the woman or the baby that she is carrying.
The doctor chose to save the life of the woman.
Because of that, the fetus died. Prosecuted for
abortion, the doctor invoked the doctrine of state
of necessity.
LET'S GO BY THE ELEMENTS:
1st: That the evil sought to be avoided actually
exists;
In this case, the life of the baby and the mother is
in danger
2nd: That the injury feared be greater than that to
avoid it;
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The injury (death of the pregnant woman) is
greater than that of the death of the fetus
3rd that there be no other practical and less
harmful means of preventing it
The situation was an emergency. The woman had
no relatives with her so the doctor has to decide
immediately—either to save the life of the mother
or the fetus. Therefore the doctor should be
absolved from criminal liability.
A woman was riding a taxi. In order to avoid
traffic in EDSA, the taxi went to the streets
along Mandaluyong. The taxi entered a street
with a signage stating: “do not enter.” The
driver disregarded the signage. The taxi then
was pushed to an emergency situation, there
was a deep excavation and the taxi will fall
therein. He swerved to the right thereby hitting
several bystanders and the latter sustained
serious physical injuries. He was prosecuted
for reckless imprudence resulting to serious
physical injuries. The driver invoked state of
necessity. Is the defense tenable?
Elements:
1st: That the evil sought to be avoided actually
exists;
Yes, there was a collision
2nd: That the injury feared be greater than that to
avoid it;
Yes, there would be death or injury.
3rd that there be no other practical and less
harmful means of preventing it
Yes.
However, this time the taxi driver would be liable.
Aside from these 3 requisites stated by the
law, it should be added that the necessity must
not be due to the negligence or violation of the
law by the actor. In this case, there was a
warning to the taxi driver not to enter the street,
yet he proceeded. It is through his negligence that
caused the state of necessity, therefore he is
criminally and civilly liable.
5. Fulfillment of a duty or in a lawful exercise
of a right or office
Elements of Par. 5, Art. 11:
1. Accused acted in the performance of a
duty or in the lawful exercise of a right
or office.
2. Injury caused or offense committed be
the necessary consequence of the due
performance of duty or the lawful
exercise of such right or office.
Note that the injury is the necessary consequence
of the lawful exercise of duty.
6. Obedience to an order issued by a superior
for some lawful purpose
Elements of Par. 6, Art. 11:
1. An order has been issued by a superior
2. Such order must be for some lawful
purpose
3. Means used by the subordinate to carry
out said order is lawful
Q: Chief of police of QC gave a warrant of
arrest to his subordinates for the arrest of A.
If A refuse to be arrested, they can immobilize
A. The police officers saw A watering the
plants. Upon seeing A, police officer B
immediately fired at A. B invoked obedience to
an order by a superior and exercise of a lawful
duty. Are these circumstances present?
A: [Both are NOT present]
Obedience to an order of a superior. Although
the officer acted upon the order of the superior,
the means employed by the subordinate to carry
out said order was unlawful. B immediately
fired at A even before showing the warrant of
arrest. Therefore, this justifying circumstance is
absent.
With regard to the lawful exercise of a duty,
the second element is absent—that the injury
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caused or offense committed be the necessary
(or unavoidable) consequence of the due
performance of duty or the lawful exercise of
such right or office. The killing of A in this
case was not an unavoidable consequence of the
performance of B’s duty.
Note: both the order and the means used
by the accused must be lawful. However,
even if the order is not lawful but it
appears to be lawful and the subordinate
believes it to be lawful, the justifying
circumstance would still lie.
Example:
X is a convict in the New Bilibid Prison.
During an opportunity X escaped. Prison guards
learned of it and sought the assistance of the
police. They followed X. He went to the public
market because he saw the guards and
policemen following him. X took a child as a
hostage and pointed an icepick at the neck of
the child. He told them that if they would
come near he would attack the child. The child
sensing that his life is in danger started to cry.
The convict was annoyed by the crying and
tried to attack the child with the icepick. A
Policeman shot the prisoner. He died.
The police officer was prosecuted for the crime
of homicide. As his defense, he acted in the
lawful performance of duty. Was he right?
First element: the police officer acted in the
performance of his duty. He had an order to
arrest and bring back to prison the prisoner.
Second element: it is a necessary consequence
of the due performance of his duty. He was
preventing the danger posed by the imminent
attack against the boy. He should be acquitted.
BATTERED WOMAN SYNDROME
Anti-Violence against Women and their Children
Act of 2004 (R.A. 9262)
RA 9262, Section 26:
Victim-survivors who are found by the court to
be suffering from battered woman syndrome do
not incur any criminal and civil liability
notwithstanding the absence of any of the
elements for justifying circumstance of self-defense
under the RPC.
In the determination of the state of mind of the
woman who was suffering from battered woman’s
syndrome at the time of the commission of the
crime, the courts shall be assisted by expert
psychiatrists/psychologists.
Battered Woman Syndrome: a scientifically defined
pattern of psychological and behavioral symptoms
found in women living in battering relationships as
a result of cumulative abuse (Sec. 3(b), R.A. 9262).
But before the court may acquit the accused
by reason of battered woman syndrome, there
must be the presentation of expert witnesses.
There must be testimonies coming from
psychiatrists or psychologists that at the time
of commission, the victim was indeed suffering
from battered woman syndrome. Courts or
judges cannot by themselves determine if
indeed the woman was suffering battered
woman syndrome.
A and B are husband and wife. They had been
living for 12 years. In the course of their
relationship, A would be hit by B for every minor
mistakes that she [would] commit. The wife
would always suffer physical injuries and would
often go to her psychiatrist. One time, the
husband arrived home and drunk. This time, he
did not beat his wife, but immediately went to the
bedroom and slept.
The wife took this opportunity to kill her
husband. She took a bolo and hacked her sleeping
husband. Upon seeing her husband dead, she
wrapped him with their blanket. Thereafter, she
took her children and left the house. After some
time, the neighbors of the husband and wife
noticed a foul smell coming from the house. When
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they opened the house, they saw the body of the
husband. The wife was prosecuted for parricide.
If you were the counsel, what will be your
defense?
You can have the defense of the Battered Woman
Syndrome.
What is a battered woman?
She is woman who is repeatedly subjected to any
forceful physical or psychological behavior by a
man in order to coerce her to do something he
wants her to do without concern for her rights.
Battered women includes wives or women in
any form of intimate relationship with men.
Furthermore, in order to be classified as a
battered woman, the couple must go through
the battering cycle at least twice. Any woman
may find herself in an abusive relationship with a
man once. If it occurs a second time, and she
remains in the situation, she is defined as a
battered woman.
Note that battered woman syndrome is akin to
justifying. It is even better that self-defense
because in self-defense, you have to prove that
the elements are present. However, in battered
woman syndrome, what should be proven is that
the wife is suffering from battered woman
syndrome. It is through the expert testimony of
the psychiatrist who will prove that the wife is
suffering from battered woman syndrome. If this
is proven, she is absolved from criminal and civil
liability.
This is an actual case People vs Genosa wherein
the wife was prosecuted for parricide. However,
in this case, RA 9262 was not yet enacted, so the
wife was convicted for parricide, but she was
entitled to mitigating circumstances.
Art. 12. Circumstances which exempt from
criminal liability. — the following are exempt
from criminal liability:
1. An imbecile or an insane person, unless the
latter has acted during a lucid interval.
When the imbecile or an insane person has
committed an act which the law defines as a
felony (delito), the court shall order his
confinement in one of the hospitals or asylums
established for persons thus afflicted, which
he shall not be permitted to leave without first
obtaining the permission of the same court.
2. A person under nine years of age.
3. A person over nine years of age and under
fifteen, unless he has acted with discernment,
in which case, such minor shall be proceeded
against in accordance with the provisions of
Art. 80 of this Code.
When such minor is adjudged to be
criminally irresponsible, the court, in
conformably with the provisions of this and
the preceding paragraph, shall commit him to
the care and custody of his family who shall be
charged with his surveillance and education
otherwise, he shall be committed to the care of
some institution or person mentioned in said
Art. 80.
4. Any person who, while performing a lawful
act with due care, causes an injury by mere
accident without fault or intention of causing
it.
5. Any person who act under the compulsion of
irresistible force.
6. Any person who acts under the impulse of an
uncontrollable fear of an equal or greater
injury.
7. Any person who fails to perform an act
required by law, when prevented by some
lawful or insuperable cause.
EXEMPTING CIRCUMSTANCES
Those circumstances if present or attendant in the
commission of a felony would serve to exempt the
offender from criminal liability but not from civil
liability.
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the commission of
Although a wrong is committed, the offender is the crime, NOT after.
exempted from criminal liability because he acted Exempting under any Not exempting under
without voluntariness. There is absence of any of circumstance. any circumstance
the elements of voluntariness. There is absence of because, if it can be
either criminal intent or freedom of action or shown that he
intelligence. Therefore, he is free from criminal committed the crime
liability but since a wrong is done, he is civilly in lucid interval, he is
liable. liable.

Justifying Exempting
Just like exempting circumstance, imbecility and
Circumstances Circumstances
insanity are both admission and avoidance: A was
Affect the act not the Affect the doer of the
charged with crime. He invoked insanity. Hence
doer act but not the act itself
he in effect admitting the crime. But he wanted to
Perform an act which A wrong has been be absolved of criminal liability by stating that he
is lawful in nature committed is insane so that he will not have any criminal
There is no crime and There is a crime but no liability.
no criminal criminal because
offender acted without In the Civil Code, it is presumed that the person is
voluntariness sane. Therefore the burden of evidence is on the
GR: No criminal GR: No criminal defense. Therefore, all the accused has to do is to
liability and no civil liability but with civil prove that he was insane when he committed the
liability. liability because a crime.
crime was committed.
May be a defense only Defense both in Situation:
in intentional felonies. intentional and A:
culpable felonies What if A killed B and stabbed him many times. A
was prosecuted for murder. The defense tried to
1. Insanity and imbecility prove that was he was insane. To prove insanity,
Note that in this paragraph there are two the defense presented the father of A, who
exempting circumstances: testified that his son would go out of their home
IMBECILITY INSANITY naked and thereafter return. Second, his son was
An imbecile is one Refers to the mental in and out of the mental institution. Third, his son
who is already aberrational would steal the jewelries of his mother and would
advanced in age but background or sell it at an extreme low price. These were the
only have a thinking disease of the mind evidence presented by the defense.
of a child between 2 and must completely
and 7. impair the In this case, the accused cannot be considered to
intelligence of the be insane. The father’s testimony, instead of
There is no accused (unable to proving that A was insane, established otherwise.
intelligence, an distinguish between First, an insane person would not know where his
element of house is. Second, A was in and out of the mental
right from wrong).
voluntariness. institution. Third, an insane person would not
To be exempting it know that a thing has value (considering the
must be proved that evidence that the son sold the jewelries of the
the accused was mother at a low price)
insane at the time of

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B:
What if A killed B. A stated that a week prior to
the killing, he could not sleep and there was a
voice that kept nagging him, "Kill B, kill B." And so
he killed B, so he followed the voice. He pleaded
guilty but his defense was insanity.
The Supreme Court ruled that he is not insane.
Mere mental disturbance, mere craziness is not
the insanity contemplated by the law. It is the
insanity which would deprive the offender the
capacity to distinguish right from wrong and the
consequences of his act.
In an old case, sleep walking or somnambulism is
also considered as akin to insanity. He did not
know what he was doing at that time when he
killed the victim. Therefore, there is no criminal
liability.
2 & 3: MINORITY
Sec. 6, RA 9344
Sec. 6. Minimum age of criminal responsibility. – A child
fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from
criminal liability. However, the child shall be
subjected to an intervention program pursuant to
Section 20 of this Act.
A child above fifteen (15) years but below eighteen
(18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment,
in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein
established does not include exemption from civil
liability, which shall be enforced in accordance with
existing laws
The second and third circumstance was already
amended by R.A. 9344 or the Juvenile Justice
and Welfare Act of 2006. This refers to a child in
conflict of the law. A child in conflict with the law
is a child who is alleged as, accused of, or
adjudged as, having committed an offense under
Philippine laws. The effect of minority on the
criminal liability would depend on the age of the
minor.
Under the law, if a child committed a felony
when he is 15 or below, he is exempted from
criminal liability. The moment the offender is
age 15 years or below, do not anymore look for
discernment. Just by the fact that he is 15 or below,
he is totally exempted.
If he is over 15 but below 18, but he did not act
with discernment, he is exempted from
criminal liability. If he is over 15 but below 18
and he acted with discernment, he is not
exempted from criminal liability and he will be
prosecuted just like any other criminal.
So, if the offender is 16, therefore he is over 15 but
below 18, and he committed a crime and acted
with discernment. During the trial, it was
established and proven that he is guilty beyond
reasonable doubt. There is already a
pronouncement of a judgment of civil liability.
Under Sec. 38, once the child who is under 18
years of age at the time of the commission of the
crime was found guilty of the offense charged the
court shall determine and ascertain any civil
liability which may have resulted from the
offense committed.
However, instead of pronouncing the judgment of
conviction, the court shall place the child in
conflict with the law under suspended sentence,
without need of application, even if he is already
18 or above at the time of the pronouncement of
his guilt. Provided, he is not yet beyond 21 years
of age (sec. 40). Provided however, that the
suspension of the sentence shall still be applied
even if the juvenile is already 18 years of age or
more at the time of the pronouncement of his
guilt. Therefore, as long as he is 18 years and
below at the time of the commission of the crime,
even if he is above 18 at the promulgation
pronouncing the judgment of conviction, the
court shall place the child in conflict with the law
under suspended sentence, without need of
application. Provided however, that the
suspension of the sentence shall still be applied
even if the juvenile is already 18 years of age or
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more at the time of the pronouncement of his
guilt.
Therefore, as long as he is 18 years and below at
the time of the commission of the crime, even if
he is above 18 at the promulgation of the
judgment, he can still benefit from the suspended
sentence.
SC: section 38 does not distinguish as to what
crime was committed. Therefore, the court shall
also not distinguish. Provided, his age is not over
21 years. Section 51 is the only provision that may
be given retroactive application to the accused. So
he need not be placed in prisons but instead in
agricultural camps, etc.
SEC. 51. Confinement of Convicted Children in
Agricultural Camps and other Training Facilities. -
A child in conflict with the law may, after
conviction and upon order of the court, be
made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in an
agricultural camp and other training facilities
that may be established, maintained,
supervised and controlled by the BUCOR, in
coordination with the DSWD.
Note that under Section 40 of said act, if a child is
under suspended sentence, the court shall decide
to discharge or to extend the sentence for a
specific period of time or until the child attains
the maximum age of 21. Although there is
automatic suspension, it is tempered by Section
40. Therefore, the maximum limit is 21 years old.
This happened in People vs Sarcia and in People
vs Mantalaba. In the first case, the accused was
convicted of statutory rape. In this case, the SC
ruled that the law should be given a retroactive
application. Section 36 of the act provided that
persons who have been convicted and are serving
sentence at the time of the effectivity of the act
and who were below 18 at the time of the
commission of the offense for which they were
convicted and are serving sentence shall be given
a retroactive application of the act.
The SC also ruled that although the crime
committed is a heinous crime, the accused can still
be given a suspension of the sentence. Section 38
does not distinguish the nature of the crime, be it
heinous, capital, or light offense, the child is
entitled to suspension of sentence.
However, the SC ruled that considering the age of
Sarcia (already 31), he cannot be given anymore
the benefit of suspension. Although he committed
the crime when he was 17 years old, the
maximum age is 21.
The only benefit that was available to him was
that he shall serve his sentence in an agricultural
camp and other training facilities.
The same case was applied in People vs
Mantalaba. They have the very same issues. The
case is about the sale of illegal drugs involving
minors. In this case, the SC remanded the CA. The
CA should have suspended the sentence because
at that time the law was enacted and was on
appeal to the CA, the accused was 20 years of age,
hence he is entitled to the automatic suspension
of his sentence.
People v. Sarcia, G.R. No. 169641, 10
September 2009
Facts: An information was filed in the RTC of
Ligao City, charging accused-appellant Richard
Sarcia of raping AAA, who was then 6 years old,
sometime in 1996. The RTC found the
prosecution evidence credible and convicted
Sarcia as charged, sentencing him to suffer the
penalty of Reclusion Perpetua. On appeal, the CA
affirmed the conviction and increased the penalty
to death, holding that Sarcia may not be
considered a minor at the time of the commission
of the offense, as he reached 18 years of age in
1996.
Issue: Whether Sarcia may be deemed a minor at
the time of the commission of the crime.
Ruling: CA decision AFFIRMED with
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MODIFICATION: death penalty is reduced to
reclusion perpetua.
The guilt of Sarcia having been established beyond
reasonable doubt, we discuss now the proper
penalty to be imposed on him.
Article 335 of the Revised Penal Code, as amended
by Republic Act No. 7659, was the governing law
at the time Sarcia committed the rape in question.
Under the said law, the penalty of death shall be
imposed when the victim of rape is a child below
seven years of age. In this case, as the age of AAA,
who was five (5) years old at the time the rape was
committed, was alleged in the information and
proven during trial by the presentation of her birth
certificate, which showed her date of birth as
January 16, 1991, the death penalty should be
imposed.
However, this Court finds ground for modifying
the penalty imposed by the CA. We cannot agree
with the CA's conclusion that Sarcia cannot be
deemed a minor at the time of the commission of
the offense to entitle him to the privileged
mitigating circumstance of minority pursuant to
Article 68(2) of the Revised Penal Code. When
Sarcia testified on March 14, 2002, he admitted that
he was 24 years old, which means that in 1996, he
was 18 years of age. As found by the trial court, the
rape incident could have taken place "in any month
and date in the year 1996." Since the prosecution
was not able to prove the exact date and time when
the rape was committed, it is not certain that the
crime of rape was committed on or after he
reached 18 years of age in 1996. In assessing the
attendance of the mitigating circumstance of
minority, all doubts should be resolved in favor
of the accused, it being more beneficial to the
latter. In fact, in several cases, this Court has
appreciated this circumstance on the basis of a lone
declaration of the accused regarding his age.
Under Article 68 of the Revised Penal Code, when
the offender is a minor under 18 years, the penalty
next lower than that prescribed by law shall be
imposed, but always in the proper period.
However, for purposes of determining the proper
penalty because of the privileged mitigating
circumstance of minority, the penalty of death is
still the penalty to be reckoned with. Thus, the
proper imposable penalty for Sarcia is reclusion
perpetua.
Meanwhile, when Sarcia was detained at the New
Bilibid Prison pending the outcome of his appeal
before this Court, Republic Act (R.A.) No. 9344
took effect on May 20, 2006. The RTC decision
and CA decision were promulgated on January 17,
2003 and July 14, 2005, respectively. The
promulgation of the sentence of conviction of
Sarcia handed down by the RTC was not
suspended as he was about 25 years of age at that
time, in accordance with Article 192 of Presidential
Decree (P.D.) No. 603, The Child and Youth Welfare
Code and Section 32 of A.M. No. 02-1-18-SC, the
Rule on Juveniles in Conflict with the Law. Sarcia is now
approximately 31 years of age. He was previously
detained at the Albay Provincial Jail at Legaspi City
and transferred to the New Bilibid Prison,
Muntinlupa City.
R.A. No. 9344 provides for its retroactive
application xxx to those who have been convicted
and are serving sentence at the time of the
effectivity of this said Act, and who were below the
age of 18 years at the time of the commission of
the offense. With more reason, the Act should
apply to this case wherein the conviction by the
lower court is still under review. Hence, it is
necessary to examine which provisions of R.A. No.
9344 shall apply to Sarcia, who was below 18 years
old at the time of the commission of the offense.
Sec. 38 of R.A. No. 9344 provides for the
automatic suspension of sentence of a child in
conflict with the law, even if he/she is already
18 years of age or more at the time he/she is
found guilty of the offense charged.
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The above-quoted provision makes no
distinction as to the nature of the offense
committed by the child in conflict with the law,
unlike P.D. No. 603 and A.M. No. 02-1-18-SC.
The said P.D. and Supreme Court (SC) Rule
provide that the benefit of suspended sentence
would not apply to a child in conflict with the law
if, among others, he/she has been convicted of an
offense punishable by death, reclusion perpetua or life
imprisonment. In construing Sec. 38 of R.A. No.
9344, the Court is guided by the basic principle of
statutory construction that when the law does not
distinguish, we should not distinguish. Since R.A.
No. 9344 does not distinguish between a minor
who has been convicted of a capital offense
and another who has been convicted of a lesser
offense, the Court should also not distinguish
and should apply the automatic suspension of
sentence to a child in conflict with the law who
has been found guilty of a heinous crime.
Nonetheless, while Sec, 38 of R.A. No. 9344
provides that suspension of sentence can still be
applied even if the child in conflict with the law is
already eighteen (18) years of age or more at the
time of the pronouncement of his/her guilt, Sec.
40 of the same law limits the said suspension
of sentence until the said child reaches the
maximum age of 21.
To date, Sarcia is about 31 years of age, and the
judgment of the RTC had been promulgated, even
before the effectivity of R.A. No. 9344. Thus, the
application of Sees. 38 and 40 to the suspension of
sentence is now moot and academic. However,
Sarcia shall be entitled to appropriate
disposition under Sec. 51 of R.A. No. 9344,
which provides for the confinement of
convicted children [in agricultural camp and
other training facilities in lieu of confinement
in a regular penal institution] [end].
People v. Mantalaba, G.R. No. 186227, 20 July
2011
Facts: The police conducted a buy-bust operation
against a suspected shabu seller, 17-year old Allen
Mantalaba. The operation yielded 2 sachets of
shabu from Mantalaba. He was arrested, and two
informations for violation of Secs. 5 & 11 of RA
9165 were filed in the RTC of Butuan City against
Mantalaba.
The RTC convicted Mantalaba for illegal sale and
illegal possession of shabu and sentenced him a
penalty of reclusion perpetua (for the sale) and 6y1d
min to 8y as max of prision mayor (for possession).
The CA affirmed in toto the RTC decision.
Issue: Whether the prosecution failed to prove his
guilt.
Ruling: CA decision AFFIRMED with
MODIFICATION: the penalty that should be imposed
on Mantalaba’s conviction of violation of Section 5 of RA
9165, is six (6) years and one (1) day of prision mayor, as
minimum, and fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal, as maximum.
Anent the age of Mantalaba when he was arrested,
this Court finds it appropriate to discuss the effect
of his minority in his suspension of sentence.
Mantalaba was seventeen (17) years old when the
buy-bust operation took place or when the said
offense was committed, but was no longer a minor
at the time of the promulgation of the RTC's
Decision.
It must be noted that RA 9344 took effect on May
20, 2006, while the RTC promulgated its decision
on this case on September 14, 2005, when
Mantalaba was no longer a minor. The RTC did
not suspend the sentence in accordance with
Article 192 of The Child and Youth Welfare Code and
Section 32 of the Rule on Juveniles in Conflict with the
Law, the laws that were applicable at the time of
the promulgation of judgment, because the
imposable penalty for violation of Section 5 of RA
9165 is life imprisonment to death.
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It may be argued that Mantalaba should have been
entitled to a suspension of his sentence under
Sections 38 and 68 of RA 9344 which provide for
its retroactive application.
However, this Court has already ruled in People v.
Sarcia that while Section 38 of RA 9344 provides
that suspension of sentence can still be applied
even if the child in conflict with the law is already
eighteen (18) years of age or more at the time of
the pronouncement of his/her guilt, Section 40 of
the same law limits the said suspension of sentence
until the child reaches the maximum age of 21.
Hence, Mantalaba, who is now beyond the age
of twenty-one (21) years can no longer avail of
the provisions of Sections 38 and 40 of RA 9344
as to his suspension of sentence, because such
is already moot and academic. It is highly noted
that this would not have happened if the CA, when
this case was under its jurisdiction, suspended the
sentence of Mantalaba. The records show that the
appellant filed his notice of appeal at the age of 19
(2005), hence, when RA 9344 became effective in
2006, Mantalaba was 20 years old, and the case
having been elevated to the CA, the latter should
have suspended the sentence of Mantalaba because
he was already entitled to the provisions of Section
38 of the same law, which now allows the
suspension of sentence of minors regardless of the
penalty imposed as opposed to the provisions of
Article 192 of P.D. 603.
Nevertheless, he shall be entitled to appropriate
disposition under Section 51 of RA No. 9344
[end].
WHAT IS AN ACT OF DISCERNMENT?
In the case of Madali vs People, there is an act of
discernment when the minor knows the
consequences and circumstances of his act.
Discernment is that mental capacity of a minor to
fully appreciate the consequences of his unlawful
act. Such capacity may be known and should be
determined by taking into consideration all the
facts and circumstances.
In this case, the accused who was 16 years old at
the time of the commission of the crime, warned
the witness not to reveal their hideous act,
otherwise, he (accused) and his co-accused would
kill him. Therefore, he knew that killing the victim
was a condemnable act and should be kept in
secrecy. He fully appreciated the consequences
for his unlawful act.
Madali & Madali v. People, G.R. No. 180380,
4 August 2009
Facts: Petitioners Raymund and Rodel Madali and
Bernardino Maestro were charged with murder in
the RTC of Romblon for the death of a 15-yr old
boy, AAA.
On the evening of 13 April 1999, AAA, along with
his cousin Jovencio, Raymund (14 yrs old), Rodel
(16 yrs old), Bernardino went atop the reservoir
near beside a high school. Bernardino blindfolded
AAA and blurted out once blurted out, "Join the
rugby boys." AAA replied, "That's enough."
Bernardino then struck AAA thrice with a fresh
and hard coconut frond. AAA lost his balance and
was made to stand up by Raymund, Rodel and
Bernardino. Raymund took his turn clobbering
AAA at the back of his thighs with the same
coconut frond. AAA wobbled. Before he could
recover, he received punches to his head and body
from Rodel, who was wearing brass knuckles. The
punishments proved too much, as AAA lost
consciousness.
Not satisfied, Raymund placed his handkerchief
around the neck of AAA, with its ends tied to a
dog chain. With the contraption, the three
malefactors pulled the body up a tree. Stunned at
the sight of his cousin being ill-treated, Jovencio
could only muster a faint voice saying "Enough"
every single-time AAA received the painful blows.
Bernardino, who seemed to suggest finishing off
the victim, remarked, "Since we're all here, let's get on
with it." Before leaving the scene, the three
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assailants warned Jovencio not to reveal the
incident to anyone, or he would be next.
The RTC found the three guilty of homicide,
applying the privileged mitigating circumstance of
minority in their favor, and sentenced them to
suffer indeterminate sentence of four (4) years, two
(2) months and one (1) day to six (6) years.
Bernardino applied for probation while the
Madalis appealed to the CA.
The CA affirmed the conviction. However, it
applied RA 9344 and dismissed Raymund’s case.
Rodel was sentenced to 6m1d of prision correctional
to 8y1d of prision mayor, but the imposition of the
penalty was suspended pursuant to RA 9344.
Issue: Whether the testimony of Jovencio was
credible to sustain a judgment of conviction.
Ruling: Appeal DENIED.
As to the criminal liability, Raymond is exempt. As
correctly ruled by the Court of Appeals, Raymund,
who was only 14 years of age at the time he
committed the crime, should be exempt from
criminal liability and should be released to the
custody of his parents or guardian pursuant to
Sections 6 and 20 of Republic Act No. 9344.
Although the crime was committed on 13 April
1999 and Republic Act No. 9344 took effect only
on 20 May 2006, the said law should be given
retroactive effect in favor of Raymund who was
not shown to be a habitual criminal. This is based
on Article 22 of the Revised Penal Code.
While Raymund is exempt from criminal liability,
his civil liability is not extinguished pursuant to the
second paragraph of Section 6, Republic Act No.
9344.
As to Rodel's situation, it must be borne in mind
that he was 16 years old at the time of the
commission of the crime. A determination of
whether he acted with or without discernment is
necessary pursuant to Section 6 of Republic Act
No. 9344.
Discernment is that mental capacity of a minor
to fully appreciate the consequences of his
unlawful act. Such capacity may be known and
should be determined by taking into
consideration all the facts and circumstances
afforded by the records in each case.
The Court of Appeals could not have been more
accurate when it opined that Rodel acted with
discernment. Rodel, together with his cohorts,
warned Jovencio not to reveal their hideous act to
anyone; otherwise, they would kill him. Rodel
knew, therefore, that killing AAA was a
condemnable act and should be kept in secrecy. He
fully appreciated the consequences of his unlawful
act.
The penalty for homicide under Article 249 of the
Revised Penal Code is reclusion temporal. Pursuant to
Article 68, the maximum penalty should be within
prision mayor, which is a degree lower than reclusion
temporal. Absent any aggravating or mitigating
circumstance, the maximum penalty should be in
the medium period of prision mayor or 8 years and 1
day to 10 years. Applying the Indeterminate
Sentence Law, the minimum should be anywhere
within the penalty next lower in degree, that is,
prision correccional. Therefore, the penalty imposed
by the Court of Appeals, which is 6 months and
one day of prision correccional to 8 years and one day
of prision mayor, is in order. However, the
sentence to be imposed against Rodel should
be suspended pursuant to Section 38 of
Republic Act No. 9344 [end].
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4. Accident
Elements (People v. Dela Cruz):
1. A person is performing a lawful act,
2. He was performing the lawful act with
due care,
3. He causes injury to another by mere
accident,
4. The injury is without fault or intent on
the part of the offender
Note that although exempting, as a rule, there is
no criminal liability but there is civil liability.
However, paragraph 4 (accident) is an exception.
There are no criminal liability and civil liability.
Accident is akin to justifying circumstance
because the offender was performing a lawful act
with due care.
People v. Dela Cruz, G.R. No. 187683, 11
February 2010
Facts: Victoriano Dela Cruz was charged with
parricide in an information filed in the RTC of
Malolos, for the killing of his wife Anna Liza.
Victoriano was seen punching and kicking Anna
Liza in front of their house. He then dragged her
inside the house by pulling her hair. The spouses
were heard shouting inside. Suddenly, Victoriano
and Anna and their daughter came out of the
house, with Victoriano’s arms around her, and
with blood spurting out of Anna’s mouth. Anna
died due to hemorrhagic shock as a result of a stab
wound.
Victoriano claimed that the incident was an
accident. He came home drunk, causing Anna to
nag him. He asked her to go inside the house but
she refused, so he slapped Anna and dragged her
inside the house. Due to her continuous nagging,
Victoriano pushed her aside so he can go out of
the house. However, she fell in a jalousie window,
breaking it in the process. Her back was punctured
by a piece of broken glass.
The RTC convicted him of parricide, and the CA
affirmed the RTC.
Issue: Whether the death of Anna was accidental.
Ruling: Appeal DENIED.
Even if, for the sake of argument, we consider
Victoriano's claim that the injury sustained by his
wife was caused by an accident, without fault or
intention of causing it, it is clear that Victoriano
was not performing a lawful act at the time of the
incident. Before an accused may be exempted from
criminal liability by the invocation of Article 12
(paragraph 4) of the RPC, the following elements
must concur:
1. a person is performing a lawful act
2. with due care, and
3. he causes an injury to another by mere accident
and
4. without any fault or intention of causing it.
For an accident to become an exempting
circumstance, the act that causes the injury has to
be lawful. Victoriano's act of physically maltreating
his spouse is definitely not a lawful act. To say
otherwise would be a travesty -- a gross affront to
our existing laws on violence against women [end].
Situation:
A is a prisoner. He was about to be investigated
and was escorted to the investigation room.
Before reaching the investigating room, A
grabbed the service pistol of the officer who was
accompanying him to the investigating room. The
police tried to get back his pistol, and in the
course of the fight, the pistol was fired
accidentally and A was hit. Thereafter, A died. The
police officer was prosecuted for homicide.
Let's go by the elements:
1st: a person is performing a lawful act
The police officer was trying to get back his
property, and that is his pistol.
2nd performing a lawful act with due care.
He caused an injury by accident. He was
performing an act with due care, and there's no
other way to get back the pistol.
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3rd: he causes an injury through accident There
was no intention on his part to kill A.
What if a police officer saw two men fighting on a
street. They were hitting each other. The police
tried to pacify the two men, but they won’t stop.
So what the police officer did was that he fired
shots to pacify the men. However, one of the stray
bullets landed on the child. Unfortunately the
child died. The police officer was prosecuted for
homicide. As a defense, the police officer invoked
accident
Let's go by the elements:
1st: a person is performing a lawful act
The police officer is performing a lawful act. The
two men are fighting on the street
2nd: performing act with due care
The second element is not present. Considering
that it was a community, he knew that a stray
bullet would have landed on any person. He
should not have fired shots. The police officer is
liable for reckless imprudence resulting to
homicide, a culpable felony.
Ex. X went to the forest. In the said forest, hunting
birds is allowed. He was going to hunt birds in the
forest. He forgot his rifle so he passed by a nipa
hut to borrow a rifle. He was given an armalite. He
went back to the forest and in the middle of the
forest, he saw birds so he pulled out the said
armalite and fired at the birds. But a bullet hit a
stone and the stone flew hitting Y, one of those
manning the forest. Y died. X was arrested and
prosecuted for reckless imprudence resulting to
homicide. X said he cannot be held liable because
it was merely an accident. Will the EC of accident
lie in his favor?
No, there was no accident and he should be held
liable for reckless imprudence resulting to
homicide. The first element, he was performing a
lawful act. Hunting was allowed and he went there
precisely to hunt birds. Second, he must be
performing a lawful act with due care. This
element is absent because in hunting birds, even if
allowed, you do not use armalite to hunt birds.
Even if a person is performing a lawful act, if he
does not do so with due care, he would be held
criminally liable for a culpable felony (negligence
on the part of accused).
Ex. X tried to hack Y. Y evaded the blow. When
X tried to hack Y again, they grappled for the
possession of the said bolo. Y with all his might
tried to obtain possession of the bolo and he did.
However, the tip of the bolo hit C, who was at the
back of Y. C unknown to Y was at the back. C
obtained a fatal wound but survived. So Y was
prosecuted for frustrated homicide. He said it was
purely an accident. Will accident as an EC lie in
favor of Y?
Y was performing a lawful act, he was trying to
defend himself so he was trying to get the bolo
from X who was trying to hack him. Was he
performing it with due care? There is no other way
to get that bolo but to wrestle for its possession.
He was performing it with due care. The injury was
caused by accident. He did not know that C was
passing by. There was no intent or fault on the part
of Y so he is civilly and criminally liable.
5th-Irresistible Force & 6th-Uncontrollable
Fear
The basis of both would be lack of freedom of
action. There must be totally no freedom of
choice. If although there is uncontrollable fear or
irresistible force, if he still has a choice, these EC
will not lie.
5. Irresistible force
Elements of irresistible force:
1. Compulsion is by means of physical
force,
2. Physical force must be irresistible,
3. Physical force must come from a third
person
In irresistible force, the offender must be reduced
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as a mere instrument; that he is not acting in his
will. Therefore, if he is acting against his will,
voluntariness is absent.
6. Uncontrollable fear
Elements of uncontrollable fear:
1. Existence of an uncontrollable fear,
2. Fear must be real and imminent,
3. Fear of an injury is greater than or
equal to that committed.
It is necessary by the means employed by the
third person would cause a person to suffer
uncontrollable fear. Again, he is reduced as a
mere instrument such that he acted against his
will. It is necessary that such fear must be of
imminence that an ordinary man cannot stand.
When there is an existence of uncontrollable
force or fear there is lack of freedom of action—
an element of voluntariness. Therefore, the
person totally has no free will.
Even if there was force employed but the person
has a choice to do the act or not, this exempting
provision will not lie.
Five robbers entered a bank and they told the
employees to lie on the floor. One of the bank
robbers was guarding the employees. Then a robber
took hold of an employee and placed him before the
bank manager. He threated the general manager that
he will shoot the employee if he does not open the
vault. Only the manager knew the combination of
the said vault. The manager did not believe so he did
not open the vault. A who was true to his word shot
the employee who immediately died. He then
pointed the gun to the manager and said that if he
did not open the vault, the next bullet would be on
his head. Afraid, the manger opened the said vault
and the robbers were able to take all the money. The
robbers escaped but were later apprehended. The
manager was arrested and charged as a principal by
indispensable cooperation. Manager however said
that he acted based on uncontrollable fear and
irresistible force. Will he be exempted? Was there a
physical force employed on him? Was the physical
force irresistible and did it come from a third
person?
The said physical force was irresistible that he would
be killed is irresistible. He knew that the employee
was shot and he too can be shot. And it comes from
a third person
Likewise, there was uncontrollable fear. All the
elements were present. The bank robber already shot
the employee and he too could be shot. The fear is
real and imminent and it is not in the future, it is in
the present. It is about to happen. And the fear for
his life is greater than all the money in that vault.
Therefore, he is exempt.
Another situation:
A farmer and his carabao was on his way home.
On his way home, he heard gun shots, so he went
to the place where he heard the gun shots. He hid
behind a tree and saw two men shooting X. X way
already lying on the ground. The farmer was so
shocked and afraid that he tried to leave the place.
However, when he was about to leave, he stepped
on the dried leaves and caused a noise. The two
men saw him. One of the men pointed the gun at
the farmer and told him to come near them.
Afraid for his life, the farmer obeyed. The men,
pointing the gun at the farmer told him to bury X
lying on the ground. The farmer said, "No, I don't
want to." "If you will not bury X, we will shoot
you", said one of the men. The farmer was so
afraid and so he dug the ground and buried X. Is
the farmer criminally liable together with the two
men?
Let's go by the elements
1st Existence of an uncontrollable fear
There was an uncontrollable fear. The farmer saw
that the two men shot X. If the two men can shoot
X, they can also shoot him. Therefore, there was
an uncontrollable fear
2nd: Fear must be real and imminent It was
present. And the fear was present.
3rd Fear of an injury is greater than or equal to
that committed It was also present; his fear for his
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life satisfies this element. His life is more
important.
Therefore all the elements are present, he is not
liable
SAME PROBLEM. "If you will not bury X, we will
shoot and kill your carabao". The farmer was so
afraid. His carabao was his only means of living.
And so, he buried X. Is he criminally liable
together with the two men?
1st Existence of an uncontrollable fear
There was an uncontrollable fear, it is real and
imminent. The farmer saw that the two men shot
X. If the two men can shoot X, they can also shoot
the carabao. Therefore, there was an
uncontrollable fear
2nd: Fear must be real and imminent
It was present. Fear was present in this case, as
the men will shoot his carabao, his only means of
living.
3rd Fear of an injury is greater than or equal to
that committed The third element is wanting. The
death of the carabao is not equal to or greater
than the life of the human.
What if in the same problem, the two men told the
farmer that if the farmer will not bury X, they will
go to his house, rape his wife, thereafter kill her
and his children and burn his house. His family is
the most important people in his life. Therefore,
he was constrained to bury X. is he criminally
liable?
1st Existence of an uncontrollable fear
Yes, it is present. Imagine, his wife would be
raped, his children would be killed and his house
would be burned. Poor farmer.
2nd: Fear must be real and imminent
The 2nd element is not present. The fear is not
present. It is in the future, speculative. Imagine,
the two men would still have to go to the house of
the farmer and look for his wife and children. By
that time, the farmer had already gone to his
house and warned his family. He could also have
reported the killing of X. So his fear is not real
imminent. Imaginative not present.
This happened in the case of Vicky Ty. She was
accused of issuing bouncing checks. Vicky Ty's
defense was that she feared that her ailing mother
who was confined in the hospital would commit
suicide because of the hospital's ill treatment. So
she was compelled to issue unfunded checks for
her mother to be discharged. In this case, yes
there is an uncontrollable fear. However, her fear
was not real and imminent. It is mere imaginative,
speculative. It is not now, or not present.
Ty v. People, G.R. No. 149275, 27 September
2004
Facts: Seven informations for violation of BP 22
were filed against petitioner Vicky Ty before the
RTC of Manila. The prosecution alleged that the
mother and sister of Ty were patients of the Manila
Doctor’s Hospital. Ty executed a promissory note
secured by 7 postdated checks payable to the
hospital. They were all dishonored due to
insufficiency of funds, prompting the Hospital to
send demand letters to Ty but the letters went
unheeded.
Ty claimed that she issued the checks because of
an uncontrollable fear of a greater injury. She was
forced to do so to obtain the release of her mother
whom the hospital inhumanely and harshly treated
and would not discharge unless the hospital bills
are paid. The hospital deprived her mother of
room facilities, subjected the latter to
inconveniences, and suspended medical treatment.
The “debasing treatment” was so severe that her
mother contemplated suicide if she would not be
discharged from the hospital.
The RTC convicted Ty as charged, giving full
credence to the prosecution evidence and
disregarded Ty’s defense. On appeal, Ty reiterated
that she acted under the impulse of an
uncontrollable fear, and claimed the absence of
valuable consideration for the issuance of the
checks, and that the hospital had knowledge that
her bank account lacked funds, but the CA
rejected all her defenses
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Issue: Whether Ty was acting under the impulse
of an incontrollable fear of a greater injury when
she issued the 7 checks
Ruling: Petition DENIED.
The Court finds the petition to be without merit
and accordingly sustain Ty’s conviction.
The only question of law raised—whether the
defense of uncontrollable fear is tenable to warrant
her exemption from criminal liability—has to be
resolved in the negative. For this exempting
circumstance to be invoked successfully, the
following requisites must concur:
1) existence of an uncontrollable fear;
2) the fear must be real and imminent; and
3) the fear of an injury is greater than or at least
equal to that committed.
It must appear that the threat that caused the
uncontrollable fear is of such gravity and
imminence that the ordinary man would have
succumbed to it. It should be based on a real,
imminent or reasonable fear for one’s life or
limb. A mere threat of a future injury is not
enough. It should not be speculative, fanciful, or
remote. A person invoking uncontrollable fear
must show therefore that the compulsion was such
that it reduced him to a mere instrument acting not
only without will but against his will as well. It must
be of such character as to leave no opportunity to
the accused for escape.
In this case, far from it, the fear, if any, harbored
by Ty was not real and imminent. Ty claims that
she was compelled to issue the checks—a
condition the hospital allegedly demanded of her
before her mother could be discharged—for fear
that her mother’s health might deteriorate further
due to the inhumane treatment of the hospital or
worse, her mother might commit suicide. This is
speculative fear; it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that the
mother’s illness was so life threatening such that
her continued stay in the hospital suffering all its
alleged unethical treatment would induce a well-
grounded apprehension of her death. Secondly, it
is not the law’s intent to say that any fear exempts
one from criminal liability much less Ty’s flimsy
fear that her mother might commit suicide. In
other words, the fear she invokes was not
impending or insuperable as to deprive her of all
volition and to make her a mere instrument
without will, moved exclusively by the hospital’s
threats or demands.
Ty has also failed to convince the Court that she
was left with no choice but to commit a crime. She
did not take advantage of the many opportunities
available to her to avoid committing one. By her
very own words, she admitted that the collateral or
security the hospital required prior to the discharge
of her mother may be in the form of postdated
checks or jewelry. And if indeed she was coerced
to open an account with the bank and issue the
checks, she had all the opportunity to leave the
scene to avoid involvement.
Moreover, Ty had sufficient knowledge that the
issuance of checks without funds may result in a
violation of B.P. 22. She even testified that her
counsel advised her not to open a current account
nor issue postdated checks “because the moment
I will not have funds it will be a big problem.”
Besides, apart from Ty’s bare assertion, the record
is bereft of any evidence to corroborate and
bolster her claim that she was compelled or
coerced to cooperate with and give in to the
hospital’s demands [end].
How about state of necessity?
Let us go to the elements:
That the evil sought to be avoided actually exists
Is the threat of the mother actually exist? No,
because the threat is in the future. Therefore
state of necessity is not present. The Supreme
Court ruled that she was not in state of necessity.
Because she has several jewelries. She could have
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sold the jewelries to pay for the hospital expenses
7. Any person who fails to perform an act
required by law, when prevented by some
lawful or insuperable2 cause.
Elements of Art. 12, Par. 7:
1. An act is required by law to be done,
2. A person fails to perform such act,
3. The failure to perform such act was
due to some lawful or insuperable
cause.
The law requires the person to require a lawful
act, but was prevented because of an insuperable
cause. This is based on omission. Here the
offender is required by law to perform an act but
was prevented by some lawful insuperable cause.
Here, there is both no criminal and civil liability.
Note that it is one of the instances in exempting
circumstances that the actor is exempt from both
criminal and civil liability. It is akin to a justifying
circumstance because what prevented the offender
from performing a lawful act is a lawful cause.
For example, there is a war in which the
Philippines is involved. A, B, and C conspired to
commit treason against the government. A, one of
the conspirators went to the priest and confided
to the priest that there was conspiracy between B
and C to commit treason against the government.
Despite knowledge on the conspiracy to commit
treason, the priest did not immediately divulge it
to the police.
Under Art 116, the priest is criminally liable for
misprision of treason, for not divulging the
conspiracy to commit treason. However, the
priest failed to perform such act due to a lawful
cause. Under your rules on evidence, a confession
made to a priest is considered as a privileged
communication. Therefore the priest does not
incur any criminal liability.
2insuperable: incapable of being surmounted, overcome,
passed over, or solved
Article 13. Mitigating circumstances. - The
following are mitigating circumstances;
1. Those mentioned in the preceding chapter,
when all the requisites necessary to justify or
to exempt from criminal liability in the
respective cases are not attendant.
2. That the offender is under eighteen year of
age or over seventy years. In the case of the
minor, he shall be proceeded against in
accordance with the provisions of Art. 80.
3. That the offender had no intention to commit
so grave a wrong as that committed.
4. That sufficient provocation or threat on the
part of the offended party immediately
preceded the act.
5. That the act was committed in the immediate
vindication of a grave offense to the one
committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the
same degrees.
6. That of having acted upon an impulse so
powerful as naturally to have produced
passion or obfuscation.
7. That the offender had voluntarily
surrendered himself to a person in authority
or his agents, or that he had voluntarily
confessed his guilt before the court prior to
the presentation of the evidence for the
prosecution;
8. That the offender is deaf and dumb, blind or
otherwise suffering some physical defect
which thus restricts his means of action,
defense, or communications with his fellow
beings.
9. Such illness of the offender as would diminish
the exercise of the will-power of the offender
without however depriving him of the
consciousness of his acts.
10. And, finally, any other circumstances of a
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similar nature and analogous to those above
mentioned.
MITIGATING CIRCUMSTANCES (MC)
They are circumstances which if present or
attendant in the commission of a felony would
reduce the imposable penalty because it
shows lesser perversity or criminality of the
offender.
There is a lesser criminality on the part of the
offender because the offender acted with the
diminution of any of the elements of
voluntariness. There is a diminution on criminal
intent, freedom of action or intelligence.
In exempting, there is a total absence of any of
these elements of voluntariness. That's why the
offender is exempted from criminal liability.
In mitigating circumstances, there is no absence
of voluntariness but there is a diminution in
voluntariness because of diminution in any of
the elements of voluntariness - criminal intent,
freedom of action or intelligence.
Two kinds of mitigating circumstances:
Ordinary MC Privileged MC
May be offset by Can never be offset by
generic aggravating any aggravating
circumstances circumstance
If not offset, lowers Reduces the
the imposable penalty imposable penalty by
to its minimum one or two degrees
period, [provided the depending on the
penalty is divisible] rules on Arts. 68 & 69
NOTE: If in the computation of penalties there are
aggravating circumstances, mitigating
circumstances, and if there is a PMC, that
presence of PMC takes preference over all other
things. Before you can even the appropriate
penalty, you still have to first consider the
presence of the PMC. That is how important that
is why it's privileged.
Mariano v. People, G.R. No. 178145, 7 July 2014
Facts: Petitioner Reynaldo Mariano was charged
with frustrated homicide in the RTC of Bulacan.
He hit and bumped the victim De Leon when
Mariano tried to overtake De Leon’s owner-type
jeep. After the incident Mariano dropped off his
passengers and turned himself over to the police.
The RTC convicted him as charged, but the CA
held that Mariano committed reckless
imprudence resulting in serious physical injuries.
Issue: Whether the MC of voluntary surrender
should have been appreciated in Mariano’s favor.
Ruling: Petition DENIED.
Contrary to the Mariano’s insistence, the
mitigating circumstance of voluntary surrender
cannot be appreciated in his favor. Paragraph
5 of Article 365, Revised Penal Code, expressly
states that in the imposition of the penalties,
the courts shall exercise their sound discretion,
without regard to the rules prescribed in
Article 64 of the Revised Penal Code. “The
rationale of the law,” according to People v.
Medroso, Jr. can be found in the fact that “in
quasi-offenses penalized under Article 365, the
carelessness, imprudence or negligence which
characterizes the wrongful act may vary from
one situation to another, in nature, extent, and
resulting consequences, and in order that there
may be a fair and just application of the
penalty, the courts must have ample discretion
in its imposition, without being bound by what
We may call the mathematical formula provided
for in Article 64 of the Revised Penal Code. On
the basis of this particular provision, the trial
court was not bound to apply paragraph 5 of
Article 64 in the instant case even if appellant
had two mitigating circumstances in his favor
with no aggravating circumstance to offset
them” [end].
1. Those mentioned in the preceding chapter,
when all the requisites necessary to justify or to
exempt from criminal liability in the respective
cases are not attendant.
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Incomplete justifying or exempting
circumstance.
This is the case when all the elements necessary
to justify the act or to exempt the criminal
liability in their respective cases are not
attendant.
How would you know if an incomplete JC or EC
should be treated as an OMC or as a PMC?
1. If majority of the elements necessary to
justify the act or to exempt from liability are
present, then it's treated as PMC.
2. If less than the majority is present, then it is
an OMC which can be offset by a generic AC.
3. If the elements necessary to justify the act or
to exempt from criminal liability is only 2, the
presence of 1 element is already a PMC.
In case of inc. self-defense, inc. defense of a
relative, inc. defense of a stranger, there must
always be unlawful aggression in order for the mc
to mitigate. If only the element of unlawful
aggression is present, the inc. self-defense should
be treated as an OMC. If aside from unlawful
aggression, another element but not all are
present, it is to be treated as a PMC. If all elements
are present, then it is a JC.
Ex. A was running in a subdivision with a bolo, he
was hacking all those he passed by. So the
residents called for police assistance. The police
arrived headed by police officer X. They called on
A to put down his weapon but A instead of laying
down his weapon, advanced towards the police
with the bolo in his hands in a hacking position in
the act of hacking the police officers. So X
immediately fired at A. He hit the hands and legs
of A. non-fatal wounds. A slam on the ground face
facing the ground. At that particular moment, X
went to A, got his bolo and then fired shot at the
head of A and A died. X was prosecuted for
murder, police officer invoked 2 JC. We have self-
defense and fulfillment of duty. Is there self-
defense or at least inc. self-defense?
There's no self-defense because at the time X shot
the head of A, A was already lying on the ground.
Whatever inceptive unlawful aggression he has
commenced, it has ceased to exist from the time
the fatal blow was inflicted on him. Therefore,
there was no unlawful aggression. Since unlawful
aggression is the element that is wanting. There's
no self-defense, neither is there inc. self-defense.
Second, is there fulfillment of duty or at least inc.
fulfillment of duty?
There are only 2 elements in fulfillment of duty,
1st element - that the accused acted in the due
performance of his duty or in lawful exercise of
his proper office. It is present right because the
police officer went there because the residents
asked for police assistance. They went there to
maintain peace and order. The 1st element is
present.
The 2nd element - that the injury caused is an
unavoidable consequence of the due performance
of a duty. The 2nd element is absent. The act of X
in shooting the head of A is not a necessary
consequence of the due performance of his duty.
Therefore, based on the rule that if there are only
2 elements necessary to justify the act and the
presence of 1 is already considered as the
majority and it is considered as a PMC. Therefore,
in this case, there is an inc. fulfillment of duty
which is a PMC which may lower the imposable
penalty by degrees not only by period.
2. That the offender is under eighteen year of age
or over seventy years. In the case of the minor,
he shall be proceeded against in accordance
with the provisions of Art. 80. [NOTE: see Sec.
6, RA 9344. It is now “over 15 but below 18”]
There are two MCs here:
1. Minority
2. Seniority
Remember that if minority is not exempting,
it is always and always a PMC. Never an OMC!
So if the offender is over 15 but below 18, and he
acted with discernment, it is not exempting but it
is a PMC.
Seniority or being over 70 years of age is a
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mere OMC.
[Prosecutor Garcia: In your book there are
instances wherein seniority [was] considered as
a PMC, when the crime committed by the person
over 70y/o is punishable by death, death shall not
be imposed on him. Or when he has already been
convicted it shall be computed to reclusion
perpetua. These provisions of the RPC are no
longer applicable at the moment because we have
RA 9346 which prohibits the imposition of death
penalty on whoever be the offender. Then
seniority, at the moment is only an OMC. I am
emphasizing 'at the moment' because at the
moment the reign of P.Noy ends, the new
president may bring back death penalty. Then
there will now be again a circumstance where
seniority will be a PMC. But at the moment, we
have no death penalty that may be imposed.]
Legal effects of the various age brackets of the
offender with respect to his criminal liability
(GN 2016)
Age Effect on criminal liability
Bracket
15 and Exempting circumstance
under
Over 15, Exempting circumstance if he acted
under 18 without discernment;
[PMC] if he acted with discernment
18 to 70 Full criminal responsibility
Over 70 [OMC as there is] no imposition of
death penalty; [if death sentence
was already imposed, the same is
suspended and commuted].
3. That the offender had no intention to commit
so grave a wrong as that committed.
Praeter Intentionem (See Art. 4).
Elements of Praeter Intentionem:
1. The offender committed a felony;
2. A notable or notorious disparity between
the means employed by offender and the
resulting felony.
For praeter intentionem to lie as an MC, it is
necessary that there must be a notable or
notorious disparity between the means employed
and the resulting felony. That is, out of the means
employed by the offender, no one could have
anticipated that the resulting felony would come.
Ex. A and B were fighting, A boxed B, B boxed A, A
retaliated and boxed B again. When A boxed B, B's
head hit a cemented wall and so he suffered
cerebral hemorrhage and thereafter caused his
death. Is A criminally liable for the death of B?
Yes, because when he boxed B, he was committing
a felonious act. Therefore he is criminally liable
for the resulting felony although it be different
from which he intended.
But can he be given the benefit of praeter
intentionem that he has no intention to commit so
grave a wrong as that committed?
>Yes, because there was a notable disparity
between the means employed by the offender and
the resulting felony. Who could have anticipated
that by the mere act of boxing death would result.
Therefore, he should be given the benefit of
prater intentionem.
What if in the same problem A and B were fighting
by means of fist, the suddenly, A who was losing
pulled out a balisong or a fan knife and stabbed B
on the neck, a fatal wound. B died. A was
prosecuted for homicide. He said he had no
intention to commit a wrong so grave as that
committed, no intention to kill B. Will his defense
lie? Will the mc lie in his favor?
>No, because there was no notable disparity in
the between means employed - stabbing on the
neck using a balisong or fan knife resulting to
death. In fact, the act of the victim of stabbing
would produce, and did produce the death of the
victim. Therefore, praeter intentionem would not
lie in favor of the accused.
Urbano v. People, G.R. No. 182750, 20 January
2009
Ruling: The mitigating circumstance that
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Urbano had no intention to commit so grave
a wrong as that committed should also be
appreciated in his favor. While intent to kill
may be presumed from the fact of the death
of the victim, this mitigating factor may still
be considered when attendant facts and
circumstances so warrant, as in the instant case.
Consider: Urbano tried to avoid the fight,
being very much smaller than Tomelden. He
tried to parry the blows of Tomelden, albeit
he was able, during the scuffle, to connect a
lucky punch that ended the fight. And lest it
be overlooked, petitioner helped carry his
unconscious co-worker to the office of the
LIWAD's general manager. Surely, such gesture
cannot reasonably be expected from, and would
be unbecoming of, one intending to commit
so grave a wrong as killing the victim. A bare-
knuckle fight as a means to parry the challenge
issued by Tomelden was commensurate to the
potential violence petitioner was facing. It was
just unfortunate that Tomelden died from that
lucky punch, an eventuality that could have
possibly been averted had he had the financial
means to get the proper medical attention.
Thus, it is clear that the mitigating circumstance
of "no intention to commit so grave a wrong
as that committed" must also be appreciated in
favor of petitioner while finding him guilty of
homicide. That Urbano landed a lucky punch
at Tomelden's face while their co-workers were
trying to separate them is a compelling
indicium that he never intended so grave a
wrong as to kill the victim [end].
4. That sufficient provocation or threat on the
part of the offended party immediately preceded
the act.
Elements of Art. 13, Par. 4:
1. The provocation must be sufficient;
a. Must be adequate to stir a person to
commit a wrongful act;
b. It must be proportionate to the
gravity of the crime.
2. The provocation must originate from the
offended party;
3. The provocation must be immediate from
the commission of the criminal act by the
person who was provoked.
PROVOCATION is any unjust or immoral act or
conduct on the part of the offended party which
is capable of inciting, exciting or irritating
another.
The 3rd element requires that the provocation
must be immediate to the commission of the
crime.
The word immediate here does not allow a
lapse of time between the provocation and the
commission of the crime. Right after the
provocation given by the offended party, the
offender must have performed the said criminal
act.
Provocation must be from the offended party
NOT a third person.
Ex. There was this long line of evacuees, victims
of [typhoon] Pablo who are to be given reliefs. A
was 5th on the line, suddenly, X inserted himself in
front of A. This angered A, A told X to place
himself at the end of the line but X didn't want
because he was so hungry. This angered A, and so
A pulled out his bolo and hacked X at the back. A
was prosecuted for homicide, is the mc of
sufficient provocation on the part of the offended
party justified?
Yes, there was on the part of X. Nakakainis kaya.
Nakapilakatapos may sumingit. Sinong hindi
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maiinis, sinong hindi mae-excite. So the 1st
element is present, it is adequate to stir a person
to commit a wrongful act. However the 2 nd
element is absent - it is not proportionate to the
gravity of the act. The act of killing is not
proportionate to the act of X of placing himself in
front of A in a long line. Therefore, sufficient
provocation as a MC is not present so as to reduce
the imposable penalty.
Urbano v. People
The victim has always been calling and teasing on
the accused Urbano. So there was a confrontation
because whenever the victim was drunk, he
would defame Urbano. So there was a verbal
confrontation and ensued into a fight. In the said
fight, Urbano was losing because he was just a
small man. However, he was able to land one
lucky punch on the face of the victim (parang si
Pacquiao). Because of the said lucky punch, the
said victim was about to fall unconscious on the
ground. However, the other employees were able
to prevent him from falling on the ground.
Nevertheless, he became unconscious and later
on regained consciousness. In and out of the
hospital, later on he died. Is Urbano criminally
liable for the death of the victim?
>Yes, under Art. 4, because he was committing a
felonious act. Therefore he is criminally liable for
the resulting felony although different from that
which he intend.
But there are 2 MCs considered by the court to
reduce the imposable penalty.1st according to the
court, there was sufficient provocation. 2 nd, that
the offender has no intention to commit so grave
a wrong as that committed. Who could have
anticipated that out of one lucky punch, death
would result. There was a total disparity on the
means employed by the offender and the
resulting felony.
How about sufficient provocation, is it present?
>The SC said yes. The provocation was on the part
of the victim. He would always call names and
defame Urbano. Is it sufficient? Yes, because what
Urbano only did was to confront the victim
verbally. That was his first act, later on only did it
ensue to a fight.
Urbano v. People:
Ruling: When the law speaks of provocation
either as a mitigating circumstance or as an
essential element of self-defense, the reference
is to an unjust or improper conduct of the
offended party capable of exciting, inciting, or
irritating anyone; it is not enough that the
provocative act be unreasonable or annoying;
the provocation must be sufficient to excite
one to commit the wrongful act and should
immediately precede the act.
This third requisite of self-defense is present:
1) when no provocation at all was given to
the aggressor;
2) when, even if provocation was given, it was
not sufficient;
3) when even if the provocation was sufficient,
it was not given by the person defending
himself; or
4) when even if a provocation was given by
the person defending himself, it was not
proximate and immediate to the act of
aggression.
In the instant case, Tomelden's insulting
remarks directed at Urbano and uttered
immediately before the fist fight constituted
sufficient provocation. This is not to mention
other irritating statements made by the
deceased while they were having beer in
Bugallon. Urbano was the one provoked and
challenged to a fist fight [end].
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5. That the act was committed in the immediate
vindication of a grave offense to the one
committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the
same degrees.
Elements of immediate vindication of a grave
offense:
1. There be a grave offense to the one
committing the felony, his spouse,
ascendants, descendants, legitimate,
natural, or adopted brothers or sisters, or
relatives by affinity within the same
degree;
2. The said act or grave offense must be the
proximate cause of the commission of the
crime.
This grave offense need not be a punishable act. It
suffices that it be any act unjust act, immoral act
which cause the offender sleepless nights and
move him to vindicate himself.
The 2nd element requires that the commission of
crime was in immediate vindication of the grave
offense. This time the word immediate allows
a lapse of time. Why?
According to the SC [People v. Ignas], there was
an erroneous Spanish translation. Our RPC was
copied from the Spanish Codigo Penal, in there,
the word used there was proximate. Yet when it
was translated in the RPC, the word used was
immediate. SC said wrong translation. It is
sufficient that the said grave offense must be the
proximate cause of the commission of the crime.
Immediate allows the lapse of time, but not too
long a time that would cause the offender to
recover his normal equanimity.
People v. Ignas, G.R. Nos. 140514-15, 30
September 2003
Facts: In February 1996, appellant June Ignas
learned that his wife is having an affair with
Nemesio Lopate. On March 10, 1996, he shot to
death Lopate. Ignas voluntarily admitted to the
police that he shot Lopate. He was charged with
murder aggravated with the use of an unlicensed
firearm in the RTC of La Trinidad, Benguet, and
was found guilty of the same.
Issue: Whether the mitigating circumstances of
the immediate vindication of a grave offense and
passion and obfuscation should be appreciated in
Ignas’s favor.
Ruling: RTC decision MODIFIED, he is guilty
only of homicide.
We agree with the Solicitor General that the
lapse of two (2) weeks between his
discovery of his wife's infidelity and the
killing of her supposed paramour could no
longer be considered proximate. The passage
of a fortnight is more than sufficient time for
appellant to have recovered his composure and
assuaged the unease in his mind. The
established rule is that there can be no
immediate vindication of a grave offense
when the accused had sufficient time to
recover his serenity. Thus, in this case, we
hold that the mitigating circumstance of
immediate vindication of a grave offense
cannot be considered in appellant's favor [end].
6. That of having acted upon an impulse so
powerful as naturally to have produced passion
or obfuscation.
Paragraphs 4 and 5 are related to [this]
paragraph -otherwise known as sudden impulse
of passion and obfuscation.
Elements of sudden impulse of passion and
obfuscation:
1. There be an act both unlawful and
sufficient to produce passion and
obfuscation on the part of the offender;
2. The commission of the criminal act and the
said sudden impulse must not be far
removed from each other by the
considerable length of time during which
the offender might have recovered his
normal equanimity.
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The 1st element requires some unlawful or
unauthorized act done on the said offender and by
reason of this the offender has done an unlawful
act. The acts of the offender arose from lawful
sentiments because an unlawful act was committed
against him.
The 2nd element requires also the
immediateness. It is necessary that it must be
done immediately because the law says the
commission of the act which produced the
passion and obfuscation must not be far removed
from the commission of the crime by a
considerable length of time.
What if A attempted on the virtue of the wife of B,
B learned about this from a neighbor. When B
learned about this, 4 days after, he went to A and
hacked A to death. Is the crime committed, or is
the mc of sudden impulse of passion and
obfuscation and immediate vindication of grave
offense present?
In the case of People v. Resbuscano(?), the SC said
NO because 4 days had already lapsed. According
to the SC, 4 days is already a long time for the said
offender to have recovered from his normal
equanimity.
More so in the case of People v. Ignas, in this case,
from the time of the discovery of the adultery of
the wife, to the time of the killing, 2 weeks had
already lapsed, the SC said such 2 weeks is too
long a time for such offender to have recovered
already his normal equanimity.
Ignas: We likewise find the alleged mitigating
circumstance of passion and obfuscation
inexistent. The rule is that the mitigating
circumstances of vindication of a grave offense
and passion and obfuscation cannot be claimed at
the same time, if they arise from the same facts
or motive. In other words, if appellant attacked
his victim in proximate vindication of a grave
offense, he could no longer claim in the same
breath that passion and obfuscation also
blinded him. Moreover, for passion and
obfuscation to be well founded, the following
requisites must concur: (1) there should be an
act both unlawful and sufficient to produce
such condition of mind; and (2) the 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 moral equanimity
To repeat, the period of two (2) weeks which
spanned the discovery of his wife's extramarital
dalliance and the killing of her lover was
sufficient time for appellant to reflect and cool
off.
In the case of People v. Romera, the SC said par.4 -
sufficient provocation on the part of the offended
party, par.5 - immediate vindication of grave
offense, par.6 - sudden impulse of passion and
obfuscation are related to each other such that in
the commission of the crime, all three present, or
any 2 are present, if they are based on the same
facts and circumstances they should be
appreciated only as 1 MC, not 2 or 3. Why is it
important?
>It is important because in the computation of the
penalties, if you consider them as 3, you will be
wrong in the penalties.
*So again note, if Pars. 4, 5 and 6 are all
present or if any 2 is present and they are all
based on the same facts and circumstances,
they should only be treated as 1 MC.
Bongalon v. People, G.R. No. 169533, 20
March 2013
Although we affirm the factual findings of fact
by the RTC and the CA to the effect that the
petitioner struck Jayson at the back with his
hand and slapped Jayson on the face, we
disagree with their holding that his acts
constituted child abuse within the purview of
the above-quoted provisions. The records did
not establish beyond reasonable doubt that his
laying of hands on Jayson had been intended
to debase the “intrinsic worth and dignity” of
Jayson as a human being, or that he had
thereby intended to humiliate or embarrass
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Jayson. The records showed the laying of hands
on Jayson to have been done at the spur of
the moment and in anger, indicative of his
being then overwhelmed by his fatherly
concern for the personal safety of his own
minor daughters who had just suffered harm
at the hands of Jayson and Roldan. With the
loss of his self-control, he lacked that specific
intent to debase, degrade or demean the
intrinsic worth and dignity of a child as a
human being that was so essential in the crime
of child abuse.
The penalty for slight physical injuries is arresto
menor, which ranges from one day to 30 days
of imprisonment. In imposing the correct
penalty, however, we have to consider the
mitigating circumstance of passion or
obfuscation under Article 13 (6) of the Revised
Penal Code, because the petitioner lost his
reason and self-control, thereby diminishing the
exercise of his will power. Passion or
obfuscation may lawfully arise from causes
existing only in the honest belief of the
accused. It is relevant to mention, too, that in
passion or obfuscation, the offender suffers a
diminution of intelligence and intent. With his
having acted under the belief that Jayson and
Roldan had thrown stones at his two minor
daughters, and that Jayson had burned
Cherrlyn’s hair, the petitioner was entitled to
the mitigating circumstance of passion [end].
Ex. Husband and wife were about to have dinner.
Then someone was calling the name of the
husband outside their house. The wife opened the
door, upon opening, the neighbor who was calling
the name tried to hack the wife. Good enough, the
wife was able to reach and close the door and the
wife was not hacked. The neighbor however with
a use of a bolo continuously hacked the wooden
or the bamboo door and walls of the house. And
so, considering that his house was being
damaged, the husband was forced to go outside to
confront the neighbor. He used the kitchen door.
He called the neighbor and asked what was the
reason why he was hacking. The neighbor instead
of answering tried to hack the husband. They
struggled for the possession of the bolo, and in the
course the husband gained possession of the bolo.
Once in the possession of the bolo, the husband
hacked the neighbor. The neighbor suffered a
fatal wound but was brought to the hospital by
the husband and so he survived. Husband was
prosecuted for frustrated homicide, the husband
as a defense invoked 2 MCs - 1st, there was sudden
impulse of passion and obfuscation, 2nd that there
was sufficient provocation on the part of the
offended party immediately preceded the action.
Is sudden impulse of passion and obfuscation
present? Is sufficient provocation present?
>Yes, they are both present. There is sufficient
provocation because of the act of the neighbor
trying to hack the wife. And his act of
continuously hacking the wooden door and walls
of the house - that is sufficient provocation.
How about sudden impulse of passion and
obfuscation?
>Yes, it is also present. The act of the neighbor
trying to hack the wife and his act of continuously
hacking the wooden door and walls.
Now these 2 MC are based on the same facts and
circumstances. So if the question is 'what are the
MCs present?' or 'is the MC of sudden impulse of
passion and obfuscation present? Is the MC of
sufficient provocation present?'
>Yes, yes.
But if the question is 'what MC would you
consider?' Although both are present, you should
only consider them as 1 MC.
7. That the offender had voluntarily surrendered
himself to a person in authority or his agents,
or that he had voluntarily confessed his guilt
before the court prior to the presentation of the
evidence for the prosecution;
There are 2 separate and distinct MCs here:
1. Voluntary surrender
2. Voluntary plea of guilt
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If both are present, you have to consider always 2
MCs. They have different elements and would
always arise from different set of facts and
circumstances. Therefore, they are always
separate and distinct from each other.
Elements of voluntary surrender (People v.
Ignas):
1. The offender had not actually been
arrested;
2. The offender had surrendered himself to a
person in authority or his agent;
3. The surrender must be voluntary
Surrender is said to be voluntary when it is done
spontaneously and unconditionally either
because he has this feeling of remorse and
wanted to admit his guilt or he wanted to save
the government that much needed time or effort
which will be incurred in looking for him.
Ex. A case was filed against B in the fiscal’s office.
A warrant of arrest was requested, the fiscal
found probable cause. The information filed in
court, the court agreed with the fiscal, a warrant
of arrest was issued. B got a tip from the court
employee that a warrant of arrest was now in
possession of the police officers. And so B upon
learning that there was already an issued warrant
of arrest, immediately went to the police station
and surrendered himself to the authorities. Then
trial against him proceeded, and after trial on the
merits, he was convicted. But the judge did not
consider voluntary surrender in reducing his
imposable penalty. Is the judge correct?
The judge is wrong because voluntary surrender
is present as a MC. Although there is already a
warrant of arrest issued. The police officers have
not yet gone out looking for him. Therefore, any
surrender would still be considered as voluntary
surrender even if there is already a warrant of
arrest against the said offender.
Nizurtado v. Sandiganbayan & People, G.R. No.
107838, 7 December 1984
Facts: Nizurtado, Barangay Captain of Brgy.
Panghulo, Malabon, received a check worth
P10,000 from the Ministry of Human Settlements,
Metro Manila Commission (MMC) and the
Kilusang Kabuhayan and Kaunlaran under their
Livelihood Program for Barangays in Metro
Manila, consisting of P10,000 loans for each
barangay. The check could be encashed only upon
submission of a resolution approved by the
barangay council identifying the livelihood project
in which the loan would be invested. Petitioner
Nizurtado, the Barangay Captain of Brgy.
Panghulo, Malabon, received the P10,000 check
for his barangay’s livelihood program. He
entrusted the check to Romero, the Barangay
Treasurer.
The Barangay Council of Panghulo could not agree
on any livelihood project, thus Nizurtado got back
the check from Romero to return the same to the
MMC. A few days later, Nizurtado asked Romero
to sign an unaccomplished resolution in
mimeograph form, saying that the MMC was
hurrying up the matter and the livelihood project
to be stated in the resolution was that proposed by
Romero-a barangay service center. The
unaccomplished resolution already bore the
signatures of 5 Council members. When Romero
signed, the blank resolution did not bear yet the
signatures of 2 councilmen-including Gomez.
Upon Nizurtado’s request Romero asked Gomez
to sign, and the latter did.
Unknown to Romero and Gomez, the resolution
was later on accomplished, and it stated that the
Council had identified T-Shirt manufacturing as
the livelihood project. The resolution and other
supporting documents for encashment were
submitted by Nizurtado. Nizurtado was able to
encash the check, and he re-lent the cash proceeds
to himself, the members of the Barangay Council,
Barangay Court Secretary and Barangay Secretary.
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Later, Romero and Gomez were informed that
they have not yet made any remittance on account
of their P1,000 loan from the P10,000 barangay
livelihood fund. Since both had not borrowed any
amount of money from the barangay, Romero and
Gomez made inquiries. They learned that the blank
resolution was filled up to make it appear that the
Council met at a certain date and a T-shirt
manufacturing was decided as the livelihood
project. But there was no such meeting, and neither
was Nizurtado authorized by the council to submit
T-shirt manufacturing as the livelihood project.
Romero and Gomez filed a complaint against
Nizurtado in the Tanodbayan, and after
investigation the information against Nizurtado for
the complex crime of malversation of public funds
through falsification of public document was filed
before the Sandiganbayan. Afterwards, Nizurtado
remitted P8,000 to the MMC, and several years
later the remaining P2,000 was remitted by the
acting Barangay Captain. Also, Nizurtado
surrendered to the Sandiganbayan.
The Sandiganbayan convicted Nizurtado as
charged, but appreciated two mitigating
circumstances-voluntary surrender and restitution
of funds-in his favor. The Sandiganbayan imposed
the penalties of imprisonment ranging from
FOUR (4) YEARS, NINE (9) MONTHS, and
ELEVEN (11) DAYS of prision correccional as
minimum to EIGHT (8) YEARS, EIGHT (8)
MONTHS, and ONE (1) DAY of prision mayor as
maximum; perpetual special disqualification; and a
fine of P10,000.00.
ISSUE: Did Nizurtado misappropriate the funds?
HELD.
Yes. Petitioner was able to encash the check on the
basis of a resolution of the Barangay Council,
submitted to the KKK Secretariat, to the effect
that a livelihood project, i.e., "T-shirt
manufacturing," had already been identified by the
council. The money, however, instead of its being
used for the project, was later lent to, along with
petitioner, the members of the Barangay Council.
Undoubtedly, the act constituted
"misappropriation" within the meaning of the law.
Nizurtado was charged with having committed the
crime through the falsification of a public
document punishable under paragraph 2 of Article
171 of the Revised Penal Code. In falsification
under the above-quoted paragraph, the document
need not be an authentic official paper since its
simulation, in fact, is the essence of falsification.
So, also, the signatures appearing thereon need not
necessarily be forged. In concluding that the
Barangay Council resolution was a falsified
document for which petitioner should be held
responsible, the Sandiganbayan gave credence to
the testimonies of Barangay Councilman Gomez
and Barangay Treasurer Romero. The established
rule is that unless the findings of fact of the
Sandiganbayan are bereft of substantial evidence to
support it, those findings are binding on this court.
The Sandiganbayan has considered the mitigating
circumstances of voluntary surrender and
restitution in favor of Nizurtado. Deputy Clerk of
Court Luisabel Alfonso Cortez, on 17 January
1989, has certified to the voluntary surrender of the
accused.
Voluntary surrender (Art. 13, par. 7, Revised
Penal Code), therefore, may thus be treated as
a modifying circumstance independent and
apart from restitution of the questioned funds
by petitioner (Art. 13, par. 10, Revised Penal
Code). We are convinced, furthermore, that
petitioner had no intention to commit so grave
a wrong as that committed. (Art. 13, par. 3,
Revised Penal Code), entitling him to three
distinct mitigating circumstances.
Under Article 48 of the Revised Penal Code, when
a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary
means for committing the other, the penalty for
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the most serious crime shall be imposed, the same
(the penalty) to be applied in the maximum period.
The penalty prescribed for the offense of
malversation of public funds, when the amount
involved exceeds six thousand pesos but does not
exceed twelve thousand pesos, is prision mayor in its
maximum period to reclusion temporal in its
minimum period; in addition, the offender shall be
sentenced to suffer perpetual special
disqualification and to pay a fine equal to the
amount malversed (Art. 217[3], Revised Penal
Code). The penalty of prision mayor and a fine of five
thousand pesos is prescribed for the crime of
falsification under Article 171 of the Revised Penal
Code. The former (that imposed for the
malversation), being more severe than the latter
(that imposed for the falsification), is then the
applicable prescribed penalty to be imposed in its
maximum period. The actual attendance of two
separate mitigating circumstances of
voluntary surrender and restitution, also
accused to the penalty next lower in degree.
For purposes of determining that next lower
degree, the full range of the penalty prescribed by
law for the offense, not merely the imposable
penalty because of its complex nature, should, a
priori, be considered. It is our considered view that
the ruling in People vs. Gonzales, 73 Phil. 549, as
opposed to that of People vs. Fulgencio, 92 Phil. 1069,
is the correct rule and it is thus here reiterated. In
fine, the one degree lower than prision mayor
maximum to reclusion temporal minimum is prision
mayor minimum to prision mayor medium (being the
next two periods in the scale of penalties [see Art.
64, par. 5, in relation to Art. 61, par. 5, Revised
Penal Code]) the full range of which is six years and
one day to ten years. This one degree lower penalty
should, conformably with Article 48 of the Code
(the penalty for complex crimes), be imposed in its
maximum period or from eight years, eight months
and one day to ten years. The presence of the
third mitigating circumstance of praeter
intentionem (lack of intention to commit so
grave a wrong as that committed) would result
in imposing a period the court may deem
applicable. Considering, however, that the
penalty has to be imposed in the maximum
period, the only effect of this additional
mitigating circumstance is to impose only the
minimum portion of that maximum period,
that is, from eight years, eight months and one day
to nine years, six months and ten days, from which
range the maximum of the indeterminate sentence
shall be taken.
Under the Indeterminate Sentence Law (which can
apply since the maximum term of imprisonment
would exceed one year), the court is to impose an
indeterminate sentence, the minimum of which
shall be anywhere within the range of the penalty
next lower in degree (i.e., prision correccional in its
medium period to prision correccional in its maximum
period or anywhere from two years, four months
and one day to six years) and the maximum of
which is that which the law prescribes after
considering the attendant modifying
circumstances. In view of the mitigating
circumstances present in this case, the fine of
P10,000.00 may also be reduced (Art. 66, Revised
Penal Code) and, since the principal penalty is
higher than prision correccional, subsidiary
imprisonment would not be warranted (Art. 39,
par. 3, Revised Penal Code).
The conviction by the Sandiganbayan is
affirmed, but the penalty is modified by
imposing on petitioner a reduced
indeterminate sentence of from two years, four
months and one day to eight years, eight
months and one day, perpetual special
disqualification and a fine of P2,000.00 [end].
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Elements of voluntary plea of guilt:
1. That guilt tendered is confessed
spontaneously and unconditionally;
2. The accused confesses guilt in open court
[the competent court that is to try the
case];
3. The confession was made before the
presentation of the evidence for the
prosecution.
In no. 2, for the confession of guilt to be
considered spontaneously, it must be to the crime
charged. If the plea of guilt was based on a plea
bargaining agreement, there is not valid plea of
guilt. It is still plea of guilt but it will not be
considered as a mitigating circumstance.
Ex. A was charged with the crime of frustrated
murder. During the plea bargaining, with the
consent of the judge, the fiscal and the offended
party, he said that he had plead guilty to
attempted murder. And so he pleaded guilty to
attempted murder. The judge rendered judgment
without considering voluntary plea of guilt so as
to reduce his penalty. Is the judge correct?
Yes. For said plea of guilty to be considered
voluntary, it must be done spontaneously. It must
be the original crime charged.
A was charged with the crime of frustrated
homicide. On plea bargaining, with the consent of
the judge, the fiscal and the offended party, he said
that he had plead guilty to a lesser crime of serious
physical injuries. So he was rearraigned and this
time the crime charge was serious physical injuries.
And this time he pleaded guilty.
That is still considered a valid plea of guilt. Upon
his plea of guilt, the judge will render his decision
but it cannot be considered voluntary, because it
was not done spontaneously. Spontaneously, it
must be the original crime charged.
That he confesses guilt in open court that is before
the court tried his case. He cannot plead guilty in
the appellate court.
What if A was charged as a principal in the crime
of robbery. He pleaded guilty with the consent of
the judge, the fiscal and the offended party to the
crime of robbery but merely as an accomplice.
The judge rendered judgment because of the plea
of guilt. The judge did not consider the said plea of
guilt as mitigating. Is the judge correct?
Yes, the judge is correct because when he pleaded
guilt as an accomplice, his plea of guilt was not
done unconditionally.
What if A was prosecuted for the crime of
reckless imprudence resulting in homicide and
multiple physical injuries. He was driving his
vehicle, bumped a person and injured several
others. During arraignment, he immediately
pleaded guilty. The judge rendered judgment. In
rendering judgment, the judge did not consider
the voluntary plea of guilt as mitigating. Is the
judge correct?
Yes. The judge is correct because in the case of a
culpable felony, in case of quasi-offenses, under
Art. 365 the judge may or may not consider
these MCs in the imposition of penalty. If the
judge consider it or if the judge did not consider it,
that is the decision of the judge. Under Art. 365,
the court is not mandated to consider the rules,
the decision is based on the sound discretion
whether or not to consider the MC.
Ex. X was driving his vehicle when he hit a
pedestrian and the pedestrian died. Afraid that the
people in the area will hurt him, he left the said
pedestrian whom he hit. However upon watching
TV, he learned that the police was looking for him.
The man who was driving this vehicle with this
plate number and at particular time. X knew it was
him so immediately went to the police station and
gave himself up. He was prosecuted for reckless
imprudence resulting in homicide. Upon
arraignment, he immediately pleaded guilty to the
crime charged. If you were the judge what MC will
you consider?
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Under Art. 365, the law provides that in case of
quasi-offenses, the court need not consider the
provision of Art. 64. And what does Art. 64
provide? It provides for the rules on the
application of divisible penalties. The court is not
mandated to consider the rules on aggravating or
mitigating circumstances. The decision is based on
the sound discretion whether or not to consider
the mitigating or aggravating circumstances
[Mariano v. People].
Here, you may consider both voluntary surrender
and voluntary plea of guilty OR you may not
consider any.
Ex. X was walking when suddenly A, B and C
surrounded him. A, B and C attacked and mauled
X until X laid on the ground. X was defeated and
so he pulled out an ice pick and thereafter he hit A.
The ice pick pierced through the heart of A. A died
instantly. B and C left. X was arrested and
thereafter he was charged in court. If you were the
judge that convicted X of homicide, what
mitigating circumstances may be considered in
order to lower the imposable penalty.
1st we have incomplete self-defense. There was
unlawful aggression coming from the said victim.
The victim together with B and C attacked and
mauled X until he fell on the ground. The life of
the accused was place on imminent danger. The
second element was, however, absent. There was
reasonable necessity for him to use an ice pick
hitting the heart of the said victim. Therefore,
unlawful aggression was present but the
reasonable necessity is absent. As for the sufficient
provocation, there was no sufficient provocation
on the part of X. He was merely walking when he
was attacked. Here of the three elements, two are
present and one of them was unlawful aggression.
For as long as unlawful aggression was present,
there is incomplete justifying. This would be
considered a PMC due the presence of 2 out of 3
elements of self-defense.
Aside from that, you can also consider sufficient
provocation on the part of the offended party.
There was provocation on the part of the offended
party and the said commission of the crime was
immediate to the said provocation.
By the presence of the privilege mitigating, it will
lower it by one degree and since there is an
ordinary mitigating, it would be to the minimum
period.
Ex. The husband and the wife were preparing
dinner. There was a knock on the door. The wife
opened the door, upon opening, the neighbor who
was calling the name tried to hack the wife. Wife
was able to reach and close the door and the wife
was not hacked. The neighbor however, with a use
of a bolo continuously hacked the wooden or the
bamboo door and walls of the house. And so,
considering that his house was being damaged, the
husband was forced to go outside to confront the
neighbor. He used the window to go out. He called
the neighbor and asked what was the reason why
he was hacking. The neighbor instead of answering
tried to hack the husband. They struggled for the
possession of the bolo, and in the course the
husband gained possession of the bolo. Once in
the possession of the bolo, the husband hacked the
neighbor. The neighbor suffered a fatal wound but
was brought to the hospital and so he survived.
Husband was prosecuted for frustrated homicide.
Fiscal found probable cause and the case was filed
before the court. The court also found probable
cause. A warrant of arrest was issued against the
husband. The wife immediately informed the
husband that a warrant was issued. Upon learning
the same, although the warrant of arrest was
already with the police officer, the husband went
to the police station and gave himself up. Trial on
the merits and there was conviction of frustrated
homicide. What mitigating circumstances will you
consider?
1st you have to consider voluntary surrender. Even
if there was already a warrant issued, for as long as
the said police officers had not yet gone out
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looking for the said offender, the said surrender
would still be considered voluntary and mitigating
in nature.
[look at the last situational example in Par. 6, which
is similar to this one. Discussions of the presence
of sufficient provocation and passion and
obfuscation are the same]
There are three MCs. Sudden impulse of passion
and obfuscation as well as sufficient provocation
arose from the same facts and circumstances.
Therefore, although both are present, the judge
shall consider them only as one mitigating
circumstance.
Ex. X learned that this old man tried to molest his
wife. Angry upon learning such, X went to the
house of the old man. Upon seeing the old man, X
boxed and boxed the old man and kicked the old
man and he hit the wall and was brought to the
hospital where he died. Case was filed against him
and a warrant was issued against him. Upon
learning, he surrendered. Upon trial of the merits,
he was convicted. What MC will you consider?
1st is immediate vindication of a grave offense or
sudden impulse of passion or obfuscation. X upon
learning that this old man tried to molest his wife,
he immediately went to the old man and boxed and
boxed the said old man. The old man committed
an unlawful act that produce passion or
obfuscation on the part of X.
Any other? There is also praeter intentionem. X only
intended to hurt the old man. He boxed and boxed
the old man, he did not use any weapon. Then he
kicked the old man who hit his head. There is
notable disparity between the means employed and
the resulting felony (in kicking the old man who
later on died).
We also have voluntary surrender because upon
learning that there was a warrant of arrest issued
against him, he immediately went to the police to
surrender.
In so far as immediate vindication of a grave
offense and sudden impulse of passion and
obfuscation are concerned, since again they arose
from the same facts or circumstances, they will be
treated as one MC.
8. That the offender is deaf and dumb, blind or
otherwise suffering some physical defect which
thus restricts his means of action, defense, or
communications with his fellow beings.
This is the MC of physical defect.
For this mc to lie in favor of the accused, it is
necessary that there must be a connection, a
relation between the physical defect and the crime
committed. It is necessary that the said physical
defect must have restricted his use of action,
defense or communication with his fellow being.
Ex.A is a cripple, he has no legs, he always
positions himself near the Quiapo church. He was
on board a skateboard. So he often stays there,
and his work was to snatch the handbags of any
churchgoers. And so one time, he snatched the
handbag of a churchgoer and thereafter, he sped
away on board his skateboard. He was thereafter
arrested, will his physical defect of being crippled,
a man with no legs, be mitigating?
>No. because his physical defect has no relation at
all to the crime he has committed.
What if A is a blind man, blind beggar, near the
Quiapo church. One time he was begging for alms,
suddenly, he was scraped on his head with a
wound, it was so strong that he fell on the ground
wounded. Angry, he stood up, took his cane and
retaliated by hitting the person next to him, not
knowing that it was not the person but an
innocent passerby. The innocent passerby
suffered less physical injuries. So the blind beggar
was prosecuted for less serious physical injuries.
Is the mc of physical defect present so as to reduce
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the imposable penalty?
>Yes. His being blind restricted his means of
action, defense or communication with his fellow
being. His intention was to hit the person who
scraped him with the wound. But because of he
could not see, he hit an innocent passerby. There
was a relation between the physical defect and
the crime committed. Therefore, it will mitigate
his criminal liability.
9. Such illness of the offender as would diminish
the exercise of the will-power of the offender
without however depriving him of the
consciousness of his acts.
It is necessary that the said illness must diminish
the exercise of the will-power of the offender. But
it must not deprive him of his consciousness of
his act because if it will deprive him of
consciousness of his act, then it is exempting not
merely mitigating.
Ex. A is a kleptomaniac, he has this urge to steal.
Now, his urge is to steal diamonds. So one time he
was in a party, he was talking to a lady with
diamond earrings, diamond necklace, diamond
watch, diamond bracelet. Then after the
conversation, the lady went to the restroom. Upon
looking at the mirror, she shouted, she was
shocked, the diamond earring, necklace, watch
and bracelet were all gone. It was already taken
by the said accused. Prosecuted for theft, will his
illness mitigate his criminal liability?
Yes. It diminishes his exercise of his will-power
without however depriving him of consciousness.
He knew that he was committing theft, he knew
that he was taking the personal property of
another but he cannot control, he has a
diminished self-control to prevent the
commission of the crime. It will only mitigate,
reduce the imposable penalty but it will not
exempt from criminal liability.
10. And, finally, any other circumstances of a
similar nature and analogous to those
above mentioned.
Any other circumstance which is similar in nature
from the 1st to the 9th paragraph, then it is also
considered as a mc.
Ex. A public officer who has malversed public
funds, voluntarily, voluntary returned the public
funds, it is akin to voluntary surrender [NOTE:
see Nizurtado v. Sandiganbayan, where in a
case for malversation through falsification of
public document, voluntary surrender and
restitution were considered separately]. Or what if
a person is already of 65 years of age, sickly,
suffering from a disease it can be said to be akin
or similar to seniority. It will mitigate his criminal
liability.
Article 14. Aggravating circumstances. - The
following are aggravating circumstances:
1. That advantage be taken by the offender of his
public position.
2. That the crime be committed in contempt or
with insult to the public authorities.
3. That the act be committed with insult or in
disregard of the respect due the offended
party on account of his rank, age, or sex, or
that is be committed in the dwelling of the
offended party, if the latter has not given
provocation.
4. That the act be committed with abuse of
confidence or obvious ungratefulness.
5. That the crime be committed in the palace of
the Chief Executive or in his presence, or
where public authorities are engaged in the
discharge of their duties, or in a place
dedicated to religious worship.
6. That the crime be committed in the night
time, or in an uninhabited place, or by a band,
whenever such circumstances may facilitate
the commission of the offense.
7. Whenever more than three armed malefactors
shall have acted together in the commission of
an offense, it shall be deemed to have been
committed by a band.
8. That the crime be committed on the occasion
of a conflagration, shipwreck, earthquake,
epidemic or other calamity or misfortune.
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9. That the crime be committed with the aid of
armed men or persons who insure or afford
impunity.
10. That the accused is a recidivist.
A recidivist 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 this Code.
11. That the offender has been previously
punished by an offense to which the law
attaches an equal or greater penalty or for two
or more crimes to which it attaches a lighter
penalty.
12. That the crime be committed in consideration
of a price, reward, or promise.
13. That the crime be committed by means of
inundation, fire, poison, explosion, stranding
of a vessel or international damage thereto,
derailment of a locomotive, or by the use of
any other artifice involving great waste and
ruin.
14. That the act be committed with evidence
premeditation.
15. That the craft, fraud or disguise be employed.
16. That advantage be taken of superior strength,
or means be employed to weaken the defense.
17. That the act be committed with treachery
(alevosia).
There is treachery when the offender commits
any of the crimes against the person,
employing means, methods, or forms in the
execution thereof which tend directly and
specially to insure its execution, without risk
to himself arising from the defense which the
offended party might make.
18. That means be employed or circumstances
brought about which add ignominy to the
natural effects of the act.
19. That the crime be committed after an
unlawful entry.
There is an unlawful entry when an entrance
of a crime a wall, roof, floor, door, or window
be broken.
20. That the crime be committed with the aid of
persons under fifteen years of age or by means
of motor vehicles, motorized watercraft,
airships, or other similar means. (As amended
by RA 5438).
21. That the wrong done in the commission of the
crime be deliberately augmented by causing
other wrong not necessary for its commission.
Aggravating Circumstances (AC) are those
which if present in the commission of a felony will
serve to increase the imposable penalty
without however going beyond the maximum
penalty prescribed by law. The penalty is
increased because [they demonstrate greater
perversity of the accused].
No matter how many aggravating circumstances
attended the crime the court cannot impose a
penalty beyond the maximum penalty prescribed
by law.
Unlike justifying, exempting and mitigating
circumstances, which do not need to be stated or
alleged in the information, aggravating
circumstances must be alleged in the information.
Even if they are proven in trial but they are not
alleged in the information, they cannot be
considered against the person [People v. Race,
Jr.]. They must be both alleged and likewise
proven during trial, so as not to deprive the
accused of right to know the nature of the
accusation against him.
Kinds of Aggravating Circumstances [GSIS-
Q]:
1. Generic
2. Specific
3. Inherent
4. Qualifying
5. Special
1. Generic Aggravating Circumstances are
those that applies generally to all crimes.
Example:
a. Nighttime- it can be applied to crimes
against persons, crimes against property,
crimes against chastity and applied to all
other crimes.
b. Recidivism
2. Specific Aggravating Circumstances are
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those that apply only to certain or particular
crimes.
Ex: Treachery (Par.16 Art. 14) can only be
considered or appreciated in crimes against
persons.
3. Inherent Aggravating Circumstance are
those which of necessity follow the commission of
the crime because they are considered as
elements in the commission of the crime,
therefore they are considered inherent in the
commission of the crime.
If they are present in the commission of the crime
they are no longer considered so as to increase the
penalty because they are considered as elements.
4. Qualifying Aggravating Circumstances
are those which either change the nature of the
crime to bring about a more serious for a higher
penalty or even without changing the nature of
the crime it would impose a higher penalty.
Example: Art. 248: Murder
o the circumstances therein present would
qualify the killing of a person from homicide
to murder
o presence of treachery, evident premeditation,
cruelty in killing would make a crime not of
homicide but would be qualified to murder.
 In case of qualifying aggravating
circumstance, for example, A killed B there
was treachery, it was done in consideration of
a price, reward or promise, there was also
cruelty, so there are three qualifying
aggravating circumstances present. Only one
of them will qualify the killing to murder. So if
treachery is already proven, the crime
committed is already murder. Cruelty and the
other circumstance of in consideration of a
price, reward or promise shall only be
considered as generic aggravating
circumstances.
5. Special Aggravating Circumstances
Provides for the imposition of the maximum
penalty prescribed by law; hence it cannot be offset
by any mitigating circumstance.
Example: If the crime is committed by a syndicate
or organized crime group as provided by Art.62 as
amended by RA 7659.
Sec.23 of RA 7659 provides "The maximum
penalty shall be imposed if the offense was
committed by any group who belongs to an
organized/syndicated crime group"
[Note: Also, see Art. 62 (1a), RPC as amended by
RA 7659: “When in the commission of the crime,
advantage was taken by the offender of his public
position, the penalty to be imposed shall be in its
maximum period regardless of mitigating
circumstances”.]
Aggravating Circumstances:
1. That advantage be taken by the offender of his
public position.
This aggravating circumstance can be applied
only if the offender is a public officer, and he used
the prestige, influence or ascendency of his office
in the commission of the crime or to facilitate the
commission of the crime.
Generally, that the offender took advantage of his
public position, is a special aggravating
circumstance. Under Art. 14, however, it is merely
Generic Aggravating, but if you look at Art. 62 as
amended by RA 7659, the heinous crime law, it is
a special aggravating circumstance because the
law says the maximum penalty prescribed by law
should be the one imposed. Therefore it is a special
aggravating and cannot be offset by any mitigating
circumstance
Examples:
Police officer A was having a drinking spree with
his friends outside his house. In the course
thereof, they were discussing about the alleged
shoot out in Quezon. According to the police
officer, since he was a police officer, it was a
shoot out. But according to his friend it was a rub
out. They were arguing, exchanging views until
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the police officer got mad. At that time, he had
with him his pistol. He used his service pistol and
shot his friend who thereafter died. Is the said act
of killing done by taking advantage of his public
position?
This aggravating circumstance is not present. It
is not present because the said offender, public
officer, did not use or misuse his public office. He
did not use the influence, the ascendency or the
prestige of his office in order to commit the
crime. Even not being a public officer he could
have killed his friend in the same situation. He
could even have used another weapon, not
necessarily his service pistol.
The police officers stop jeepney drivers and will ask
for tong every morning and so until one time when
the jeepney driver filed a case of extortion against
him. In the information it was alleged that he
committed this act by taking advantage of his
public position, the said circumstance was alleged
in the information and proven during trial. How it
is to be appreciated?
It is a Special Aggravating Circumstance because
under Art. 62 as amended by RA 7659, the
maximum period for the penalty prescribed by law
shall be the one imposed. It cannot be offset by
any mitigating circumstance.
The police officers raided a bar and among the
women arrested was Y. After investigation, was
brought in a certain room and there the arresting
police officer had carnal knowledge of Y against
her will, and so the crime of Rape was filed against
the said police officer. In the information, it was
alleged that the aggravating circumstance of taken
advantage of his public position was
present/attended the commission of the crime.
How is the advantage taken of his public position
to be considered by the court?
It is to be considered as a Qualifying Aggravating
Circumstance. Under Art.266-B of the RPC "If the
victim is in the custody of police authorities, the
military or any member of any penal institutions”,
it will be considered as Qualified Rape and the
imposable penalty will be Death. So it changed the
nature of the crime from Rape to Qualified Rape,
and from Reclusion Perpetua the penalty was
increased to Death. So it will Qualify the
commission of the crime, the crime committed is
Qualified Rape.
2. That the crime be committed in contempt of or
with insult to the public authorities.
Elements of Art. 14, Par. 2:
1. That the public officer or public authority
is engaged in the exercise of his function;
2. That the public authority is not the person
against whom the crime is committed;
3. That the offender knows him to be a public
authority;
4. That the presence of the public authority
did not prevent the offender from the
commission of the crime.
For this circumstance to be appreciated it is
necessary that the crime was committed in the
presence of public authorities while the latter is
engaged in the performance of their official
duties. So even if there is a public authority at the
time of the commission of the crime the offender
still committed the crime, and the presence of
such authorities did not prevent the offender
from making the crime
1st element: That the public officer or public
authority is engaged in the exercise of his function.
Who is a public authority?
Any person directly vested with jurisdiction
whether an individual or some members of court
or governmental commissioner. It is necessary
that he has the duty to govern and execute the
laws.
Example: Mayors, barangay chairman.
NOTE: A police officer is merely an agent of a
person in authority
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2nd element: That the public authority is not the
person against whom the crime is committed.
If the public authority is the person attacked or
assaulted, the crime is Direct Assault and [in]
contempt of or with insult to public authorities is
no longer considered as an aggravating
circumstance, but an integral element in the
commission of the crime
3rd element: That the offender knows him to be a
public authority.
There must be knowledge on the part of the
offender that the said person is a public authority.
Otherwise, it cannot be said that he disrespected
the said person as a public authority if he has no
knowledge that he is a public authority.
4th element: The presence of the public authority
did not prevent the offender from the commission
of the crime.
What if the barangay chairman was in a
restaurant having dinner with his wife because it
was their wedding anniversary. Suddenly here
comes A, B and C who are constituents of the
barangay chairman. Upon seeing the chairman,
they greeted him and even congratulated him and
his wife upon learning that they were celebrating
their wedding anniversary. They seated next to
the table of the chairman and ordered food. In the
giving of the food, there was an argument
between A and the waiter. The argument
immediately became a heated one. A took the
table knife and stabbed the waiter. The waiter
suffered serious physical injuries. Prosecuted for
frustrated homicide. In the prosecution for said
crime, is the aggravating circumstance of in
contempt of or with insult to public authority
present?
It is not present because the first element is
absent. The first element, that the public officer or
public authority is engaged in the exercise of his
function. At the time of the commission of the
crime, yes he was there but he was in a private act.
He was not engaged in the exercise of his function,
hence it cannot be said that the said offender
insulted the said public authority.
What if the public authority was the city mayor
who was inside his office. Suddenly he heard
commotion on the ground floor. He looked out his
window, he saw his two supporters having an
argument. A and B were having an argument over
a parking space. The mayor went down the
building and talked to both A and B. He told them
to shake hands and forget everything. Then he
told A to just allow B to park his car anyway there
was another parking space available. This
angered A because he thought that the mayor was
siding with B. A took out his balisong and stabbed
the mayor. Is the aggravating circumstance of in
contempt of or with insult to public authority
present?
It is present but it is not an aggravating
circumstance but an element of the crime because
the crime committed is direct assault. It is direct
assault because the public authority at the time of
the attack was engaged in the performance of his
functions. Since the crime committed was against
the public authority himself, the fact that it was
committed in contempt of or with insult to the
said public authority is an ingredient of the crime.
What if in the same problem instead of stabbing
the said mayor, A felt insulted with the mayor's
words that he is giving the parking space to B so
this angered A. A stabbed B. B died. Is the
aggravating circumstance of in contempt of or with
insult to public authority present?
This time, it is present. The mayor's act of
pacifying A and B was engaged in his official
functions. He was not the person against whom
the crime was committed. A was a supporter,
therefore he knew mayor was a person in
authority. Yet, the presence of the mayor did not
prevent A from committing the crime against B.
Hence, the second aggravating circumstance is
present.
3. That the act be committed with insult or in
disregard of the respect due the offended party
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on account of his rank, age, or sex, or that is be
committed in the dwelling of the offended party,
if the latter has not given provocation.
There are four aggravating circumstances under
this paragraph:
1. Disregard of rank
2. Disregard of age
3. Disregard [disrespect] of sex
4. Crimes committed in dwelling of the offended
party
These four aggravating circumstances can be
appreciated singly or collectively if present in the
commission of the crime.
Disregard of rank, disregard of age and
disregard of sex can only be considered in
crimes against persons and crimes against
chastity. You do not consider these in crimes
against property; you do not consider these in
crimes against public interest.
 Disregard of rank
Rank refers to a high social standing, a high
position in the society. For this to be considered
as an aggravating circumstance, it is necessary
that the offender be of lower rank than that of the
offended party.
Example:
1. A student attacking a professor. There was a
disregard of rank of the said professor.
2. An employee attacking his employer. There
was a disregard of rank of the said employer.
 Disregard of age
Age here refers to both minority and seniority.
Example:
The offended party is 95 years old. A killed him by
hitting his head for 25 times with a lead pipe.
Obviously, there was disregard of his age.
Considering his age, whereas even one hit of the
lead pipe could have already killed the said old
man but he was hit 25 times showing disregard
of the age of the old man.
What if a child is 4 years old. He was stabbed 25
times, thereafter his body was placed inside a
dram filled with water and then the dram was
covered. There was disregard of age. The victim
was a minor and therefore any attack, just 1
stab, could have killed the minor. But he was
stabbed 25 times; not only that, he was also
submerged and the drum was covered, which
shows disrespect of age.
* If there was disrespect of age and there was
also treachery, the aggravating circumstance
to be considered is treachery because it
absorbs disrespect of age.
 Disrespect of sex
Disrespect of sex refers to the female sex. This is
inherent in the crime of rape and in certain crimes
involving chastity.
 Crimes committed in dwelling of the offended
party
Dwelling is considered as aggravating
circumstance if the crime is committed inside the
dwelling of the offended party, that is, the
offended party was inside his dwelling at the time
of the commission of the crime and he has not
given any provocation.
If the crime is committed inside the dwelling of
the offended party, it is as an aggravating
circumstance because it shows the greater
perversity of the offender than when the crime is
committed in any other place. It is because the
constitution itself provides that a man's abode
must be respected and therefore when a crime is
committed inside the house dwelling it shows the
greater criminality on the part of the offender.
Instances when dwelling is not considered an
AC even if the crime was committed in a
dwelling:
1. When the offended party has given
provocation;
2. if the offender and the offended party are
living in the same dwelling;
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3. When dwelling is inherent in the commission
of the crime.
Dwelling includes the dependencies, the staircase
and the enclosures therein. It need not be owned
by the offended party, it suffices that the offended
party uses it for rest and comfort.
E.g., a room being rented by the lessee or a tenant;
room where a person is living as a bedspacer.
What if A who lives in a nipa hut was sitting at the
staircase when B came and forcibly drag her to
another house, 1 kilometer away from A's house,
where she was raped by B. Is the aggravating
circumstance of dwelling present?
The aggravating circumstance is present even if
the crime was committed in another place far
from the dwelling, the aggression started in the
dwelling of the offended party. The aggression
that started in the dwelling of the offended party
when she was dragged from the said staircase,
that aggression cannot be divided from the
commission of said crim. So even if it grounds
were consummated in another place for as long
as aggression started in the dwelling, still
dwelling is an aggravating circumstance.
What if husband and wife were already about to
sleep, then they heard someone calling the name
of the husband outside the house. The husband
rose from the bed and looked out the window to
see who was calling him. Upon looking at the
window suddenly there were gun fires. The
husband fell lifeless. The wife, also went to the
window and looked out to see who killed her
husband. She was also fired at. Is the aggravating
circumstance of dwelling present?
Yes, dwelling is an aggravating circumstance. It
is not necessary for dwelling to be aggravating
that the perpetrator of the crime was able to get
in. It suffices that the offended party or the victim
is inside his house. The assailant may device ways
and means to commit the crime from the outside.
What if there was this woman. She is 95 years old;
a woman of high standing in the society. She was
a former department secretary. She is living alone
in her house. One time here comes X. X wanted to
rob the valuables inside the house of the said old
woman. X entered the said house and he was able
to get the valuables from the vault of the house.
He was about to leave the house when
accidentally pushed the chair. By reason thereof,
the woman was awaken. The woman upon seeing
X begun screaming. X then fired at the woman 50
times. The woman died. Are the aggravating
circumstances of disregard of rank, disregard of
age, disregard of sex and dwelling present?
The first three circumstances are not present
because the crime committed is robbery with
homicide, under Article 10 which is a crime
against property. Disregard of rank, age and sex
are not applicable to any other crimes but only to
crimes against person and crimes against honor
[NOT chastity]. Since the crime committed is a
crime against property, therefore, disregard of
rank, age and sex cannot be considered against
the accused.
Dwelling can be considered against the accused
because the crime committed robbery with
homicide is a form of robbery with violence
against or intimidation of persons. Dwelling is
only inherent in robbery with use of force
upon things but dwelling is not inherent in
case of robbery with violence against or
intimidation of persons just like robbery with
homicide. So in this case, only dwelling should be
considered as an aggravating circumstance.
4. That the act be committed with abuse of
confidence or obvious ungratefulness.
There are two aggravating circumstances:
1. Abuse of confidence
2. Obvious ungratefulness
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Abuse of confidence
Elements of abuse of confidence:
1. That the offended party had trusted the
offender;
2. That the offender abuse such trust by
committing a crime against the offended
party;
3. That the abuse of confidence facilitated
the commission of the crime.
Example:
A and B have been living here in Manila for 4
years. Suddenly here comes X. X was their former
neighbor in Batangas. He told A and B "I am
looking for work here in Manila, can I live in your
house while I am looking for work?" Since he was
a good neighbor back then A and B trusted X and
allowed X to live inside their house. X now sleeps
in the house of A and B while he was looking for
work here in manila. One time A and B were out
of the house in their respective works. The only
person left in the house was X and their daughter
who was only 9 years old. While the couple were
out, X molested and raped the said daughter. Is the
aggravating circumstance abuse of confidence
present in this case?
Yes, it is present. X was there because A and B
trusted him, yet he abused such trust and
confidence and instead facilitated the commission
of the crime. Therefore this aggravating
circumstance is present.
Obvious Ungratefulness: ungratefulness means
the offender has no gratitude, does not even
know how to say thank you.
Elements of obvious ungratefulness:
1. That the offended party had trusted the
offender;
2. That the offender abuse such trust by
committing a crime against the offended
party;
3. That the act be committed with obvious
ungratefulness
Ex: A was selling kettles and other kitchenware on
the street under the heat of the sun. A goes from
one house to another under the heat of the sun. He
was so thirsty already so he knocked on the gate
of the house of X. X opened the gate and A told X
that he was so thirsty. X being a good person,
allowed A to go inside their house and asked him
to take a sit while he get him a glass of water.
When he came back, he was not only holding a
glass of water but also brought some biscuits.
However A suddenly, brought out his knife and
stabbed X and thereafter robbed him. Is the
aggravating circumstance obvious ungratefulness
present?
Yes. Instead of showing gratitude for having been
allowed to enter the house and given a glass of
water with biscuits, he instead took advantage of
the goodness of the man and committed the crime
of killing and robbery. There was obvious
ungratefulness on the part of the offender.
5. That the crime be committed in the palace of the
Chief Executive, or in his presence, or where
public authorities are engaged in the discharge
of their duties or in a place dedicated to
religious worship.
There are four aggravating circumstances. If the
crime is committed in any of these places it is
considered as an aggravating circumstance
because it shows on the part of the offender lack
of respect on these places.
In order however for these aggravating
circumstances to be considered, it is necessary
that the offender deliberately sought the said
place to commit the crime because otherwise it
cannot be said that he disrespected the place.
1. In the palace of the Chief Executive
Regardless of whether there is a public affair or
official affair going on, if a crime is committed
there it is aggravating.
2. In the presence of the Chief Executive
Even if the Chief Executive is playing golf in
Baguio, still it is considered as aggravating
because of the lack of respect to the chief
executive.
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3. Where the Public Authorities are engaged in
the discharge of their duties
Requisites of place where public authorities
are engaged in the discharge of their duties:
1. The place is where public authorities are
engaged in the discharge of their duties;
2. The public authorities are actually engaged
in the discharge of the performance of
their duties.
Par. 5 (Places of Par. 2 (Insult to
commission) public authorities)
Public duty is Public duty is
performed in their performed outside
office. their office.
The offended party Public authority
may or may not be the should not be the
public authority. offended party.
In both, public authorities are in the
performance of their duties.
(Source: GN 2016)
4. In a place dedicated to religious worship
Even if there is no religious ceremony on going,
for as long as the said crime is committed in said
place dedicated to religious worship it is
aggravating because of lack of respect on said
place.
Ex:
A and B are chefs in Malacanang. They are
outdoing each other in trying to prepare the best
meal for P-noy. One time, both of them were
preparing lunch for the president. Suddenly they
had an argument. In the course thereof, A stabbed
B. B suffered a fatal wound but he survived.
Prosecuted for frustrated homicide. Is the
aggravating circumstance that the crime was
committed in the palace of the Chief Executive
present?
No, it is not present. Because he works there, he
lives there. It cannot be said that he sought the
said place in order to commit the crime. It cannot
be said that he went to said place in order to
commit the crime or can it be said that he
disrespected the said place.
What if many farmers were having a rally outside
the DAR. They started the rally around 6am, it is
now 8pm, they were still there. The officials and
employees had already left, so the farmers were
there still having their rally. They set tents and
prepared to sleep there. In the course thereof, 2
farmers argued at each other. In the course of
their argument one farmer jumped into the fence
and went inside the DAR. The second farmer
followed him and when the second farmer was
able to catch up with the first farmer, he killed the
latter. Is the aggravating circumstance that the
crime was committed in a place where the Public
Authorities are engaged in the discharge of their
duties present?
No, it is not present. Although DAR is a place
where the Public Authorities are engaged in the
discharge of their duties, at the time of the
commission of the crime, the officials and
employees are not in the actual performance of
their duties. Under this aggravating circumstance,
it is not only necessary that the said places are
where public authorities are engaged in the
discharge of their duties, it is also necessary that
at the time of the commission of the crime, the
public authorities are actually engaged in the
performance of their duties.
6. That the crime be committed at the nighttime or
in an uninhabited place, or by a band, whenever
such circumstances may facilitate the
commission of the crime.
Whenever more than three armed
malefactors shall have acted together in the
commission of the offense, it shall be deemed to
have been committed by a band.
There are three aggravating circumstances:
1. Nighttime
2. Uninhabited place
3. Band
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1. Nighttime-from sunset to sunrise
Requisites of nighttime:
1. The offender deliberately took advantage of
nighttime or cover of darkness;
2. The purpose of the offender is to facilitate
the commission of the crime or to insure or
afford impunity.
To facilitate the commission of the crime, he use
the cover of darkness, so that his actual
perpetration of the crime will be unmolested. He
cannot be disturbed. Therefore, there is an
assurance that crime will be consummated. To
insure or afford impunity he sought to cover in
darkness so that no one will be able to recognize
him.
Even if the offender sought nighttime, the
moment the scene of the crime has been
illuminated by any light, rule out nighttime as an
aggravating circumstance.
Example:
In the commission of the crime, A decided to kill
B, his enemy. A knew that B would pass by the
place wherein there were no light posts. A waited
for B in the said place. Upon the moment B arrived
A left his post and was about to stab B when
suddenly a tricycle passed by and the light coming
from the tricycle illuminated the scene of the
crime. Even if A deliberately sought nighttime,
nighttime is not aggravating because a light
illuminated the scene of the crime. Whenever any
light has illuminated the scene of the crime, rule
out nighttime as an aggravating circumstance.
Light coming from the tricycle, from any vehicle,
nearby house, light posts or even from the moon,
for as long as the scene of the crime has been
illuminated, nighttime is not aggravating.
2. An uninhabited place
A place which is isolated from the others or
located far from others where the victim has very
little or remote possibility to receive help.
[However this is not the requirement for it to be
considered aggravating.]
Requisites of an uninhabited place:
1. That in the place where the crime was
committed there was a remote possibility
for the victim to receive some help;
2. That the offender deliberately sought the
uninhabited place in order to facilitate the
commission of the crime.
Ex: A, B and C are fishermen. Around 3 am, they
all went out fishing on their respective boats.
They were sailing 5 meters away from each other.
Suddenly X sprung out of the water and he
stabbed A. In the prosecution for killing of A, is the
aggravating circumstance of uninhabited place
present?
Yes it is present. First, in the place where the
crime was committed, there was very little,
remote possibility for A to receive some help.
Because B and C must still swim before they could
render help or assistance to A. Before they could
have swum and reached A, A is already dead.
Therefore there was very litter or remote
possibility for the victim to be saved. The said
accused X deliberately sought the place in order
to facilitate in the commission of the crime
because he suddenly appeared from the water.
Therefore the aggravating circumstance of
uninhabited place is present.
3. By a band
For the aggravating circumstance of by a band to
be present, the law says where more than three
armed malefactors shall have acted together in
the commission of the offense, it shall be deemed
to have been committed by a band. Therefore,
there must be at least 4 armed men [who] have
acted together in the commission of the crime.
Ex: A, B, C, D and E all armed with knives, killed X.
The information stated that A, B, C, D and E
conspired with one another and as a band they
committed the crime of murder against X. during
the presentation of evidence, conspiracy was
proven beyond reasonable doubt. Likewise, band
as an aggravating circumstance was proven
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beyond reasonable doubt. Thus the judge
convicted A, B, C, D and E for the crime of murder
as conspirators. The judge also considered the
aggravating circumstance of by a band. The
counsel for the accused filed a motion for the
consideration, questioning the consideration of
the aggravating circumstance of by a band.
According to the counsel, conspiracy has already
been considered therefore by a band can no
longer be considered by the court. Is the counsel's
contention correct?
No, the counsel's contention is wrong. Even if the
court already considered conspiracy, by a
band may still be considered by the court
because conspiracy is a means of committing a
crime. It means they have the same criminal
liability. On the other hand, by a band is an
aggravating circumstance. One does not absorb
the other, therefore, both maybe considered and
appreciated by the court.
7. That the crime be committed on the occasion of
a conflagration, shipwreck, earthquake,
epidemic, or other calamity or misfortune.
It is considered as an aggravating circumstance
because on occasion of these calamities, the
offender took advantage of the said occasion in
order to commit the crime.
In times of calamities we should help one another,
so if the offender took advantage of these
occasions, it shows his greater criminality, his
greater perversity hence it will aggravate his
criminal liability.
Examples:
There was this big fire, that a number of houses in
the barangay were gutted with fire, the house of X
was among those affected by this big fire. While X
was busy getting his things out of said house, and
so Y wanted to take a revenge because he has
grudge against X, went to the said place and
pretending to be helping, went near X, and X who
is already an old man, Y repeatedly stabbed X.
Thereafter Y took all the things inside the house.
Y was charged of robbery with homicide. Is the
charge correct?
The charge is wrong. It is not robbery with
homicide because the criminal intent of Y was to
take a revenge on X, to kill X. So the appropriate
charge Murder and Theft. Two crimes must be
charged.
What aggravating circumstances attended the
commission of the crime?
First, on the occasion of a big fire, which is a
qualifying aggravating circumstance. If you would
look at Art.248, if crime of killing a person is
committed under any of these occasions, it will
qualify the crime of Homicide to Murder, and the
penalty would be Reclusion Perpetua. The fact that
the killing took place on the occasion of the said
fire then the crime would be considered as
Murder.
Crime is committed inside dwelling of the
offended party while he was busy saving all his
things. Although it is being gutted with fire, it is
still the dwelling, the place of comfort and rest of
X.
No disregard of age, there was no showing of
disrespect of age. Although Y repeatedly stabbed
X, there was no showing that Y
disregarded/disrespected or intended to
disregard/disrespect the age of X, because the
intent was to take a revenge against X.
So two aggravating circumstances are present, one
is on the occasion of fire and the other, that
dwelling is present in the commission of the crime
Lessor-Y went to the unit being rented by the
lessee- X to ask the latter to pay rent because the
lessee haven't paid rent for three months already.
X happened to be an old man. When X still didn't
pay the rent, Y attacked X, Y hacked and hacked
X. When X, the said old man, 85yrs old, was
already lying on the floor still Y repeatedly and
continuously hacked X. What aggravating
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circumstances attended the commission of the
crime?
The first aggravating circumstance that attended
the commission of the crime is dwelling. There is
dwelling in the commission of the crime because
it was committed in the unit being rented by X
even if Y is the owner, still it is the dwelling of X
because he is renting the said place from the
owner.
Disregard of Age, X was already lying on the floor
yet Y still repeatedly hacked X. An 85yrs old lying
cold feet on the ground then there was obviously
disregard of the age of the victim in the
commission of the crime.
***if the question is: "Are the aggravating
circumstances of dwelling, abuse of confidence,
nighttime, etc. PRESENT in the commission of
the crime?"
Your answer is - if they are present or not. You
will say if they are present, and you will state the
elements why they are present, and connect the
elements to the facts.
But if the question is: "If you were the judge how
would you consider/ APPRECIATE these
aggravating circumstances?"
Then that is the time that you will say that some of
these aggravating circumstances will be absorbed
by Treachery. Or that they will be offset by some
of the mitigating circumstances.
8. That the crime be committed with the aid of
armed men or persons who insure or afford
impunity.
"With the aid of armed men"
The armed men aided the offender in the
commission of the crime. The aid given by the
armed men maybe a direct or indirect
participation in the commission of the crime.
Armed men distinguished from by a band
Band (Par. 6) Armed Men (Par. 8)
At least 4 armed No requisite as to the
malefactors number of armed men
who aided the actual
perpetrator of the
crime.
The armed men must Not necessary that
have acted together in they acted together in
the commission of the the commission of the
crime crime because they
merely aided the
actual perpetrator;
their participation
may be direct or
indirect.
Band members are all Armed men are mere
principals (GN) accomplices (GN)
FOUR FORMS OF HABITUALITY
 Recidivism (Art. 14, Par. 9);
 Reiteracion/Habituality (Art. 14, Par. 10);
 Habitual Delinquency (Art. 62.);
 Quasi-Recidivism (Art. 160).
9. That the accused is a recidivist.
A recidivist is one whom at the time of his
trial for one crime, shall have previously been
convicted by final judgment of another crime
embraced in the same title of this Code.
Requisites of Recidivism:
1. That the offender is on trial for an offense;
2. That he was previously convicted by final
judgment of another crime;
3. That both the first and second offenses are
embraced in the same title of the RPC;
4. That the offender is convicted of the
second offense charged.
In case of recidivism, there must be at least 2
convictions. First conviction must be by final
judgment. The second conviction must be for the
second time for which he is on trial.
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Reiteracion, recidivism, habitual delinquency and quasi-recidivism, distinguished (GN 2016)
REITERACTION RECIDIVISM HABITUAL QUASI-RECIDIVISM
DELINQUENCY
It is necessary that the It is enough that a final Within a period of 10 Felony was committed
offender shall have judgment has been years from the date of after having been
served out his sentence rendered in the first first release or last convicted by final
for the first offense. offense. conviction, he is found judgment of an offense,
guilty of any of the before beginning to serve
crimes below a third sentence or while serving
time or oftener. the same.
The previous and Requires that the Crimes involved are First and subsequent
subsequent offenses offenses be included in serious or less serious conviction may or may
must not be embraced the same title of the physical injuries, not be embraced by the
by the same title of the RPC. robbery, theft, estafa, same title of the RPC.
RPC. and falsification.
Not always Increases the penalty to Offender shall suffer an Offender shall be
aggravating; its maximum period. additional penalty. punished by the
discretionary on the maximum period of the
court to appreciate. penalty prescribed by law
for the new felony.
Includes offenses Felonies under the Limited to serious or First crime for which the
under special laws. RPC only. less serious physical offender is serving
injuries, robbery, theft, sentence need not be a
estafa, and falsification. crime under the RPC but
the second crime must be
one under the RPC.
A generic AC. A generic AC. Extraordinary AC Special AC which may be
which cannot be offset offset by a [special] PMCs
by an MC. but not by OMCs.

Yes, because both homicide and murder are

embraced in the same title of the code. The fact
Example: that 25 years had lapsed from the time of the first
A has been convicted of the crime of attempted crime to the second crime is immaterial because
homicide. The judge found him guilty beyond recidivism is imprescriptible. There is no time
reasonable doubt, therefore, he was convicted. limit between the first crime for which he has
The judgment became final and executory, been convicted by final judgment and the second
therefore he was behind bars. He served out his crime for which he is also convicted.
sentence. Once out of prison cell, he lived a good
life. However, after 25 years, he engaged in a fight
and killed the other man. By reasonable doubt he
was charged with and convicted of the crime of
murder. Can the judge consider recidivism as an
aggravating circumstance in imposing the penalty
for murder?

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Recidivism Habitual situations. The first situation is that, he has
Delinquency already served out the sentence, he has already
At least two At least three been punished for a crime. If it is only one crime
convictions convictions it is necessary that the said crime must carry a
Crimes are under the Serious physical penalty equal to or greater than the second crime.
same title of the RPC. injuries, less serious But if there are two crimes for which he had been
physical injuries, previously punished, it is necessary that they
robbery, theft, carry a lighter penalties than the new crime for
falsification. which he is convicted.
No prescriptive Prescriptive period of
Recidivism Reiteracion
period on the 10 years.
commission of the In both, there must at least be two convictions.
offense; it does not It is only required that
The offender must
prescribe. there is a conviction by
have served his
Generic AC, may be Cannot be offset by final judgment of the sentence for the
offset. MCs; it provides for an first crime. previous crime he
additional penalty. committed.
The two crimes must There is no such
Recidivism Quasi-Recidivism be included in the requisite.
There must be at least Likewise there must be same title of the RPC.
two convictions. two convictions (first
by final judgment and
Examples:
second for the second A has been convicted of the crime of homicide.
crime that he has Convicted by final judgment, he was placed
committed). behind bars. He served out his sentence. Once out
The crimes must be No such requisite, of prison, he committed forcible abduction.
embraced in the same only that the second Homicide is punished by reclusion temporal.
title of the Code, crime must be a felony Forcible abduction is now on trial. The penalty
prescribed by law for forcible abduction is also
10. That the offender has been previously punished reclusion temporal. The judge found him guilty
for an offense to which the law attaches an for forcible abduction. Can the judge consider
equal or greater penalty or for two or more reiteracion as an aggravating circumstance in
crimes to which it attaches a lighter penalty. imposing the penalty for forcible abduction?
This is likewise considered as reiteracion or Yes because the penalty for the crime of homicide
habituality. where he has already served out his sentence is
equal to the penalty for forcible abduction, both
Elements of reiteracion:
reclusion temporal. Therefore, reiteracion or
1. That the accused is on trial for an offense;
habituality can be considered.
2. That at the time of the trial he previously
served sentence for another crime to which
B committed forcible abduction. He was convicted
the law attaches an equal or greater penalty
by final judgment. He served out his sentence. He
or for two or more crimes to which it attaches
is now out of prison. Once out of prison, he
a lighter penalty;
committed falsification of public document. He is
3. That he is also convicted of the new offense.
on trial for the said falsification of public
document. The judge found him guilty beyond
Under the second element there are two

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reasonable doubt. In imposing the penalty for
falsification of public document, can judge consider
reiteracion as an aggravating circumstance?
Yes, because the penalty for forcible abduction is
reclusion temporal, which is higher than the
penalty for falsification of public document
committed by a private individual which is only
prision correccional. Therefore, reiteracion or
habituality should be considered by the court in
imposing the penalty for falsification of public
document.
B committed falsification of public document.
Convicted, served out the sentence. After service
of sentence, he is out of prison, he engaged in a
fight and killed his opponent. His now on trial for
homicide. The judge found him guilty beyond
reasonable doubt. Can the judge consider
reiteracion as an aggravating circumstance?
No because the crime for which he has served out
his sentence carries a penalty lighter than that of
the second crime. The law requires that if it is only
one crime, it must carry a penalty equal to or
greater than the second crime he committed.
A slapped B. B filed a case for slight physical
injuries against A. He was convicted and served
out his sentence for slight physical injuries which
is arresto menor. Once out of prison, he was still
mad at B. He deliberately caused damage to the
property of B. B now filed a case of malicious
mischief against A. The judge found him guilty
beyond reasonable doubt for malicious mischief.
Can the judge consider reiteracion as an
aggravating circumstance?
No because slight physical injuries which carries
with it the penalty of arresto menor is lighter than
malicious mischief which carries with it the
penalty of arresto mayor. Therefore the judge
cannot consider reiteracion as an aggravating
circumstance. He was convicted of malicious
mischief and placed behind bars.
After service of sentence, he is now out of prison.
Once out of prison, he was still mad at B. therefore
he made sworn affidavits stating false statements
against B. B filed a case of perjury against A. he is
now on trial for the crime of perjury. The judge
found him guilty beyond reasonable doubt. Can
the judge consider reiteracion as an aggravating
circumstance?
Yes, because the first two crimes, the penalties of
which were already served out, carry lighter
penalties than the third crime: slight physical
injuries, arresto menor; malicious mischief
arresto mayor. Therefore reiteracion can be
considered.
People v. Race, Jr., G.R. No. 93143, 4 August
1992
Facts: Maximo Race, Jr. was charged with Rape
before the RTC of Masbate. It was proven that he
raped Maria Pura, a cross-eyed, mute and retarded
40-year old polio victim, thus he was convicted.
The RTC also appreciated the aggravating
circumstance of reiteracion because he admitted
during cross-examination that he was previously
convicted of the crime of homicide but was out on
parole at the time of the rape.
Issue: Whether the RTC was correct in
appreciating reiteraction as an AC.
Ruling: No.
The trial court likewise erred in appreciating the
aggravating circumstance of reiteracion. This
circumstance is not alleged in the information. The
prosecution did not prove it. Upon cross-
examination of the accused by the Prosecutor, over
the objection of the defense counsel, the only
information elicited is that the accused had earlier
been convicted for the crime of homicide, had
served the sentence and had later been released.
The fact of his being out on parole was brought
out upon questioning by the court after the
termination of the cross- examination. It would
thus be unfair to appreciate reiteracion against the
accused. Besides, for the same to exist, it is
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necessary that "the offender has been previously
punished for an offense to which the law attaches
an equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty."
Appellant was earlier convicted for the crime of
homicide which is punishable by reclusion temporal.
That penalty is not equal or greater -- but is
definitely lower -- than that provided for the crime
of ordinary rape which is reclusion perpetua [end].
People v. Molo, G.R. No. L-40757, 24 January
1979
Facts: Venancio Gapisa was sleeping in his house
with his wife Simeona on the evening of 9 April
1976 when appellant Dominador Molo came to
their house. He forced open the door and hacked
Venancio to death.
An information was filed in the CFI or Romblon
against Molo, charging him of murder [qualified
by] treachery, with abuse of superior strength
[ASS], dwelling, recidivism-as he was charged and
convicted for the following:
 Frustrated murder (convicted 2 Sept. 1950);
and
 Murder (27 July 1961)
and Reiteracion, as he was charged & convicted for
the following:
 Grave slander (convicted 5 June 1957);
 Less serious physical injuries (9 October 1959);
 Qualified trespass to dwelling (25 Feb. 1960);
and
 Robbery (1 March 1967).
The CFI convicted Molo as charged, appreciating
the qualifying circumstance of treachery and the
ACs of dwelling, recidivism and reiteration, with the
mitigating circumstance of voluntary surrender.
Issue: Whether his guilt was proven beyond
reasonable doubt.
Ruling:
The credible and unimpeached testimonies of the
victim's widow, Simeona Gapisa, who was an eye-
witness to the fatal incident, and that of Alejandro
Gapisa, the victim's son, and Roman Mangaring, a
neighbor, who both testified on the ante-mortem
statements of the victim, establish the guilt of Molo
beyond reasonable doubt of the crime of murder
qualified by treachery, and aggravated by
circumstances of dwelling, recidivism and
reiteration, it appearing that Molo has been
convicted by final judgment of murder, frustrated
murder, grave slander, less serious physical injuries,
qualified trespass to dwelling a robbery, and, had
served sentences for said crimes [end].
HABITUAL DELINQUENCY: See Art. 62
Elements of habitual delinquency:
1. The crimes the offender committed should
be serious physical injuries, less serious
physical injuries, robbery, theft, estafa, and
falsification;
2. There should be at least three convictions
3. Each convictions must come within ten
year from date of release or last conviction
of the previous crime.
A person is deemed a habitual delinquent, if within a
period of 10 years from the date of is release or last
conviction of the crimes of serious physical injuries,
less serious physical injuries, robbery, theft, estafa
or falsification, he is found guilty of any of the said
crimes a third time or oftener (Art. 62, last par.)..
Effect: Additional penalty shall be imposed in the
maximum period being an aggravating
circumstance.
Limitation: the penalty committed for the crime
plus additional penalty should not exceed thirty
years.
A was charged and convicted of robbery he
served his sentence. Within 10 years from date
of release he committed theft. He served
sentence and again released. Within 10 years he
committed another theft. The judgment become
final and executory. He served again and out of
prison. Within 10 years against he committed
another theft. He is now in trial. Can judge
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impose recidivism and habitual delinquency
both apply?
He is recidivist. At the time he served theft he was
previously convicted of a final judgment of
robbery embraced within the same title of the
code. He is also habitual delinquent, because
within the ten years from the date of his last
release he committed a theft the third time. Both
may be considered because they have different
effects on criminal liability of the offender. The
effect of recidivism is on the theft committed. It
may be offset by mitigating circumstances.
Habitual delinquency will give him an additional
penalty.
HD is considered as a Special Aggravating
Circumstance. Some book says that it is an
Extraordinary Aggravating Circumstance because
the presence of this aggravating circumstance of
HD would mean and imposition of an additional
penalty aside from the penalty imposed on the
offender for the crime that he has committed an
additional penalty would be imposed on him for
being a habitual delinquent. [The] limitation,
however, is that if you add the penalty for the
crime that he has committed and the additional
penalty for being a HD, they must not exceed 30
yrs.[NOTE: On 22 Feb 2017 class lecture, Prosec.
G said that HD is an Extraordinary AC]
QUASI-RECIDIVISM (Art. 160): a Special AC.
A quasi-recidivist is a person, who after having
been convicted by final judgment, commits a
felony before serving out his sentence. The
maximum period shall be imposed.
The first crime may be any crime, but the
second must be a felony.
Example: A while serving a final judgment, he
was found in possession of illegal drugs. He is not
a quasi-recidivist. The second crime is not a
felony, it is a special law.
But if reverse, say he was serving sentence for
possession of illegal drugs and then inside a
crime he killed a co-inmate. This time quasi
recidivism is considered. Maximum period
prescribed by law shall be imposed.
People v. Macariola, G.R. No. L-40775, 24
January 1983
Macariola was serving sentence for robbery when he killed
a fellow prisoner. The SC said that Macariola was a
habitual delinquent.
Facts: Macariola was imprisoned in the New
Bilibid Prison for robbery. One morning he was
gambling with the victim, fellow inmate Romeo
de la Peña, with Macariola winning all of de la
Peña’s money. The latter snatched the money
from Macariola’s hand. Macariola tried to take the
money back from de la Peña who was then seated
on on his "tarima". The victim kicked the
Macariola who was seated on the floor. Both
stood up, Macariola ready to box the victim. The
latter turned to get something from under his
pillow. Macariola stabbed the victim the first
time. The victim ran to a "kubol" pursued by the
accused. The victim went under his "tarima". The
Macariola dragged the victim from under and
repeatedly stabbed him until he could move no
more.
Macariola was charged with Murder, qualified by
treachery and with evident premeditation. The
Circuit Criminal Court of Pasig convicted him as
charged, finding the presence of the ACs of
treachery, evident premeditation and recidivism.
Issue: Whether Macariola is not a recidivist.
Ruling: Appeal DENIED.
Contrary to the stand of the Solicitor General's
Office, the special aggravating circumstance of
quasi-recidivism, under Article 160 of the Revised
Penal Code, is attendant. Macariola committed this
new felony while serving sentence for Robbery
imposed upon him by final judgment. Pursuant to
the same provision, the maximum period of the
penalty prescribed by law for this new offense
should thus be imposed. The presence of the
mitigating circumstance of sufficient provocation
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is of no consequence as quasi-recidivism cannot be
offset by any ordinary mitigating circumstance.
[end].
Other examples for habitualities:
X committed robbery and he was convicted by
final judgment served out sentence and was
released. Within six years from the date of his
release he committed theft, prosecuted and
convicted by final judgment served out the
sentence and was released. Within six months he
committed another crime of Theft, convicted by
final judgment served out his sentence and
released. Within two months from the date of his
release, he again committed a crime of Theft, so
the judge found him guilty beyond reasonable
doubt of this Theft. In imposing the penalty for
this Theft, which of the four forms of habituality
as aggravating circumstances may be considered by
the court?
The court may consider both Recidivism and
Habitual Delinquency. X is a habitual
delinquent, within 10 years from the date of his last
release or conviction of the crime of theft, he
committed another theft. He has been found guilty
three times of the crime of theft. Therefore he is a
Habitual Delinquent.
He is also a Recidivist because he has been
previously convicted by final judgment of the
crime of Theft, and another crime of robbery
which is embraced in the same title of the code.
Therefore he is also a recidivist.
Both aggravating circumstances may be
considered by the court because they have
different effects on the criminal liability of the
offender. If recidivism is not offset by a
mitigating circumstance it would mean the
imposition of the maximum period of penalty
for the crime of theft. But for being a Habitual
delinquent an additional penalty will be
imposed. So both may be considered by the court
in the imposition of penalty.
X committed homicide, convicted by final
judgment he is now serving his sentence at the
New Bilibid Prison. He engaged in a fight, he
inflicted serious physical injuries on another
inmate. So he is now prosecuted for serious
physical injuries. After trial on the merits, the judge
found him guilty beyond reasonable doubt of
serious physical injuries. In imposing the penalty
what forms of habituality as aggravating
circumstances may be considered?
Quasi-Recidivism and Recidivism. He is a
recidivist because at the time of trial for one
offense, he was previously convicted by final
judgment for another crime. He was previously
convicted of Homicide and he committed another
crime which is SPI and was found guilty by final
judgment thereof. The two crimes (homicide and
SPI) are embraced in the same title of the code.
Therefore he is a recidivist.
He is also a quasi-recidivist because at the time he
is serving sentence for a crime, he committed
another felony (serious physical injuries is a
felony).
The effect of recidivism is that it can be offset by
a generic mitigating circumstance, whereas quasi
recidivism cannot be offset by a mitigating
circumstance. Because under Art. 160 is a Special
Aggravating Circumstance, the maximum penalty
prescribed by law shall be imposed. He is both a
recidivist and quasi-recidivist. Can you appreciate
both?
No. You cannot appreciate both because they
have different effects. You better appreciate
recidivism because it can be offset by a mitigating
circumstance.
11. That the crime be committed in consideration of
a price, reward, or promise.
If the price, reward or promise, as a circumstance
is present in the killing of a person, it is not
considered as a generic aggravating person but a
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qualifying aggravating circumstance. It is one of
the qualifying circumstances under Art.248.
This aggravating circumstance should be
considered both against the person who made the
offer and the person who accepted the price,
reward or promise. Therefore, it is to be
considered both against the principal by
inducement and the principal by direct
participation.
To be considered against the principal by
inducement, it is necessary that the price, reward
or promise must be the prime reason for the
principal by direct participation committed the
crime. That without the price, reward or promise,
the principal by direct participation would not
have committed the crime.
12. That the crime be committed by means of
inundation, fire, poison, explosion, stranding of
a vessel or intentional damage thereto,
derailment of a locomotive, or by the use of any
other artifice involving great waste and ruin.
The offender makes use of inundation, fire or
explosion in order to commit the crime. It is a
means to commit the crime. If these means are
used in killing a person, it is not a generic
aggravating circumstance, it is a qualifying
aggravating circumstance under Article 248. It
qualifies the killing to murder.
13. That the act be committed with evident
premeditation.
Evident premeditation is the stubborn adherence
to a decision to commit a crime. It implies a
deliberate plan before or after the commission of
the crime.
Requisites of evident premeditation:
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. Sufficient lapse of time between the
determination and execution, to allow him to
reflect upon the consequences of his acts.
Ex: A slapped B two times in front of the public. B
felt so humiliated so he told A "the next time I see
you, I will kill you!" B went home and searched for
his gun. He found the same and kept it under his
pillow, waiting for the time to kill A. A month has
lapsed. B while walking saw A. upon seeing A, he
immediately run to his house, went to his
bedroom and took the gun under his pillow. He
raised back to A and shot him. Is the aggravating
circumstance of evident premeditation present?
First, the time when the offender determined to
commit the crime. That is the time when B told A
"the next time I see you, I will kill you!"
Second, an overt act manifestly indicating that he
has clung to his determination. He brought a gun.
It is an overt act showing that he has clung to his
determination.
Third, a sufficient lapse time between the
determination and execution. A month has
passed. That is sufficient for him to cool off, to
reflect upon the consequences of his acts.
Therefore, evident premeditation was present in
the commission of the crime.
14. That craft, fraud or disguise be employed.
There are three aggravating circumstances:
1. Craft
2. Fraud
3. Disguise
 Craft: intellectual trickery or cunning resorted
to by the accused
Example: The accused knocked at the door. He
knows that only the maid was at home. He told the
maid that he was a relative of the owners of the
house who came from the province. He was
allowed to enter the house, thereafter he
committed a crime of robbery. There was cunning
or intellectual trickery resorted to by the accused
for he tricked the maid to consummate the crime
of robbery.
 Fraud: Deceit. It is manifested by the use of
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insidious words or machinations resorted to
by the accused so that the offended party will
perform an act that will make the offender do
the crime easily.
Example: The offended party was about to sleep
on the upper portion of the house because the
lower portion is a store. The offender called over
the owner, saying that he was going to buy
something. The owner went down the house and
opened the store. However, upon opening the
store, he was stabbed and robbery was
committed. There was fraud as manifested by the
insidious words or machinations, resorted to by
the offender.
 Disguise: ways and means resorted to by the
accused to conceal his identity. Stockings,
bonnet or anything that could be used so that
one could not be recognized.
If despite disguise he is recognized, rule out
disguise as an aggravating circumstance as it did
not serve its purpose.
15. That advantage be taken of superior strength,
or means be employed to weaken the defense.
Requisites of Abuse of Superior Strength (ASS):
1. That there be a notorious inequality of
forces between the offender and the
offended party in terms of their age, size and
strength;
2. That the offender took advantage of this
inequality of forces to facilitate the
commission of the crime.
 Inequality of forces
Example: Offender enjoys numerical superiority
over that of the offended party
The mere fact that there was numerical
superiority does not automatically mean that
there is abuse of superior strength. Under the
second element, evidence must show that the
offender deliberately took advantage of their
strength to facilitate the commission of the crime.
Fantastico & Villanueva v. Malicse, Sr. &
People, G.R. No. 190912, 12 January 2015
Facts: One afternoon, Elpidio Malicse, Sr. was
under the influence of alcohol & was outside the
house of his sister Isabelita Iguiron. All of a sudden
he heard Isabelita’s son Winston, throwing
invectives at him. Elpidio confronted Isabelita but
she also cursed him, prompting him to slap his
sister. The barangay chairman tried to pacify the
situation, and Elpidio was persuaded to go home.
Thereafter he went back to Isabelita’s house to
offer reconciliation.
Upon reaching Isabelita's house, Elpidio saw the
former's son, Titus (Titus) and her son-in-law Gary
Fantastico (Gary) and asked the two where he can
find their parents. Titus and Gary responded,
“putang ina mo, and kulit mo, lumayas ka, punyeta ka.”
In his anger with the response of Titus and Gary,
Elpidio kicked the door open and saw Isabelita's
elder son, Salvador (Salvador) behind the door
holding a rattan stick or arnis. Salvador hit Elpidio
on the right side of his head that forced the latter
to bow his head but Salvador delivered a second
blow that hit Elpidio on the right eyebrow.
Salvador attempted to hit Elpidio for the third time
but the latter got hold of the rattan stick and the
two wrestled on the floor and grappled for the
possession of the same rattan stick. Then Titus ran
towards the two and sprayed something on
Elpidio's face. Not being able to free himself from
the clutches of Salvador and to extricate himself,
Elpidio bit Salvador's head.
Gary hit Elpidio on the right side of his head with
a tomahawk axe when the latter was about to go
out of the house. Elpidio tried to defend himself
but was unable to take the tomahawk axe from
Gary. Elpidio walked away from Titus but Gary,
still armed with the tomahawk axe and Salvador,
with his arnis, including Titus, chased him.
Roland (Rolly) Villanueva, without any warning, hit
Elpidio on the back of his head with a lead pipe
which caused the latter to fall on the ground.
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Elpidio begged his assailants to stop, but to no
avail. Salvador hit him countless times on his
thighs, legs and knees using the rattan stick. While
he was simultaneously being beaten up by
Salvador, Titus, Gary, Rolly, Nestor, Eugene and
Tommy, he tried to cover his face with his arm.
Gary hit him with the tomahawk axe on his right
leg, between the knees and the ankle of his leg,
which caused the fracture on his legs and knees.
Rolly hit Elpidio's head with a lead pipe, while
Tommy hit him with a piece of wood on the back
of his shoulder. They only stopped when a
bystander fainted because of the incident. Elpidio
then pretended to be dead. He was then rushed to
the hospital.
A case for attempted murder was filed against
Salvador, Titus, Saligan, Tommy, Nestor, Eugene
and petitioners Fantastico & Villanueva. The
information alleged that they acted with treachery
and took advantage of superior strength.
The RTC of Manila acquitted Titus, Saligan and
Tommy but convicted Fantastico and Villanueva
of attempted murder, and the CA affirmed the
conviction.
Issue: Whether treachery and ASS are not present.
Ruling:
There was an abuse of superior strength
The RTC, however, was correct in appreciating the
qualifying circumstance of abuse of superior
strength, thus: xxx it was a lopsided attack as the
victim was unarmed, while his attackers were
all armed (rattan stick, tomahawk and lead
pipe). And the victim was also drunk. This
establishes the element of abuse of superior
strength. The suddenness of the blow inflicted
by Salvador on Elpidio when he entered the
premises show that the former was ready to hit
the victim and was waiting for him to enter. It
afforded Elpidio no means to defend himself.
And Salvador consciously adopted the said
actuation. He hit Elpidio twice on the head.
Abuse of superior strength is present whenever
there is a notorious inequality of forces between
the victim and the aggressor, assuming a situation
of superiority of strength notoriously
advantageous for the aggressor selected or taken
advantage of by him in the commission of the
crime." "The fact that there were two persons who
attacked the victim does not per se establish that
the crime was committed with abuse of superior
strength, there being no proof of the relative
strength of the aggressors and the victim." The
evidence must establish that the assailants
purposely sought the advantage, or that they had
the deliberate intent to use this advantage. "To take
advantage of superior strength means to purposely
use excessive force out of proportion to the means
of defense available to the person attacked." The
appreciation of this aggravating circumstance
depends on the age, size, and strength of the parties
[end].
People v. Nazareno, G.R. No. 196434, 24
October 2012
Facts: One day David Valdez, Magallanes and
Francisco attended the wake of a friend. There they
drank with the accused Nazareno and Saliendra. A
heated argument ensued between Magallanes and
Saliendra, but they were eventually pacified.
David, Magallanes, and Francisco returned to the
wake the next day. Nazareno and Saliendra also
arrived and told the three not to mind the previous
night's altercation. At around 9:30 in the evening,
while David, Francisco, and their friend, Aida
Unos were walking on the street, Nazareno and
Saliendra blocked their path. Nazareno boxed
Francisco who fled but Saliendra went after him
with a balisong. Francisco, who succeeded in hiding
saw Nazareno hit David on the body with a stick
while Saliendra struck David's head with a stone.
David ran towards a gasoline station but Nazareno
and Saliendra, aided by some barangay tanods, caught
up with him. As David fell, the barangay tanods took
over the assault. Afterwards, Unos brought David
to the hospital, but David died.
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Nazareno and Saliendra were charged with murder
before the RTC of Manila. Since Saliendra was at-
large, only Nazareno was tried and subsequently
convicted of murder, qualified by ASS and
aggravated by treachery. The CA affirmed the
RTC but held that there was no treachery.
Issue: Whether ASS was not present the killing of
David.
Ruling: Petition DENIED.
There is abuse of superior strength when the
aggressors purposely use excessive force rendering
the victim unable to defend himself. The notorious
inequality of forces creates an unfair advantage for
the aggressor.
Here, Nazareno and Saliendra evidently armed
themselves beforehand, Nazareno with a stick and
Saliendra with a heavy stone. David was unarmed.
The two chased him even as he fled from them.
And when they caught up with him, aided by some
unnamed barangay tanods, Nazareno and Saliendra
exploited their superior advantage and knocked the
defenseless David unconscious. He evidently died
from head fracture caused by one of the blows on
his head [end].
16. That the act be committed with treachery
(alevosia).
There is treachery when the offender
commits any of the crimes against the person,
employing means, methods, or forms in the
execution thereof which tend directly and
specially to insure its execution, without risk to
himself arising from the defense which the
offended party might make.
The essence of treachery is the suddenness
and unexpectedness of the act to unexpecting
and unarmed victim who has not given the
slightest provocation. The victim must be
totally without defense.
If the victim was able to put out any defense, no
Elements of treachery:
1. That the offender deliberately adopted the
particular means, method or form of attack
employed by him;
2. That at the time of the attack, the victim
was not in a position to defend himself.
But see Fantastico v. Malicse, Sr. and other
assigned cases:
1. the employment of means of execution
that gives the persons attacked no
opportunity to defend themselves or
retaliate; and
2. the means of execution were deliberately
or consciously adopted.
matter how minor, treachery is not present. Spur
of the moment attacks are not treacherous, they
lack element No. 1.
People v. Feliciano, Jr., et al., G.R. No. 196735,
5 May 2014 [See pg. 76]
Facts: Seven members of the Sigma Rho fraternity
were eating lunch in UP Diliman when they were
suddenly attacked by several masked men who
were armed with baseball bats and lead pipes.
Some sustained injuries which required
hospitalization, but one of them-Venturina-died
due to traumatic head injuries.
Informations for murder for Venturina’s death, as
well as the attempted murder and frustrated
murder of some Sigma Rho members were filed in
the RTC of QC against several members of
Scintilla Juris fraternity, namely Feliciano, Alvir,
Soliva, Zingapan (appellants Feliciano, et al.) and
several others. The information alleged the
attendance of treachery, evident premeditation
and ASS.
The RTC convicted Feliciano, et al. of murder and
attempted murder, and acquitted the other co-
accused, holding that Feliciano, et al. were
positively identified by witnesses as the attackers.
It held that the ACs of ASS, aid of armed men and
treachery were present.
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The CA affirmed the RTC ruling, but modified
their criminal liabilities. It ruled out the presence
of treachery.
Issue: Whether treachery attended the attack.
Ruling:
As correctly found by the trial court and the
appellate court, the offense committed against
Dennis Venturina was committed by a group that
took advantage of its superior strength and with
the aid of armed men. The appellate court,
however, incorrectly ruled out the presence of
treachery in the commission of the offense.
There is treachery when the offender commits any
of the crimes against persons, employing means,
methods, or forms in the execution, which tend
directly and specially to insure its execution,
without risk to the offender arising from the
defense which the offended party might make.
The essence of treachery is that the attack
comes without a warning and in a swift,
deliberate, and unexpected manner, affording
the hapless, unarmed, and unsuspecting
victim no chance to resist or escape. For
treachery to be considered, two elements must
concur: (1) the employment of means of execution
that gives the persons attacked no opportunity to
defend themselves or retaliate; and (2) the means
of execution were deliberately or consciously
adopted. (Emphasis supplied).
The appellate court, in affirming the conviction of
the accused- appellants, ruled that contrary to the
findings of the trial court, there was no treachery
involved. In particular, they ruled that although the
attack was sudden and unexpected, “[i]t was done
in broad daylight with a lot of people who could
see them” and that “there was a possibility for the
victims to have fought back or that the people in
the canteen could have helped the victims.”
This reasoning is clearly erroneous. The victims in
this case were eating lunch on campus. They were
not at a place where they would be reasonably
expected to be on guard for any sudden attack by
rival fraternity men.
The victims, who were unarmed, were also
attacked with lead pipes and baseball bats. The only
way they could parry the blows was with their arms.
In a situation where they were unarmed and
outnumbered, it would be impossible for them to
fight back against the attackers. The attack also
happened in less than a minute, which would
preclude any possibility of the bystanders being
able to help them until after the incident.
The swiftness and the suddenness of the attack
gave no opportunity for the victims to retaliate or
even to defend themselves. Treachery, therefore,
was present in this case [end].
Note: If treachery is present in robbery with
homicide, it is appreciated only in the killing. Note
that “homicide” here is used in the generic sense;
it includes murder.
Also, in People v. Feliciano, Jr, et al.: when ASS
& treachery are present, treachery absorbs ASS.
Also: nighttime is absorbed by treachery.
Examples of treachery:
A was about to stab B but he was able to parry the
blow, that is already a defense on his part. He was
able to run away, that is already considered as a
defense. Treachery is no longer present. It is
necessary that the offended party or the victim
must be totally without defense.
What if the attack is a frontal attack?
Even if it is a frontal attack, if it is so sudden,
unexpected, such that the offended party would
not be aware of it and was not able to put up any
defense, there is still treachery (People v.
Matibag).
People v. Matibag, G.R. No. 206381, 25 March
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2015
Facts: Matibag was charged in the RTC of
Batangas City with murder with the qualifying
circumstance of treachery and special aggravating
circumstance of the use of unlicensed firearm for
the killing of Enrico Clar de Jesus Duhan.
One evening, Duhan, who just came from a
meeting with the other officers of the
homeowners’ association a subdivision, was
walking along the street when Matibag confronted
Duhan, and asked, “ano bang pinagsasasabi mo?”
Duhan replied “wala,” and without warning,
Matibag delivered a fist blow hitting Duhan on the
left cheek and causing him to teeter backwards.
Matibag then pulled out his gun and shot Duhan,
who fell face-first on the pavement. While Duhan
remained in that position, Matibag shot him
several more times.
Matibag alleged that he was at his friend’s despedida
party when Duhan arrived. Wanting to settle a
previous misunderstanding, Matibag extended his
hand to Duhan as a gesture of reconciliation.
However, Duhan pushed it away and said, “putang
ina mo, ang yabang mo,” thereby provoking Matibag
to punch him in the face. Matibag saw Duhan pull
something from his waist and fearing that it was a
gun and Duhan was about to retaliate, Matibag
immediately drew his own gun, shot Duhan, and
hurriedly left the place.
The RTC convicted Matibag as charged,
appreciating both treachery and the use of an
unlicensed firearm. The CA affirmed the RTC
decision in toto.
Issue: Whether the CA incorrectly upheld the
conviction for murder.
Ruling: Appeal DENIED.
The essence of treachery is the sudden and
unexpected attack, without the slightest
provocation on the part of the person attacked. In
People v. Perez, it was explained that a frontal attack
does not necessarily rule out treachery. The
qualifying circumstance may still be
appreciated if the attack was so sudden and so
unexpected that the deceased had no time to
prepare for his or her defense.
In this case, the prosecution was able to prove that
Matibag, who was armed with a gun, confronted
Duhan, and without any provocation, punched and
shot him on the chest. Although the attack was
frontal, the sudden and unexpected manner by
which it was made rendered it impossible for
Duhan to defend himself, adding too that he was
unarmed. Matibag also failed to prove that a heated
exchange of words preceded the incident so as to
forewarn Duhan against any impending attack
from his assailant. The deliberateness of Matibag’s
act is further evinced from his disposition
preceding the moment of execution. As the RTC
aptly pointed out, Matibag was ready and destined
to effect such dastardly act, considering that he had
an axe to grind when he confronted Duhan,
coupled with the fact that he did so, armed with a
loaded handgun. Based on these findings, the
Court concludes that treachery was correctly
appreciated [end].
A and B were walking towards each other. When
near enough, B suddenly stabbed A. It was a
frontal attack yet obviously there was treachery.
A was totally defenseless and B deliberately and
consciously adopted the means in the commission
of the crime.
Treachery and conspiracy may be appreciated
together.
People v. Gunda, G.R. No. 195525, 5 February
2014
Treachery is a qualifying circumstance which
would qualify the killing as murder, while
conspiracy is neither a qualifying circumstance
[nor] a generic aggravating circumstance to
warrant the imposition of the supreme penalty
of death.
Facts: One afternoon, the victim Eladio Globio,
Sr., and his son Eladio Jr., were walking along a
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trail. Suddenly, when Eladio Jr. was ahead of his
father, the latter was waylaid by appellant Gunda
and his unidentified companions. The John Does
held Eladio Sr.’s arms while Gunda stabbed him
several times. Fearing for his life, Jr. ran away.
An information was filed in the RTC of Borongan,
Easter Samar, charging Gunda and the John Does
of murder, alleging that they acted in conspiracy
and with evident premeditation and treachery. The
John Does remained at large, and only Gunda was
arraigned.
The RTC convicted Gunda of murder and
sentenced him to suffer the death penalty, holding
that treachery and conspiracy are qualifying
circumstances.
The CA affirmed the conviction but lowered the
penalty to reclusion perpetua, holding that treachery
is a qualifying, not an aggravating circumstance,
and that conspiracy is neither a qualifying nor a
generic aggravating circumstance which would
warrant the imposition of the death penalty.
Ruling: Appeal DISMISSED.
There is also no doubt in our mind that the attack
on the victim was attended by treachery. The
victim was unarmed and had no inkling of the
impending attack on his person. In fact, he was just
on his way home together with his son Eladio Jr.
The victim was attacked by Gunda from behind
with a blow to his head with a wooden pole. His
cohorts then held the victim’s arms rendering him
helpless and immobile. In such position, there is
no opportunity for the victim to escape or even
offer a feeble resistance. Gunda then delivered the
coup de grâce by stabbing the victim multiple times.
Undoubtedly, treachery qualified the killing to
murder. “There is treachery when the offender
commits [a crime] against the person, employing
means, methods or forms in the execution thereof
which tend directly and specially to insure its
execution, without risk to himself arising from the
defense which the offended party might make.” As
regards conspiracy, the CA correctly ruled that it is
not a circumstance which would aggravate or
qualify the crime [end].
A prisoner arrived at the police station. Upon
removal of his handcuffs, he immediately grab the
pistol of the arresting officer. Thereafter he went
out pointing the said gun. Upon seeing a woman
who was getting inside the PNP station, he shot
the woman. The woman died. Is the aggravating
circumstance of treachery present?
The aggravating circumstance of treachery is not
present [as] it is a mere chance encounter. The
first element is wanting. There is no showing
the offender deliberately adopted the
particular means, method or form of attack
employed by him in killing the woman.
[If the situation is that the prisoner was left in a
room and upon the cop’s return, the prisoner
forcibly took the gun & shot the cop, there is
treachery].
Fantastico & Villanueva v. Malicse, Sr. &
People, G.R. No. 190912, 12 January 2015
Facts: See facts in ASS, pg. 147.
Issue: Whether treachery and ASS are not present.
Ruling: There was no Treachery
For treachery to be considered, two elements must
concur:
(1) the employment of means of execution that
gives the persons attacked no opportunity to
defend themselves or retaliate; and
(2) the means of execution were deliberately or
consciously adopted.
From the facts proven by the prosecution, the
incident was spontaneous, thus, the second
element of treachery is wanting. The incident,
which happened at the spur of the moment,
negates the possibility that the petitioners
consciously adopted means to execute the crime
committed. There is no treachery where the attack
was not preconceived and deliberately adopted but
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was just triggered by the sudden infuriation on the
part of the accused because of the provocative act
of the victim [end].
People v. Vilbar, G.R. No. 186541, 1 February
2012
Facts: One evening, Vilbar was in a drinking spree
with three companions in a well-lit area of the
Ormoc Public Market. One of his companions
urinated at one of the tables in front of the nearby
stall of Maria Liza Patricio. Her husband, the
victim Guilbert Patricio, admonished the urinating
man when Vilbar rose from his seat and stabbed
Guilbert.
Vilbar was charged with murder, with treachery
and evident premeditation, in the RTC of Ormoc
City, and he was found guilty as charged. The CA
did not find that treachery attended the stabbing
and downgrade the crime to homicide.
Issue: Whether treachery attended the stabbing.
Ruling:
We agree with the Court of Appeals that accused-
appellant is guilty only of homicide in the absence
of the qualifying circumstance of treachery.
In a number of cases, surveyed in People v. Rivera,
we ruled that treachery cannot be appreciated
simply because the attack was sudden and
unexpected. “We cannot presume that
treachery was present merely from the fact that
the attack was sudden. The suddenness of an
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 xxx The circumstance that an attack
was sudden and unexpected to the person
assaulted did not constitute the element of
alevosia necessary to raise homicide to
murder, where it did not appear that the
aggressor consciously adopted such mode of
attack to facilitate the perpetration of the
killing without risk to himself.” Similar to Rivera
and the cases cited therein, the prosecution in the
instant case merely showed that Vilbar attacked
Guilbert suddenly and unexpectedly, but failed to
prove that Vilbar consciously adopted such mode
of attack to facilitate the perpetration of the killing
without risk to himself.
As aptly observed by the Court of Appeals: “While
it appears that the attack upon the victim was
sudden, the surrounding circumstances attending
the stabbing incident, that is, the open area, the
presence of the victim's families and the attending
eyewitnesses, works against treachery. If accused-
appellant wanted to make certain that no risk
would come to him, he could have chosen another
time and place to stab the victim. Yet, accused-
appellant nonchalantly stabbed the victim in a
public market at 7:00 o'clock in the evening. The
place was well-lighted and teeming with people. He
was indifferent to the presence of the victim's
family or of the other people who could easily
identify him and point him out as the assailant. He
showed no concern that the people in the
immediate vicinity might retaliate in behalf of the
victim. In fact, the attack appeared to have been
impulsively done, a spur of the moment act in the
heat of anger or extreme annoyance. There are no
indications that accused-appellant deliberately
planned to stab the victim at said time and place.
Thus, we can reasonably conclude that accused-
appellant, who at that time was languishing in his
alcoholic state, acted brashly and impetuously in
suddenly stabbing the victim. Treachery just
cannot be appreciated” [end].
People v. Dulin, G.R. No. 171284, 29 June 2015
Facts: See page 89, case on Justifying
Circumstances-self-defense.
Issue: Whether treachery attended the stabbing.
Ruling: The RTC & CA erred in appreciating
the attendance of treachery.
Based on the established facts, Dulin and
Batulan grappled for control of the weapon
Batulan had initially wielded against Dulin, who
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divested Batulan of it and ran with it into the
house of Danao, with Batulan in immediate
pursuit. They continued to grapple for the
weapon inside the house of Danao, and it was
at that point when Dulin stabbed Batulan
several times. Under the circumstances,
treachery should not be appreciated in the
killing of Batulan because the stabbing by
Dulin did not take Batulan by surprise due
to his having been sufficiently forewarned of
Dulin’s impending assault, and being thus
afforded the opportunity to defend himself, or
to escape, or even to recover control of the
weapon from Dulin. The essence of
treachery is that the attack comes without
warning, or is done in a swift, deliberate
and unexpected manner, affording the
hapless, unarmed and unsuspecting victim
no chance to resist or to escape, without
the slightest provocation on the part of the
victim. The mode of attack must not spring
from the unexpected turn of events.
Consequently, Dulin should be liable only for
homicide [end].
A was found on the street. He has 10 stab wounds
all at the back. No one saw the commission of the
crime. However A witness claimed that he saw X
leaving the place with a weapon full of blood.
X was arrested. Is treachery present?
No, treachery is not present because the witness
failed to observe the start or the commencement
of the attack. For treachery to arise it is
necessary that he must be present at the
commencement of the attack in order to know
whether the offended party was totally
defenseless.
*People v. Bokingco and Leviste cases: Since no
one saw the commencement of the attack,
treachery is not present. [But see below People
v. Tabarnero].
The witness saw A and B were holding on X. Both
his hands were held at the back by A and B. He was
being attacked by Y. The witness did not see how
the attack commenced but only that he was
attacked by Y while his hands were held by A and
B. Is there treachery?
Yes, in the case of People v. Tabarnero, SC held
that there was treachery. The witness did not
see the commencement of the attack,
however, he saw that there was restraint on
the person of X. What the witness saw was that
the hands of the victim were being held at the
back while he was being attacked. That suffices
because there was restraint on the person of the
victim. The SC held that even the witness did not
observe the commencement of the attack, since
there was restraint on his person, he was totally
defenseless, treachery is present according to the
Supreme Court. [Tabarnero: there is treachery
where the victim was stabbed in a defenseless
situation, as when he was being held by the
others while he was being stabbed.]
X went to the house of Y, because Y borrowed
money from X. So X told Y that he should pay the
money now. But Y said that he has no money, so
X got so mad and ordered his two body guards to
hold Y, and while the two body guards held the
hands of Y at the back, X repeatedly stabbed Y to
death. X and his body guards are now prosecuted
for murder. The information alleged two
qualifying aggravating circumstances, Treachery
and abuse of superior strength. Are both present?
Only abuse of superior strength is present and
treachery is absorbed (?) and . Treachery is not
present because the first element (offender
deliberately adopted the particular means, method
or form of attack employed by him) is absent. The
commission of the said crime of killing happened
at the spur of the moment, when Y failed to pay,
X got mad, it was only at that time that X has
decided, therefore he did not deliberately adopted
the particular means, method or form of attack
employed. The first element being absent
treachery would not lie.
There is obviously abuse of superior strength.
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There is notorious inequality of forces. Two men,
the bodyguards were holding the hands of Y as X
repeatedly stabbed him. Obviously these three
persons took advantage of their superiority of
strength in order to facilitate the commission of
the crime. Both elements for the abuse of superior
strength is present [See Fantastico v. Malicse, Sr.
as it has similar facts].
X is the driver of Atty.Y and after bringing Atty. Y
to the office for attending a court hearing. X talked
to the secretary of Atty.Y and X told the secretary
"if I couldn't control myself, I could kill Atty.Y, he
has been a very abusive employer, giving me bad
food, insulting me. If I lost control of myself I'm
going to kill him." So X narrated that to the
Secretary of Atty.Y. After came back from the
court at nighttime X brought Atty.Y at his house.
Atty. Y alighted to the house. Meanwhile X
brought the attaché case to the house, and
thereafter went to the kitchen, got a water and
took a kitchen knife, went to the bedroom of Atty.
Y, then X stabbed Atty.Y repeatedly. What
aggravating circumstances attended the
commission of the crime?
There was no evident premeditation, the time that
the offender was determined to commit the crime,
his utterances or narration to the secretary cannot
be considered as determination to kill because he
said "if I lost control" or "pag hindi ako
nakapagpigil." Therefore he is not determined to
kill. And the second element, there is no overt act
that he has clung to his determination. Likewise
there is no sufficient lapse of time, he said that to
the secretary in the morning and he committed the
crime in the evening. When he brought back the
Atty. to the house he immediately committed the
crime.
There was Dwelling in the commission of the
crime. The driver could have killed the Atty. in any
other place, while in the car or in the office, while
alighting the vehicle but he killed the lawyer inside
the latter's house, therefore there was disrespect in
the dwelling of the said atty.
There was Treachery in the commission of the
crime. He went to the kitchen took the kitchen
knife and thereafter went to the room of Atty. he
deliberately and consciously adopted the means to
be used in the commission of the crime. Upon
opening the door he immediately stabbed the
victim, the victim was totally without or not in a
position to defend himself. Therefore treachery
was present.
There was also Abuse of Confidence in the
commission of the crime. The Atty. trusted the
driver, in fact he was the one bringing him to and
from office/house, and by reason of said trust and
confidence it facilitated the commission of the
crime.
What if, in a case for murder, treachery, ASS,
cruelty, price, reward or promise were all proven?
The crime is Murder qualified by treachery.
Cruelty & price, reward or promise are treated as
generic ACs, thus the maximum penalty shall be
imposed, which is death. However, death penalty
is suspended, so the proper penalty is reclusion
perpetua.
17. That means be employed or circumstances
brought about which add ignominy to the
natural effects of the act.
Ignominy: a moral circumstance which adds to the
injury suffered by the victim. It is humiliation,
embarrassment, moral killing.
It pertains to the moral order, which adds
disgrace to the material injury caused by the
crime. Ignominy adds insult to injury or adds
shame to the natural effects of the crime. Ignominy
shocks the moral conscience of man (GN 2016).
People vs. Domingo
A raped B. before killing B, A raped B in the
presence of his father. Before A raped B in the
presence of his father, he used a flashlight to
examine the genitalia of B likewise in the
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presence of the father. Is the aggravating
circumstance of ignominy present?
Yes it is present. The examination of the genitalia
of the victim is not necessary in the commission
of the crime of rape. Such act of the offender
merely add to the moral pain, moral suffering of
the victim, especially it was done in the presence
of the father. Therefore ignominy is present.
People v. _____________________
A raped B. B filed a case of raped against A. when
B testified in court, that when A raped her, he used
the dog style position. The entry of the penis was
from behind, not the normal act in having sexual
intercourse. RTC did not consider ignominy.
However, the SC held that it was erroneous for the
RTC not to have considered ignominy as an
aggravating circumstance.
People vs Fernandez
A woman victim of rape was found in a vacant lot.
Her genitalia was full of mud. SC held that there
was ignominy. The placing of mud in the genitalia
add moral pain, moral suffering to the victim.
18. That the crime be committed after an unlawful
entry.
There is an unlawful entry when an
entrance is effected by a way not intended for
the purpose.
NOTE: unlawful entry is inherent in the crimes of
trespass to dwelling & robbery with force upon
things. But it is aggravating in the crime of robbery
with violence against or in intimidation of persons
(GN 2016).
Prosec. G: the door is the [only means] intended
for entry. So if you break a window, make an
opening in the wall, it is unlawful entry. Even if
one of the residents made a secret passageway
through a wall, and the accused used this
passageway to enter, Art. 18 is attendant.
19. That as a means to the commission of a crime a
wall, roof, floor, door, or window be broken.
Unlawful Entry (18) Breaking Wall (19)
Presupposes that there Involves the breaking
is no breaking as by of the enumerated
entry through the parts of the house.
window.
(GN 2016)
Example:
A was on vacation. B knew that A was on vacation.
He saw that the window on the third floor of the
house was open. He got a ladder and placed it in
the window, climbed it and entered the house.
Then he took the valuables, got out through the
window. Is the aggravating circumstance of
unlawful entry present?
No, it is not present. The reason is that, the fact
that a crime was committed after an unlawful
entry is inherent in the commission of the crime
because the crime committed is robbery under
Art. 299, robbery with use of force upon things.
The essence of robbery, is in the act of unlawful
entry. The entry was done through a means not
intended for anything that is to a window. Thus,
the fact that a crime was committed after an
unlawful entry is not an aggravating
circumstance.
A was passing by the house of B. Suddenly he saw
through the window, two cellphones being
charged. Interested on the cellphones, he broke
the window entered his hand and took the
cellphones. Is the aggravating circumstance, that
as a means to the commission of the crime the
window was broken present?
Yes it is present because the crime committed is
theft only and not robbery. The crime committed
was theft not robbery because the offender did
not enter the house. For robbery to arise it is
necessary that the offender enter the said place
and take the cellphones. He only broke the
window, entered his hand and took the
cellphones. Therefore the crime committed is
theft. In theft, the fact that a window was broken
is not inherent it is an aggravating circumstance.
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X entered the house of Y but passing thru an open
window. Once inside he killed Y. What is the crime
committed? What is the aggravating circumstance?
The crime committed is murder and the
aggravating circumstance of unlawful entry. There
is unlawful entry because the crime of killing of the
said victim was done after passing thru the
window. The crime was committed after an
unlawful entry.
What if in the same problem, X entered the house
of Y but passing thru the window. The intention
was to commit robbery he got the valuables but
the owner is awakened. So X upon seeing Y, who
cried for help, shot Y. Thereafter he left again
passing thru the window. What crime is
committed? Is the unlawful entry an aggravating
circumstance?
The crime is Robbery with homicide. The unlawful
entry is not considered an aggravating
circumstance. It is inherent in the commission of
the crime.
X made an opening on the roof of Y and thereafter
X with the use of a rope with a hook was able to
take the valuables on top of the table inside the
same house. What crime is committed? What is the
aggravating circumstance?
The crime committed is Theft. Unlawful entry is
the aggravating circumstance. The roof was
broken as a means to commit the crime in order
to get the things on the table.
In order to bring about Robbery, the entire body
of the offender must enter the place. So even if the
offender makes some opening, or broke any roof,
floor, etc. but he did not enter the said opening,
and just devise means to get the things, the crime
is only THEFT. Unlawful entry is an aggravating
circumstance and not inherent in the commission
of the crime.
20. That the crime be committed with the aid of
persons under fifteen years of age or by means
of motor vehicles, motorized watercraft,
airships, or other similar means. (As amended
by RA 5438).
If the crime committed makes use of minors
under 15 years of age, it shows the greater
perversity of the offender because he knows that
minors cannot be arrested. Persons below 15
years of age cannot be prosecuted, it is among the
exempting circumstances. Therefore, it shows
greater perversity.
If the crime is committed with the use of motor
vehicle in killing a person, it is a qualifying
aggravating circumstance under article 248. If the
motor vehicle is used in the commission of any
other crime, it is a mere generic aggravating
circumstance.
X was driving a car. Thereafter, the traffic lights
went red so he stop. Suddenly a motor cycle
appeared near him. There were two persons riding
the motor cycle, the person on the back started to
shoot him. X died. In the commission of the said
crime, is the aggravating circumstance of use of
motor vehicle present?
It is present. The said killing is done by means of
a motor vehicle.
Two persons riding a motorcycle approached X.
The backrider suddenly grabbed X’s handbag and
thereafter sped away. Is the AC of use of motor
vehicle present?
A: Yes. Their use of the motorcycle facilitated the
commission of the crime, and it was committed
using the motorcycle. It would be hard for them
to approach X and escape afterwards without the
vehicle.
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21. That the wrong done in the commission of the
crime be deliberately augmented by causing
other wrong not necessary for its commission.
Elements of Cruelty (Art. 14, Par. 21):
1. That at the time of the infliction of the
physical pain, the offended party is still
alive.
2. That the offender enjoys and delights in
seeing his victim suffer gradually by the
infliction of the physical pain.
If ignominy refers to the moral pain, cruelty
pertains to the additional physical pain other than
that which is necessary in the commission of the
crime.
Ignominy Cruelty
Victim suffered moral Victim suffered
pain. physical pain or
physical suffering.
The victim can either Necessary that the
be alive or dead. victim is alive.
Example:
A person was found dead with several wounds all
over his body. Is the fact that he has several
wounds on different parts of his body mean that
there was cruelty?
No. the fact that there was 25-50 wounds cannot
immediately mean that there was cruelty in the
commission of the crime. It is necessary to
determine, whether first, he was still alive at the
time the physical pain was inflicted; second, did
the offender enjoy and delight in seeing his victim
suffer gradually by the infliction of the physical
pain? If there were defense wounds, cruelty
cannot be appreciated.
Aggravating Circumstances other than those
in Article 14
 Use of unlicensed firearms (PD 1866 as
amended by RA 8294 and RA 10591) as a
special aggravating circumstance.
A killed B by means of an unlicensed firearm. B
died and A was arrested. The firearm was
recovered. Two cases were filed against A:
murder or homicide as the case maybe and illegal
possession of unlicensed firearm under PD. 1866
as amended by RA 8294. Are the charges correct?
No, under section 1 of PD. 1866 as amended by
RA 8294 if homicide or murder is committed with
the use of an unlicensed firearm, such use of
unlicensed firearm shall be considered as an
aggravating circumstance. Therefore, there shall
only be the charge of murder or homicide as the
case maybe. The use of the unlicensed firearm
shall be alleged in the information as an
aggravating circumstance.
A killed B by means of an unlicensed firearm. An
information was filed charging A with the crime
of homicide. It is alleged in the information that A
shot B with the use of unlicensed firearm. During
trial the same was proven. Judge convicted A for
the crime of murder and considered the use of
unlicensed firearm as a generic aggravating
circumstance. The judge opined that Section 1 of
PD. 1866 as amended by RA 8294 is silent as to
what kind of aggravating circumstance the use of
firearms. The principle that penal laws should be
construed liberally in favor of the accused should
be applied. Is the judge correct?
No, the judge is wrong because the SC has long
ruled that the use of the unlicensed is a special
aggravating circumstance which cannot be offset
by any mitigating circumstance.
A father and son had an argument. The son shot
his father with an unlicensed firearm. The father
died. Two cases were filed against the son:
parricide and illegal possession of unlicensed
firearm. The fiscal opined that under section 1 of
PD. 1866 as amended by RA 8294 if homicide or
murder is committed with the use of an
unlicensed firearm, such use of unlicensed
firearm shall be considered as an aggravating
circumstance. It did not provide for parricide,
therefore two cases should be filed. Is the fiscal
correct?
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No, the fiscal is wrong. SC has already ruled, that
the words homicide and murder in the said law is
used in its generic sense. Therefore it includes all
kinds of killing where the penalty prescribed by
law is the same as murder which is reclusion
perpetua to death. The penalty prescribed by law
is reclusion perpetua to death.
X and Y, father and son had an argument. The son
took out his pistol, an unlicensed and unregistered
pistol and shot his father. The father died. What
crime is committed? How will you consider to the
use of an unlicensed firearm in the commission of
the crime.
The crime committed is Parricide. The use of the
unlicensed firearm is considered as a special
aggravating circumstance.
Section 29, RA 10951: Use of Loose Firearm in the
Commission of a Crime. – The use of a loose
firearm, when inherent in the commission of a
crime punishable under the Revised Penal Code
or other special laws, shall be considered as an
aggravating circumstance: Provided, That if the
crime committed with the use of a loose firearm is
penalized by the law with a maximum penalty which
is lower than that prescribed in the preceding section
for illegal possession of firearm, the penalty for
illegal possession of firearm shall be imposed in lieu
of the penalty for the crime
charged: Provided, further, That if the crime
committed with the use of a loose firearm is
penalized by the law with a maximum penalty which
is equal to that imposed under the preceding section
for illegal possession of firearms, the penalty
of prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime
punishable under the Revised Penal Code or other
special laws of which he/she is found guilty.
If the violation of this Act is in furtherance of, or
incident to, or in connection with the crime of
rebellion of insurrection, or attempted coup d’
etat, such violation shall be absorbed as an
element of the crime of rebellion or insurrection, or
attempted coup d’ etat.
If the crime is committed by the person without
using the loose firearm, the violation of this Act
shall be considered as a distinct and separate
offense.
If the use of the unlicensed firearm is inherent in
the commission of the crime punishable under the
RPC or under Special Penal Laws, it is considered
as an AGGRAVATING CIRCUMSTANCE.
Whatever be the crime committed, whether
under the RPC or SPL, if the use of such firearm
is inherent in commission of the crime, is
considered as an aggravating circumstance.
X stabbed why to death, thereafter X was arrested.
When a body search was conducted, a firearm was
found. What crime is committed by X?
Two crimes are committed. Homicide and Illegal
Possession of Loose Firearm. SEC. 29 (3), “If the
crime is committed by the person without using the loose
firearm, the violation of this Act shall be considered as a
distinct and separate offense”. Thus 2 cases must be
filed.
X carnapped Y’s car. He also shot to death Y with
a loose firearm. He was charged with qualified
carnapping and illegal possession of loose firearm.
Are the charges correct?
A: No, it should only be qualified carnapping. In
the killing of Y, the use of the loose firearm was
inherent in the killing, hence under Sec. 29, 1st par
of RA 10591, the use of the loose firearm is a
special AC.
NOTE: Even if the firearm is licensed, if it is used
in the commission of a crime, it is considered a
loose firearm. This is covered by the definition of
“loose firearm” (1 March 2017).
 Use of dangerous drugs as a qualifying
AC (Sec. 25, RA 9165)
A killed B. thereafter he chopped the body of B.
because of the manner employed by the accused
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in killing the victim, the police suspected that he
was under the influence of prohibited drugs. He
was brought to the PNP crime laboratory for
forensic examination. The results provided that
he was under the influence of prohibited drugs.
What is the effect of the positive result of the said
examination on the commission of the crime of
the said accused?
Under Section 25 of RA 9165, when a crime is
committed by an offender under the influence of
dangerous drugs, such state shall be considered
as a qualifying aggravating circumstance.
Therefore, it will bring about a change in the
nature of the crime to a more serious crime with
a higher penalty.
The accused after brutally killing the victim and the
police suspected he was under the influence of
drugs. He was subjected to drug test, and was
found to be under the influence of dangerous
drugs. What is the effect of such positive finding
on the criminal liability of the crime?
Under Sec. 25 of RA9165, Qualifying Aggravating
Circumstances in the Commission of a Crime by an
Offender Under the Influence of Dangerous Drugs. -
Notwithstanding the provisions of any law to the contrary,
a positive finding for the use of dangerous drugs
shall be a qualifying aggravating
circumstance in the commission of a crime by
an offender, and the application of the penalty
provided for in the Revised Penal Code shall
be applicable.
So the crime will now be from homicide to
MURDER. It changes the nature of the crime to
bring about a more serious crime imposing a
higher penalty.
But there is a new decision by the SC, Dela Cruz
v. People (2015) (Syllabus under RA 9165)
Facts: The offender was charged with Robbery
with extortion. Suspected under the influence of
drugs and thus was forced to give urine for testing.
He was found positive for used of dangerous
drugs. Aside from robbery with extortion, he was
charged under RA9165 under sec. 15.
Convicted by the RTC, Conviction affirmed by the
CA.
SC: The drug test violated his right to privacy and
right against self-incrimination. He must be
acquitted for illegal use of dangerous drugs.
Section 15. Use of Dangerous Drugs. - A person
apprehended or arrested, who is found to be positive for use
of any dangerous drug, after a confirmatory test, shall be
imposed a penalty of a minimum of six (6) months
rehabilitation in a government center for the first offense,
subject to the provisions of Article VIII of this Act. If
apprehended using any dangerous drug for the second time,
he/she shall suffer the penalty of imprisonment ranging from
six (6) years and one (1) day to twelve (12) years and a fine
ranging from Fifty thousand pesos (P50,000.00) to Two
hundred thousand pesos (P200,000.00): Provided, That
this Section shall not be applicable where the person tested
is also found to have in his/her possession such quantity of
any dangerous drug provided for under Section 11 of this
Act, in which case the provisions stated therein shall apply.
The first element that the accused was
apprehended or arrested for the commission of
the crime does not refer to any other crime. It
refers only to crimes under Art. 2 of RA9165. So
based on this decision, if the crime committed by
the offender is outside the scope of RA 9165, the
police cannot subject him to drug testing. No
person may be placed under mandatory drug
testing because it is against his right to privacy and
self-incrimination.
Applying such decision, this confirmatory test will
only apply if the said offender's crime is under RA
9165 but not any other law.
TOTALLY IN CONFLICT. Congress and SC
have different views.
NOTE: 1 March 2017: Sec. 25, a positive result for
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the use dangerous drugs is a qualifying AC. It
appears to be applicable to all crimes. But [see
2015 decision of SC,] Dela Cruz v. People.
Alternative Circumstances
Art. 15. Their concept. — Alternative
circumstances are 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. They are the relationship,
intoxication and the degree of instruction and
education of the offender.
The alternative circumstance of
relationship shall be taken into consideration
when the offended party in the spouse, ascendant,
descendant, legitimate, natural, or adopted
brother or sister, or relative by affinity in the
same degrees of the offender.
The intoxication of the offender shall be
taken into consideration as a mitigating
circumstances when the offender has committed a
felony in a state of intoxication, if the same is not
habitual or subsequent to the plan to commit said
felony but when the intoxication is habitual or
intentional, it shall be considered as an
aggravating circumstance.
Alternative circumstances are those
circumstances which can either be aggravating or
mitigating, depending on their effect in
commission of the crime.
Three Alternative Circumstances [RIDe]:
1. Relationship;
2. Intoxication;
3. Degree of Instruction or Education
 Relationship
Is considered as an alternative circumstance
when the offender is related to the offended party
as his spouse, ascendants, descendants,
legitimate, illegitimate, natural, adopted brothers,
sisters or relatives by affinity within the same
degree.
When is relationship considered as mitigating?
In crimes against property.
Ex.: Crime of Arson; Culpable Insolvency. It is
considered as a mitigating circumstance.
But in certain crimes against property such as
theft, estafa or swindling and malicious mischief,
relationship is exempting. Under article 332 if the
crime committed is theft, estafa or swindling, and
malicious mischief, relationship exempts the
offender from criminal liability. Therefore, if in
these three cases relationship is exempting, then
all other Crimes against property, relationship is
a mitigating circumstance.
In crimes against persons, relationship is
mitigating if the offender is of a higher degree
than that of the offended party, and the crime
committed is less physical injury, or slight
physical injury. If the crime committed is serious
physical injury, it's always an aggravating
circumstance.
Relationship is inherent in the crime of parricide.
 Intoxication
What is intoxication?
When the offender has taken such amount of
liquor of sufficient quantity as to affect his mental
capacity to determine the consequences of his act.
Under Article 15, intoxication is considered as a
mitigating circumstance if it is not habitual or
subsequent to the plan to commit the felony
On the other hand, intoxication is considered as
an aggravating circumstance if it is habitual or it
is done subsequent to the commission of a crime.
The offender deliberately takes liquor because he
used it as a stimulant for him to commit the crime.
He was so nervous he cannot commit the crime,
so he takes liquor form him to have the strength
to commit the crime.
X wanted to kill his enemy, and tried many times
but he cannot do it, he did not have the strength
to do so. So he got intoxicated, got his strength to
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kill his enemy. Intoxication is aggravating.
People v. Victoriano Dela Cruz, G.R. No. 187683,
11 February 2010
Facts: See Dela Cruz case, in Exempting
Circumstances-Accident [pg. 108]
Ruling: A person pleading intoxication to
mitigate penalty must present proof of having
taken a quantity of alcoholic beverage prior to
the commission of the crime, sufficient to
produce the effect of obfuscating reason. In
short, the defense must show that the
intoxication is not habitual, and not
subsequent to a plan to commit a felony,
and that the accused's drunkenness affected
his mental faculties. In this case, the absence
of any independent proof that his alcohol
intake affected his mental faculties militate
against Victoriano's claim that he was so
intoxicated at the time he committed the crime
to mitigate his liability [end].
 Degree of Instruction and Education
As a rule: a low degree of education or instruction
is considered as a mitigating circumstance.
Exception: if the crime committed is inherently
evil or wrong. Ex.: Killing a person, molesting a
woman, taking the personal property of another.
Such is as wrong as to a learned man as it is to an
ignorant man.
A high degree of education is considered as an
aggravating circumstance, if the offender makes
use of his high degree of education in facilitating
the commission of the crime.
Ex.: A lawyer committing estafa by falsifying a
deed of absolute sale. The lawyer makes use of his
high degree of education in order to commit the
crime.
However, in a case where a lawyer kills another
person in the course of an argument his high
degree of education has nothing to do with the
commission of the crime. Therefore in this case,
it cannot be considered as an aggravating
circumstance.
ABSOLUTORY CAUSES AND EXTENUATING
CIRCUMSTANCES
Absolutory Causes
Are those circumstances which have the effect of
exempting a person from criminal liability but not
from civil liability, but which are outside Article
12.
Ex.: Mistake of fact, Instigation, Accessories in
Light felonies.
Instigation as an absolutory cause.
In instigation, the mens rea/evil intent originated
from the mind of the public officer who only
lured the offender to commit the crime. On other
hand, entrapment is not an absolutory cause
because entrapment refers to ways and means
resorted to by the public officer in order to trap
and capture a criminal in flagrante delicto. Here,
the mens rea originated from the mind of the
offender.
People v. Nalega, G.R. No. 171018, 11 September
2009: distinction between instigation and
entrapment.
Instigation Entrapment
Mens rea originated Mens rea originated
from the mind of the from the mind of the
public officer offender. Officer
merely devised ways
and means to catch the
accused in flagrante
delicto.
An absolutory cause Not an absolutory
by reason of public cause.
policy.
The public officer is The public officer is
liable as a principal by not criminally liable.
inducement.
Facts: Law enforcers received information that
appellant Elly Naelga was peddling drugs in the
public market. They conducted a buy-bust
operation. The police officer, acting as a poseur-
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buyer, posed as a security guard who wanted to stay
awake at night. Naelga suggested shabu, and the
police handed him marked money. Naelga left and
the police planned his arrest. When Naelga
returned, the poseur-buyer gave him the balance of
the purchase price. Naelga took out a sachet of
shabu and handed it to the poseur-buyer. He was
arrested shortly afterward.
Nalega was charged in the RTC of Rosales,
Pangasinan of violation of Secs. 5 & 11 (3) of RA
9165, and the RTC found him guilty as charged.
The CA affirmed the RTC.
Issue: Whether the police, as the poseur-buyer,
instigated him to sell shabu.
Ruling:
We find no instigation in this case. The general rule
is that it is no defense to the perpetrator of a crime
that facilities for its commission were purposely
placed in his way, or that the criminal act was done
upon the "decoy solicitation" of persons seeking to
expose the criminal, or that detectives feigning
complicity in the act were present and apparently
assisting in its commission. This is particularly true
in that class of cases where the offense is of a kind
habitually committed, and the solicitation merely
furnishes evidence of a course of conduct. Mere
deception by the detective will not shield
defendant, if the offense was committed by him
free from the influence or the instigation of the
detective.
Here, the law enforcers received a report from
their confidential informant that Naelga was
engaged in illegal drug trade in the public market
of Rosales. Poseur-buyer PO2 Sembran then
pretended to be engaged in the drug trade himself
and, with the help of his fellow buy-bust
operatives, arrested Naelga in the act of delivering
the shabu to him. In an entrapment, ways and
means are resorted to for the purpose of
trapping and capturing the lawbreakers in the
execution of their criminal plan. In instigation,
the instigator practically induces the would-be
defendant into the commission of the offense,
and himself becomes a co-principal.
Entrapment is no bar to prosecution and
conviction; in instigation, the defendant would
have to be acquitted.
A buy-bust operation is a form of entrapment,
which in recent years has been accepted as a
valid and effective mode of arresting violators
of the Dangerous Drugs Law. In a buy-bust
operation, the idea of committing a crime
originates from the offender, without
anybody inducing or prodding him to
commit the offense. In the case at bar, the
buy-bust operation was formed by the police
officers precisely to test the veracity of the tip
and in order to apprehend the perpetrator.
While Naelga claims that it was PO2 Sembran who
approached and asked him to buy shabu for him,
the same cannot be considered as an act of
instigation, but an act of "feigned solicitation."
Instigation is resorted to for purposes of
entrapment, based on the tip received from the
police informant that Naelga was peddling illegal
drugs in the public market of Rosales. In fact, it
was Naelga who suggested to PO2 Sembran to
use shabu; and, despite Naelga’s statement that he
did not know anybody selling shabu, he still took
the money from PO2 Sembran and directly went
to Urdaneta, where he claimed to have bought the
illegal drug. Then he returned to the Rosales public
market and gave the drug to PO2 Sembran [end].
Extenuating Circumstances
Same effect as mitigating circumstance but not
included in Article 13, to lower the imposable
penalty.
Ex.: Infanticide
A mother killed her own child less than 3 days
old in order to conceal her dishonor. The penalty
here will be lowered by 2 degrees, from reclusion
perpetua to death, the penalty will be prision
mayor [Art. 255, 2nd par.]
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PERSONS CRIMINALLY LIABLE
Art. 16. Who are criminally liable. — The
following are criminally liable for grave and less
grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light
felonies:
1. Principals
2. Accomplices
Art. 17. Principals. — The following are
considered principals:
1. Those who take a direct part in the execution
of the act;
2. Those who directly force or induce others to
commit it;
3. Those who cooperate in the commission of the
offense by another act without which it would
not have been accomplished.
The principal knows the criminal design because
he is the author of the crime.
Kinds of principals:
1. Principal by direct participation
Must necessarily be present in the scene of the
crime because he is the one who actually executed
the crime. Without him, the crime will not be
committed.
2. Principal by induction or inducement
Requisites of a principal by inducement:
1. The inducement is made directly to procure
the commission of the crime; and
2. The inducement is the primary
reason[/determining cause] of the
commission of the crime by the principal by
direct participation.
[Principals by inducement directly force or induce
another to commit a crime, GN 2016]. They may
or may be present in the scene of the crime, and
they may or may not actually take part in the
commission of the same. If there is evidence to
prove that without his inducement, the crime
would not have been committed, still he can be
criminally liable.
The inducement must be the primary reason why
the crime was committed.
Inducement may come in different forms:
a. Giving of price, reward or promise;
b. By employing force, command or
ascendancy which is being followed by the
principal by direct participation.
3. Principal by indispensable cooperation
He must be at the scene of the crime because he
must perform another act without which the
crime would not have been accomplished.
If with or without his act the crime will be
accomplished, the offender is an accomplice.
People v. Dulay, G.R. No. 193854, 24
September 2012
Facts: Dina Dulay was introduced to AAA, a 12-
year old girl, by the latter’s sister. Dulay convinced
AAA to accompany her to a wake, but before that
they looked for Dulay’s boyfriend. They found
him at a fish port. Afterwards, Dulay, her
boyfriend and AAA went to the kubuhan at the
back of the fish port.
When they reached the Kubuhan, Dulay suddenly
pulled AAA inside a room where a man known by
the name “Speed” was waiting. AAA saw “Speed”
give money to Dulay and heard “Speed” tell Dulay
to look for a younger girl. Thereafter, “Speed”
wielded a knife and tied AAA's hands to the papag
and raped her. AAA asked for Dulay’s help when
she saw the latter peeping into the room while she
was being raped, but Dulay did not do so. After the
rape, “Speed” and Dulay told AAA not to tell
anyone what had happened or else they would get
back at her.
Dulay was charged conspiring with Speed in raping
AAA in the RTC of Paranaque. The RTC
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convicted her as a co-principal by indispensable
cooperation in the crime of rape. The CA affirmed
the conviction.
Issue: Whether Dulay is not guilty of rape as co-
principal by indispensable cooperation.
Ruling: Appeal DISMISSED. Dulay is guilty of
violation of Sec. 5(a), Art. III, RA 7610.
Under the Revised Penal Code, an accused may be
considered a principal by direct participation, by
inducement, or by indispensable cooperation. To
be a principal by indispensable cooperation,
one must participate in the criminal
resolution, a conspiracy or unity in criminal
purpose and cooperation in the commission of
the offense by performing another act without
which it would not have been accomplished.
Nothing in the evidence presented by the
prosecution does it show that the acts
committed by appellant are indispensable in
the commission of the crime of rape. The events
narrated by the CA, from the time Dulay
convinced AAA to go with her until Dulay
received money from the man who allegedly raped
AAA, are not indispensable in the crime of rape.
Anyone could have accompanied AAA and offered
the latter's services in exchange for money and
AAA could still have been raped. Even AAA could
have offered her own services in exchange for
monetary consideration and still end up being
raped. Thus, this disproves the indispensable
aspect of the appellant in the crime of rape. It must
be remembered that in the Information, as well as
in the testimony of AAA, she was delivered and
offered for a fee by Dulay, thereafter, she was
raped by "Speed.”
In this light, while this Court does not find Dulay
to have committed the crime of rape as a principal
by indispensable cooperation, she is still guilty of
violation of Section 5 (a) of R.A. 7610. Paragraph
(a) essentially punishes acts pertaining to or
connected with child prostitution. It contemplates
sexual abuse of a child exploited in prostitution. In
other words, under paragraph (a), the child is
abused primarily for profit.
As alleged in the Information and proven through
the testimony of AAA, Dulin facilitated or induced
child prostitution. Thus, the act of Dulin in
convincing AAA, who was 12 years old at that
time, to go with her and thereafter, offer her for
sex to a man in exchange for money makes her
liable under the above-mentioned law [end].
Art. 18. Accomplices. — Accomplices are those
persons who, not being included in Art. 17,
cooperate in the execution of the offense by
previous or simultaneous acts.
Requisites to be an accomplice:
1. There must be community of design;
After the principals have [formed] the
criminal design, the accomplice had been
informed of the criminal design of the
offender and having been informed, he
concurs with the said criminal design. He
is not part of the conspiracy but he knows
and concurs with the design because he
was informed of the same only after the
principal had come up with agreement.
2. That he performs the acts previous or
simultaneous to the commission of the
crime; and
3. That the acts performed by the principal is
related to the acts performed by the
accomplice.
Accomplices cooperate in the commission of the
crime by previous of simultaneous acts.
The participation is only minor in character. It
only provides material and moral aide in an
efficacious manner but not in an indispensable
manner.
If the act performed by the offender facilitated
the commission of the crime, but it is not
indispensable in the commission of the crime,
with or without said act nevertheless, the crime
had been committed, the offender is merely an
accomplice.
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The accomplice knows the criminal design because
he concurs with it.
Ex.: A, B, C, D, and E decided to rob a bank. Based
on their agreement, A.B, and C will be the ones to
enter the bank. D will serve as lookout. E will
serve as the driver of the vehicle. They committed
the crime on the date agreed upon. What are the
liabilities of A, B, C, D, and E?
A: All of them are liable as principals by direct
participation, because all of them are authors of
the criminal design.
Ex2: What if, A, B and C decided to rob the bank.
On the agreed time and place, they were already
about to go to the bank, but suddenly they
realized they have no vehicle. So the flagged down
a taxi. They informed the taxi driver of their
criminal design, to which the taxi driver agreed
for his car to be used as a getaway vehicle. While
on their way to the bank, they realized that they
needed a lookout. They saw a balut vendor and
asked him, "Can you be our lookout? The moment
you see a police coming, shout baluuuuut!" The
said vendor agreed to the said criminal design.
After robbing the bank, A B C and the balut vendor
boarded the taxi. Criminal liability of each?
A: A B and C are liable as principal by direct
participation, while the taxi driver and the balut
vendor are liable as accomplices. They are
accomplices since A B C already agreed on the
criminal design before they informed the two of
the same and the latter concurred by performing
simultaneous acts or subsequent to the
commission of the crime.
NOTE: So no matter how minor the participation
is of an offender, if he is an author of the criminal
design, even if he only acted as a lookout, still he
is liable as a principal by direct participation.
People v. Gambao, et al., G.R. No. 172707, 1
October 2013
Facts: One evening, Lucia Chen was kidnapped
by appellant Dilangalen and an unidentified
person. She was eventually brought to a house
where she was guarded by appellants Dukilman,
Ronas, Evad and Macalinbol, and was threatened
to be killed unless she paid P20 million.
She was then transferred to another house, and
inside a room on the 2nd floor she found
Macalinbol, and appellants Udal and Gambao.
Later, a 17-year old female, appellant Perpenian
arrived. In the evening, Mandao and appellant
Karim arrived as well. Chan was instructed to talk
to her son Levy and negotiated the ransom
amount in exchange for Chan’s release. It was
agreed that Levy was to deliver P400,000 at
Chowking Buendia.
The next day, the police obtained information
about the delivery of the ransom money. They
chased a Tamaraw FX whose occupants took the
ransom. The police intercepted the van and
arrested Karim, Abao, Gambao & Dukilman. On
the same day, the police successfully rescued Chan
and apprehended Dilangalen, Udal, Macalinbol,
Mandao, Perpenian, Evad & Ronas.
Gambao, et al. were charged with kidnapping for
ransom in the RTC of Pasay City. All [except
Karim and Perpenian] plead guilty. The RTC
convicted Gambao, et al. (including Perpenian)
guilty as charged. The CA affirmed with
modification the RTC decision.
Issue: Whether Perpenian is guilty of kidnapping.
Ruling: CA decision AFFIRMED with
MODIFICATION: Perpenian is guilty as an
accomplice.
The trial court took note of the fact that
Perpenian gave inconsistent answers and lied
several times under oath during the trial.
Perpenian lied about substantial details such as
her real name, age, address and the fact that
she saw Chan at the Elizabeth Resort. When
asked why she lied several times, Perpenian
claimed she was scared to be included or
identified with the other accused-appellants. The
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lying and the fear of being identified with
people whom she knew had done wrong are
indicative of discernment. She knew, therefore,
that there was an ongoing crime being
committed at the resort while she was there.
It is apparent that she was fully aware of the
consequences of the unlawful act.
As reflected in the records, the prosecution was
not able to proffer sufficient evidence to hold
Perpenian responsible as a principal. Seeing that
the only evidence the prosecution had was the
testimony of Chan to the effect that xxx Perpenian
entered the room where the victim was detained
and conversed with Evad and Ronas regarding
stories unrelated to the kidnapping, this Court
opines that Perpenian should not be held liable as
a co-principal, but rather only as an accomplice to
the crime.
Jurisprudence is instructive of the elements
required, in accordance with Article 18 of the
Revised Penal Code, in order that a person may be
considered an accomplice, namely,
(1) that there be community of design; that is
knowing the criminal design of the principal by
direct participation, he concurs with the latter
in his purpose;
(2) that he cooperates in the execution by previous
or simultaneous act, with the intention of
supplying material or moral aid in the
execution of the crime in an efficacious
way; and
(3) that there be a relation between the acts done
by the principal and those attributed to the
person charged as accomplice.
The defenses raised by Perpenian are not sufficient
to exonerate her criminal liability. Assuming
arguendo that she just came to the resort thinking it
was a swimming party, it was inevitable that she
acquired knowledge of the criminal design of the
principals when she saw Chan being guarded in the
room. A rational person would have suspected
something was wrong and would have reported
such incident to the police. Perpenian, however,
chose to keep quiet; and to add to that, she even
spent the night at the cottage. It has been held
before that being present and giving moral support
when a crime is being committed will make a
person responsible as an accomplice in the crime
committed. It should be noted that Perpenian’s
presence and company were not indispensable and
essential to the perpetration of the kidnapping for
ransom; hence, she is only liable as an accomplice.
Moreover, this Court is guided by the ruling in
People v. Clemente, et al., where it was stressed that in
case of doubt, the participation of the offender will
be considered as that of an accomplice rather than
that of a principal [end].
NOTE: Perpenian was 31 years old at the time of
the SC judgment, so according to Art. 40 of RA
9344, the suspension of sentence under Art. 30 will
not apply. She was also not ordered to be confined
in an agricultural camp because her actual served
term had already exceeded the imposable penalty
for her offense. The SC ordered her immediate
release. [Prosec G.: We will take this up in
preventive imprisonment].
Art. 19. Accessories. — Accessories are those who,
having knowledge of the commission of the crime,
and without having participated therein, either as
principals or accomplices, take part subsequent to
its commission in any of the following manners:
1. By profiting themselves or assisting the
offender to profit by the effects of the crime;
2. By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
3. By harboring, concealing, or assisting in the
escape of the principals 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.
Does the accessory know the criminal design?
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No. What he knows is the commission of the
crime. Despite knowledge that the crime has
been committed, he take part subsequent to its
commission.
1st: By profiting themselves or assisting the
offender to profit by the effects of the crime;
Ex.: A, by means of deceit, was able to take the
diamond ring of his friend. So A swindled his
friend by means of deceit. After taking the ring,
she went to B. A told B "B, I have here a diamond
ring, I swindled it from my friend and I'm selling
it to you for only 10k. B bought the said ring and
displayed it to his shop to have it sold. Later B was
found in possession of the said ring. Is be liable as
an accessory? A: YES.
Ex.2: What if A, went to a pawnshop, broke in,
took all the jewelries. A told B "I am selling this to
you for only 20k." B bought the same. He told A
"This are the jewelries from my friend's
pawnshop right?" A said, yes. IS B an accessory
and a fence? A: YES
ANTI-FENCING LAW, PD 1612
Elements of fencing:
1. That the crime of robbery or theft has been
committed;
2. That the said person was found in
possession of the said article or items
which are the proceeds of the crime;
3. That there was on the part of such person,
the intent to gain either for himself or for
another;
4. That the said person knows or should have
known that the article is the product of
robbery or theft.
Who is a fence?
A: A fence includes any person, firm, association,
corporation or partnership or other organization
who/which commits the act of fencing.
"Fencing" is the act of any person who, with intent
to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or
anything of value which he knows, or should be
known to him, to have been derived from the
proceeds of the crime of robbery or theft.
Fencing is not a continuing crime. It is not a
transitory offense. Thus, prosecute the accused
in the place where he is arrested in possession
of the stolen goods.
The robbery took place in Manila. The house
helper went inside the master bedroom. Broke the
vault and got the cash and jewelries therein.
Thereafter, she went to QC and sold the jewelries
to a store for 50K. Upon examination of the
jewelries, the store owner knew it was worth
millions of Pesos thus the store owner immediately
gave the 50K. The police officer went to the said
store and there indeed the police together with the
real owner were able to identify the jewelries. What
are their criminal liabilities of the helper and the
store-owner?
ANS: The helper is a principal by direct
participation of robbery.
The store-owner is not liable as an accessory. The
first element is not present. The store owner has
no knowledge of the commission of the crime.
Such knowledge cannot be presumed and must be
proven.
But may be liable under PD 1612 as a Fence. All
elements of Fencing are present. There is a
presumption under PD 1612, SEC. 5. Note that
the information for fencing must be filed in QC.
He should have known that the jewelry were the
proceeds of robbery. The discrepancy between
their value and the helper’s selling price should
have alerted him [to this fact].
Q: What if the store owner knew of the robbery,
can he be charged for both as an accessory of
robbery and fencing?
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A: Yes.
But do not do that. It is better to file fencing.
Because it is easier to prove. While in accessory,
he must first know that the crime has been
committed. In fencing, it is not necessary that he
knows.
Section 5 of PD 1612 provided a prima facie
presumption of fencing if a person is in
possession of a stolen article. The burden of
evidence is shifted on the accused.
Ong v. People, G.R. No. 190475, 10 April 2013
Facts: Jaime Ong was charged with the violation
of the Anti-Fencing Law in the RTC of Manila.
Private complainant Azajar reported to the police
that his 44 Firestone truck tires were stolen from his
warehouse. Pending the police investigation,
Azajar canvassed numerous business
establishments in an attempt to locate the stolen
tires. He discovered that Jong Marketing, which
was owned and operated by Ong was selling
Azajar’s tires, based on their chalk markings and
serial numbers. The buy-bust operation, wherein
one tire was sold for P5,000, eventually yielded 12
more of Azajar’s stolen tires (a total of 13), and the
arrest of Ong.
Ong denied that he had knowledge that he was
selling stolen tires, and that a certain Ramon Go
offered to sell 13 Firestone truck tires for P3,500
each. Ong bought all tires for P45,000.
The RTC found that all 13 tires found in Ong’s
possession constituted prima facie evidence of
fencing. Ong failed to overcome the presumption
and was found guilty. The CA affirmed the RTC.
Issue: Whether Ong is not guilty of fencing.
Ruling: Petition DENIED.
The essential elements of the crime of fencing are
as follows:
(1) a crime of robbery or theft has been
committed;
(2) the accused, who is not a principal or on
accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses,
keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any
article, item, object or anything of value,
which has been derived from the proceeds of
the crime of robbery or theft;
(3) the accused knew or should have known that
the said article, item, object or anything of
value has been derived from the proceeds of
the crime of robbery or theft; and
(4) there is, on the part of one accused, intent to
gain for oneself or for another.
We agree with the RTC and the CA that the
prosecution has met the requisite quantum of
evidence in proving that all the elements of fencing
are present in this case.
First, the owner of the tires, private complainant
Azajar, whose testimony was corroborated by Jose
Cabal - the caretaker of the warehouse where the
thirty-eight (38) tires were stolen – testified that the
crime of robbery had been committed. Azajar was
able to prove ownership of the tires through Sales
Invoice No. 4565 and an Inventory List.
Witnesses for the prosecution likewise testified
that robbery was reported as evidenced by their
Sinumpaang Salaysay. The report led to the conduct
of a buy-bust operation at Jong Markerting, Paco,
Manila.
Second, although there was no evidence to link Ong
as the perpetrator of the robbery, he never denied
the fact that thirteen (13) tires of Azajar were
caught in his possession. The facts do not establish
that Ong was neither a principal nor an accomplice
in the crime of robbery, but thirteen (13) out of
thirty-eight (38) missing tires were found in his
possession. This Court finds that the serial
numbers of stolen tires corresponds to those
found in Ong’s possession. Ong likewise admitted
that he bought the said tires from Go of Gold Link
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in the total amount of P45, 500 where he was
issued Sales Invoice No. 980.
Third, the accused knew or should have known that
the said article, item, object or anything of value
has been derived from the proceeds of the crime
of robbery or theft. The words “should know”
denote the fact that a person of reasonable
prudence and intelligence would ascertain the
fact in performance of his duty to another or
would govern his conduct upon assumption
that such fact exists. Ong, who was in the
business of buy and sell of tires for the past twenty-
four (24) years, ought to have known the ordinary
course of business in purchasing from an unknown
seller. Admittedly, Go approached Ong and
offered to sell the thirteen (13) tires and he did not
even ask for proof of ownership of the tires. The
entire transaction, from the proposal to buy until
the delivery of tires happened in just one day. His
experience from the business should have given
him doubt as to the legitimate ownership of the
tires considering that it was his first time to transact
with Go and the manner it was sold is as if Go was
just peddling the thirteen (13) tires in the streets.
In Dela Torre v. COMELEC, this Court had
enunciated that circumstances normally exist to
forewarn, for instance, a reasonably vigilant buyer
that the object of the sale may have been derived
from the proceeds of robbery or theft. Such
circumstances include the time and place of the
sale, both of which may not be in accord with the
usual practices of commerce. The nature and
condition of the goods sold, and the fact that the
seller is not regularly engaged in the business of
selling goods may likewise suggest the illegality of
their source, and therefore should caution the
buyer. This justifies the presumption found in
Section 5 of P.D. No. 1612 that “mere possession of
any goods, . . ., object or anything of value which has been
the subject of robbery or thievery shall be prima facie evidence
of fencing” — a presumption that is, according to the Court,
“reasonable for no other natural or logical inference can arise
from the established fact of . . . possession of the proceeds of
the crime of robbery or theft.”
Moreover, Ong knew the requirement of the law
in selling second hand tires. Section 6 of P.D. 1612
requires stores, establishments or entities dealing in
the buying and selling of any good, article, item,
object or anything else of value obtained from an
unlicensed dealer or supplier thereof to secure the
necessary clearance or permit from the station
commander of the Integrated National Police in
the town or city where that store, establishment or
entity is located before offering the item for sale to
the public. In fact, Ong has practiced the
procedure of obtaining clearances from the police
station for some used tires he wanted to resell but,
in this particular transaction, he was remiss in his
duty as a diligent businessman who should have
exercised prudence.
In his defense, Ong argued that he relied on the
receipt issued to him by Go. Logically, and for all
practical purposes, the issuance of a sales invoice
or receipt is proof of a legitimate transaction and
may be raised as a defense in the charge of fencing;
however, that defense is disputable. In this case,
the validity of the issuance of the receipt was
disputed, and the prosecution was able to prove
that Gold Link and its address were fictitious. Ong
failed to overcome the evidence presented by the
prosecution and to prove the legitimacy of the
transaction. Thus, he was unable to rebut the prima
facie presumption under Section 5 of P.D. 1612.
Finally, there was evident intent to gain for himself,
considering that during the buy-bust operation,
Ong was actually caught selling the stolen tires in
his store, Jong Marketing [end].
People v. Dimat, G.R. No. 181184, 25 January
2012
Facts: Petitioner Mel Dimat was charged with
violation of the Anti-Fencing Law before the RTC
of Manila.
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Sonia Delgado bought from Dimat a 1997 Nissan
Safari. It was spotted and stopped by the police.
Upon inspection, they discovered that the Nissan
was actually stolen from its owner Mantequilla.
Dimat claimed that he did not know Mantequilla,
and that he bought the Safari in good faith and for
value from a certain Manuel Tolentino, and then
sold the same to Sonia Delgado.
The RTC convicted Dimat as charged, and the CA
affirmed the conviction.
Issue: Whether Dimat knowingly sold to Delgado
the Nissan Safari that was earlier carnapped from
Mantequilla.
Ruling:
The elements of "fencing" are
1) a robbery or theft has been committed;
2) the accused, who took no part in the
robbery or theft, "buys, receives, possesses,
keeps, acquires, conceals, sells or disposes,
or buys and sells, or in any manner deals in
any article or object taken" during that
robbery or theft;
3) the accused knows or should have known
that the thing derived from that crime; and
4) he intends by the deal he makes to gain for
himself or for another.
Here, someone carnapped Mantequilla's
Nissan Safari on May 25, 1998. Two years later
in December 2000, Dimat sold it to Delgado
for P850,000.00. Dimat's defense is that the
Nissan Safari he bought from Tolentino and
later sold to Delgado had engine number
TD42-126134 and chassis number CRGY60-
YO3553 as evidenced by the deeds of sale
covering those transactions. The Nissan Safari
stolen from Mantequilla, on the other hand,
had engine number TD42-119136 and chassis
number CRGY60-YO3111.
But Dimat's defense is flawed. First, the Nissan
Safari Delgado bought from him, when
stopped on the road and inspected by the
police, turned out to have the engine and
chassis numbers of the Nissan Safari stolen
from Mantequilla. This means that the deeds of
sale did not reflect the correct numbers of the
vehicle's engine and chassis.
Second. Dimat claims lack of criminal intent
as his main defense. But Presidential Decree
1612 is a special law and, therefore, its violation
is regarded as malum prohibitum, requiring no
proof of criminal intent. Of course, the
prosecution must still prove that Dimat knew
or should have known that the Nissan Safari he
acquired and later sold to Delgado was derived
from theft or robbery and that he intended to
obtain some gain out of his acts.
Dimat testified that he met Tolentino at the
Holiday Inn Casino where the latter gave the
Nissan Safari to him as collateral for a loan.
Tolentino supposedly showed him the old
certificate of registration and official receipt of
the vehicle and even promised to give him a
new certificate of registration and official
receipt already in his name. But Tolentino
reneged on this promise. Dimat insists that
Tolentino's failure to deliver the documents
should not prejudice him in any way. Delgado
himself could not produce any certificate of
registration or official receipt.
Based on the above, evidently, Dimat knew
that the Nissan Safari he bought was not
properly documented. He said that Tolentino
showed him its old certificate of registration
and official receipt. But this certainly could not
be true because, the vehicle having been
carnapped, Tolentino had no documents to
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show. That Tolentino was unable to make good
on his promise to produce new documents
undoubtedly confirmed to Dimat that the
Nissan Safari came from an illicit source. Still,
Dimat sold the same to Sonia Delgado who
apparently made no effort to check the papers
covering her purchase. That she might herself
be liable for fencing is of no moment since she
did not stand accused in the case [end].
nd
2 : By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
Q: what do we mean by body of the crime?
A: Substance of the crime. It refers to the fact that
a crime has been committed by someone. [ Do not
answer corpus delicti!]
Elements corpus delicti:
1. Proof of occurrence of a certain event;
2. Proof of a person’s criminal liability.
NOTE: For as long as there are witnesses, the
body of the crime still exists.
Ex: A stabbed B. thereafter, he buried the
deceased body of B. X witnessed A’s act of killing
the moment A buried the body of B under the
ground, is the body of the crime gone?
A: NO. The body of the crime does not refer to the
physical body of the victim. [Nor does it refer to
the stolen goods in the crime of theft/robbery].
3rd act: By harboring, concealing, or assisting in
the escape of the principals 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.
NOTE: If the accessory who harbored and
concealed or assisted in the escape of the of the
principal is a private individual, the law
specifies the crime committed, which is PD 1829,
otherwise known as Obstruction of Justice.
Ex.: The principal committed swindling or estafa.
X harbored the principal despite knowing the
latter committed estafa. X cannot be considered
as an accessory because estafa or swindling is not
among the crimes mentioned in the second part
of the 3rd act. So what is the criminal liability of
the friend?
A: HE is liable under PD 1829. Obstruction of
Justice is committed by any person who willfully
and lawfully obstructs, impedes, frustrates or
delays the apprehension of suspects and the
investigation and prosecution of criminal cases.
Ex.: What if A and B sisters. They had a
housemaid, X. A and B were cruel to X, for a minor
mistake they would slap, boxed or injure her. One
time, A went to work. When she arrived home,
she saw the deceased body of X. A and B placed
the deceased body in a sack and placed it on the
trunk of their car. However, someone witnessed
their act who immediately called the police,
reporting that he saw 2 women putting a sack in
the truck wherein 2 feet were protruding from
the said sack. A and B were prosecuted and both
convicted for murder. The Supreme Court
however said that only B is liable, not for murder
but only for homicide. When A arrived, the
housemaid was already dead.
But how about A's act of trying to place the
deceased body inside the trunk of the car in order
to prevent the discovery of the crime?
A: Her act constitutes that of an accessory. But she
falls under Article 20 since she is related to the
offender.
A,B,C,D are happily walking. Suddenly they
chanced upon X. A and B stab X. C just stood
there just watching. D served as lookout. A told C
to dispose the body of X and so C threw it in a
deep well. The autopsy report shows that X died
not because of the stab wounds but because of
drowning. A,B,C,D are all charged as principals in
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the crime of Murder. Are they all liable as
principals? What are their criminal liabilities?
C claims that he is not liable as principal but only
as an accessory because he participated after the
act of stabbing. He did not know X was still alive
when he disposed the body.
D also claims that he is not liable as he only served
as a look out, as mere accomplice.
ANS: A and B are liable as PRINCIPAL BY
DIRECT PARTICIPATION. They are the
persons who actually stabbed the victim.
C is also liable as PRINCIPAL BY
INDISPENSABLE COOPERATION because X
was still alive when he threw the body in the well.
The act of throwing in the well was the cause of
death. It consummated the crime of murder.
Indispensable because without throwing the body,
W would not have died. His defense that he has no
knowledge that X was still alive is untenable
because by disposing the body he was already
committing a felonious act thus must be liable for
its consequences (liable for a felony although
different from that which he intended).
D liable as an accomplice. He concurs with the
criminal design. All elements present.
 LOOK OUT as a PRINCIPAL- When he is
part of the criminal design. He is among the
authors of the criminal design (e.g. when the
crime was planned).
 LOOK OUT as a MERE ACCOMPLICE-
when he is not part of the criminal design.
[1 March 2017] X wanted to kill Y, who lives in a
boarding house. X told W, the caretaker of the
boarding house, that he wanted to kill Y, so he
asked W to open the gate one night. W did so, and
killed Y. What are their criminal liabilities?
X: Principal by direct participation as he was the
one who killed Y.
W: Accomplice. He [was informed of the criminal
design of X, and concurred with the same]. He
performed previous acts: opening the door, and
his opening of the gate was related to the killing by
X. W’s acts were not indispensable to the killing of
Y as X could kill Y whether or not the gate was
open.
X & Y were boxing, Y was defeated and was sent
sprawling to the ground. X tuned his back from Y.
W gave X a gun and told him to kill Y. He stared
at the gun for some seconds, then went to Y and
shot him to death. X told his father that he killed
Y with a gun. The father took the gun and hid it.
The father sold it the next day and kept the
proceeds for himself.
W: P. By indispensable cooperation. Without
giving of the gun, X would not have killed Y. X
already turned his back away from Y; he did not
intend to kill Y, until W showed along with the
gun.
The father is liable as an accessory under Art. 19(1)
in relation to Art. 20. When the father tried to hide
the gun, [he was covered by Art. 20]. But when he
sold the gun for profit, he became an accessory
under Art. 19(1).
The father is also liable for obstruction of justice.
Art. 20. Accessories who are exempt from criminal
liability. — The penalties prescribed for
accessories shall not be imposed upon those who
are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted
brothers and sisters, or relatives by affinity within
the same degrees, with the single exception of
accessories falling within the provisions of
paragraph 1 of the next preceding article.
When is an accessory exempted from criminal
liability?
1. When the crime committed is a light felony;
2. When the said accessory is the spouses,
ascendants, descendants, legitimate, natural,
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and adopted brothers and sisters, or relatives
by affinity within the same degrees.
NOTE: If the relatives [enumerated in Art. 20]
commit the acts in Art. 19 (1), they are liable as
accessories.
PENALTIES
Refers to punishment imposed by lawful
authority upon a person who has committed an
intentional felony or a culpable felony. These are
prescribed by law, enacted by Congress.
Art. 21. Penalties that may be imposed. — No
felony shall be punishable by any penalty not
prescribed by law prior to its commission.
This is in consonance on the provision of the
Constitution on [the prohibition of] ex post facto
laws.
TWO KINDS OF PENALTIES:
1. Principal; and
2. Accessory
Principal penalties are penalties prescribed by
law or prescribed by the court.
Accessory penalties are those which are
necessarily included in the imposition of
principal penalties.
Under Art 73, accessory penalties follow the
principal penalties as a matter of law. Hence, they
need not be stated in the decision:
Art. 73. Presumption in regard to the imposition of
accessory penalties. — Whenever the courts shall
impose a penalty which, by provision of law,
carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43 and 44 of this
Code, it must be understood that the accessory
penalties are also imposed upon the convict.
Ex.: X was convicted of murder. Finding the
accused guilty beyond reasonable doubt.
Sentenced to suffer the penalty of reclusion perpetua,
also made to suffer perpetual absolute
disqualification and civil interdiction. They need
not be stated in the judgment of the court because
these two necessarily follow the principal penalty
of reclusion perpetua.
Villareal v. People, G.R. Nos. 154954, 155101,
178057 & 178080, 1 December 2014 [Motion for
Reconsideration of Villareal, 2012, pg. 18]
In this instance, we further find it important to
clarify the accessory penalties inherent to the
principal penalty imposed on Dizon and Tecson et
al.
By operation of Articles 40 to 45 and 73 of the
Revised Penal Code, a corresponding accessory
penalty automatically attaches every time a court
lays down a principal penalty outlined in Articles
25 and 27 thereof. The applicable accessory
penalty is determined by using as reference the
principal penalty imposed by the court before
the prison sentence is computed in
accordance with the ISL. This determination is
made in spite of the two classes of penalties
mentioned in an indeterminate sentence. It must
be emphasized that the provisions on the inclusion
of accessory penalties specifically allude to the
actual “penalty” imposed, not to the “prison
sentence” set by a court. We believe that the ISL
did not intend to have the effect of imposing on
the convict two distinct sets of accessory penalties
for the same offense. The two penalties are only
relevant insofar as setting the minimum
imprisonment period is concerned, after which the
convict may apply for parole and eventually seek
the shortening of the prison term.
Under Article 365 of the Revised Penal Code, the
prescribed penalty for the crime of reckless
imprudence resulting in homicide is arresto mayor
in its maximum period to prisión correccional in its
medium period. As this provision grants courts the
discretion to lay down a penalty without regard to
the presence of mitigating and aggravating
circumstances, the imposable penalty must also
be within the aforementioned range. Hence,
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before applying the ISL, we ultimately imposed on
Dizon and Tecson et al. the actual (straight) Art. 25. Penalties which may be imposed. — The
penalty of four years and two months of prisión penalties which may be imposed according to this
correccional. Pursuant to Article 43 of the Revised Code, and their different classes, are those
Penal Code, the penalty of prisión correccional included in the following:
automatically carries with it the following
accessory penalties: SCALE
PRINCIPAL PENALTIES
 Suspension:
Capital punishment:
o From public office, Death
o From the right to follow a profession
or calling, Afflictive penalties:
 Perpetual special disqualification from the Reclusion perpetua,
right of suffrage, if the duration of said Reclusion temporal,
imprisonment shall exceed eighteen months. Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
The duration of their suspension shall be the same Prision mayor
as that of their principal penalty sans the ISL; that
is, for four years and two months or until they Correctional penalties:
have served their sentence in accordance with law. Prision correccional,
Their suspension takes effect immediately, once Arresto mayor,
the judgment of conviction becomes final. Suspension,
Destierro
We further point out that if the length of their Light penalties:
imprisonment exceeds 18 months, they shall Arresto menor,
furthermore suffer a perpetual special Public censure
disqualification from the right of suffrage. Under
Article 32 of the Revised Penal Code, if this Penalties common to the three preceding classes:
accessory penalty attaches, it shall forever deprive Fine, and
them of the exercise of their right: Bond to keep the peace.
a) to vote in any popular election for any public
office; ACCESSORY PENALTIES
b) to be elected to that office; and Perpetual or temporary absolute
disqualification,
c) to hold any public office. Any public office
Perpetual or temporary special disqualification,
that they may be holding becomes vacant upon Suspension from public office, the right to vote
finality of the judgment. and be voted for, the profession or calling,
Civil interdiction,
The aforementioned accessory penalties can only Indemnification,
be wiped out if expressly remitted in a pardon. Forfeiture or confiscation of instruments and
Of course, the aforementioned accessory penalties proceeds of the offense,
are without prejudice to a grant of probation, Payment of costs.
should the trial court find them eligible therefor.
As we explained in Baclayon, the grant of probation
suspends the execution of the principal penalty of DEATH
imprisonment, as well as that of the accessory Under RA 9346, death penalty cannot be imposed,
but it remains to be the penalty for heinous crimes.
penalties [end].
Heinous crimes remain to be heinous crimes and

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the penalty remains to be death.
Sections 2 & 3, RA 9346:
Sec. 2. In lieu of death penalty, the following
shall be imposed:
a) The penalty of reclusion perpetua, when
the law violated makes use of the
nomenclature of penalties of the RPC; or
b) The penalty of life imprisonment, when the
law violated does not make use of the
nomenclature of the penalties of the RPC.
Sec. 3. 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.
People vs. Alonso: what is prohibited is the
imposition of death penalty.
Ex. Murder with aggravating circumstance.
Penalty is death. However, death cannot be
imposed because of RA 9346. If in violation of the
RPC, commuted to RP. If in violation of special
law, commuted to LI.
Under sec 3, when the penalty is RP or commuted
to RP, he cannot be given the benefit of parole
under the ISLAW.
People v. Quiachon, G.R. No. 170236, 31
August 2006
Facts: Quiachon was charged with qualified rape,
with the prosecution alleging that he raped
Rowena, his 8-year old, deaf-mute daughter. The
RTC convicted him as charged and imposed the
death penalty. The CA affirmed the RTC.
Ruling:
After a careful review of the records of the case,
the Court affirms the conviction of Quiachon.
However, in view of the enactment of Republic
Act (R.A.) No. 9346 on June 24, 2006
prohibiting the imposition of the death penalty,
the penalty to be meted on appellant is reclusion
perpetua in accordance with Section 2 thereof.
However, Quiachon is not eligible for parole
because Section 3 of R.A. No. 9346 provides
that "persons convicted of offenses punished
with reclusion perpetua, or whose sentences will
be reduced to reclusion perpetua by reason of the
law, shall not be eligible for parole."
Even if the penalty of death is not to be
imposed on Quiachon because of the
prohibition in R.A. No. 9346, the civil
indemnity of P75,000.00 is still proper because,
following the ratiocination in People v. Victor,
the said award is not dependent on the actual
imposition of the death penalty but on the
fact that qualifying circumstances warranting the
imposition of the death penalty attended the
commission of the offense [end].
People v. Salome, G.R. No. 169078, 31 August
2006
Facts: Sally Idanan, then 13 years old, was
sleeping inside her house when accused Nicanor
Salome entered the house. He poked a knife at the
base of her neck, undressed and inserted his penis
inside her vagina. Eventually, a complaint for rape
against Salome was filed in the MCTC, which
found Salome guilty and sentenced him to suffer
the death penalty. The CA affirmed the
conviction.
Issue: Whether Salome ought to suffer death
penalty.
Ruling: Salome is sentenced to reclusion
perpetua without parole.
Since the crime of rape was committed by Salome
with the use of a deadly weapon, punishable by
reclusion perpetua to death, the presence of the
aggravating circumstance of dwelling, without the
presence of any mitigating circumstance, justified
the trial court's imposition of the death penalty.
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In light, however, of the passage of Republic Act
No. 9346 xxx signed into law xxx on June 24, 2006,
the imposition of the death penalty has been
prohibited.
After a thorough review of the records, the Court
agrees with the evaluation of the evidence by the
Regional Trial Court and the Court of Appeals.
Pursuant to the new law, even as the Court sustains
the conviction of Salome, the penalty imposed
upon him should be reduced to reclusion perpetua,
but appellant shall not be eligible for parole under
the Indeterminate Sentence Law.
It should be noted that while the new law prohibits
the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still
death and the offense is still heinous.
Consequently, the civil indemnity for the victim is
still P75,000. On the other hand, the automatic
appeal in cases when the trial court imposes the
death penalty will henceforth not apply, since its
imposition is now prohibited, so that there is a
need to perfect an appeal, if appeal is desired, from
a judgment of conviction for an offense where the
penalty imposed is reclusion perpetua in lieu of the
death penalty pursuant to the new law prohibiting
its imposition [end].
Afflictive Penalties:
RECLUSION PERPETUA
Life imprisonment is distinct and independent
from reclusion perpetua.
Reclusion perpetua Life imprisonment
Imposed in violation Imposed in violation
of the RPC. of special penal laws.
Carries a fixed No fixed duration.
duration: 20 to 40
years.
Carries with it Does not carry
accessory penalties. accessory penalties.
RECLUSION TEMPORAL
Duration is 12 years and 1 day to 20 years
PERPETUAL OR TEMPORARY ABSOLUTE
DISQUALIFICATION
PERPETUAL OR TEMPORARY SPECIAL
DISQUALIFICATION
Disqualification is both a principal and
accessory penalty
Art. 30. Effects of the penalties of perpetual or
temporary absolute disqualification. — The
penalties of perpetual or temporary absolute
disqualification for public office shall produce the
following effects:
1. The deprivation of the public offices and
employments which the offender may have
held, even if conferred by popular election.
2. The deprivation of the right to vote in any
election for any popular office or to be elected
to such office.
3. The disqualification for the offices or public
employments and for the exercise of any of the
rights mentioned.
In case of temporary disqualification, such
disqualification as is comprised in paragraphs
2 and 3 of this article shall last during the term
of the sentence.
4. The loss of all rights to retirement pay or
other pension for any office formerly held.
Art. 31. Effect of the penalties of perpetual or
temporary special disqualification. — The
penalties of perpetual or temporal special
disqualification for public office, profession or
calling shall produce the following effects:
1. The deprivation of the office, employment,
profession or calling affected;
2. The disqualification for holding similar
offices or employments either perpetually or
during the term of the sentence according to
the extent of such disqualification.
Art. 32. Effect of the penalties of perpetual or
temporary special disqualification for the exercise
of the right of suffrage. — The perpetual or
temporary special disqualification for the exercise
of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence,
according to the nature of said penalty, of the
right to vote in any popular election for any public
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office or to be elected to such office. Moreover, the shall be from six months and one day to six years,
offender shall not be permitted to hold any public except when suspension is imposed as an
office during the period of his disqualification. accessory penalty, in which case, its duration shall
be that of the principal penalty.
Art. 33. Effects of the penalties of suspension from
any public office, profession or calling, or the right DESTIERRO (6m 1d to 6y)
of suffrage. — The suspension from public office, A principal penalty. It also involves deprivation of
profession or calling, and the exercise of the right liberty.
of suffrage shall disqualify the offender from Art 27: see above
holding such office or exercising such profession
or calling or right of suffrage during the term of Art. 87: Destierro. — Any person sentenced to
the sentence. destierro shall not be permitted to enter the place
The person suspended from holding public or places designated in the sentence, nor within
office shall not hold another having similar the radius therein specified, which shall be not
functions during the period of his suspension. more than 250 and not less than 25 kilometers
from the place designated.
Perpetual absolute Temporary absolute
disqualification disqualification Light Penalties:
Effective during the Disqualification lasts ARRESTO MENOR (1-30 days)
lifetime of the convictduring the term of the PUBLIC CENSURE
and even after the sentence, and is A principal and indivisible penalty that has no
service of theremoved after the fixed duration.
sentence. service of the
sentence, except: FINE and BOND TO KEEP THE PEACE: Penalties
1. Deprivation of the common to all.
public
office/employment; Fine
2. Loss of all rights to A pecuniary penalty which is imposed by the
court in case of the judgment of conviction.
retirement pay or
Instead of imprisonment, the penalty imposed is
pension for any
fine.
office formerly held.
If Temporary Absolute Disqualification is When is fine afflictive, correctional, or light
imposed as a principal penalty, its duration is penalty, whether imposed as a single or as an
6Y1D to 12Y [See Codal, pg. 43]. alternative? (Art. 26)
Scale of penalty Amount of fine
PRISION MAYOR (Art 27, 6y and 1d to 12y) Afflictive Exceeds P6,000
Correctional Not exceed P6,000 but
Correctional Penalties: not less than P 200
PRISION CORRECCIONAL (Art 27: 6m 1d to 6y) Light Less than P 200
ARRESTO MAYOR (1m 1d to 6m.) [See additional discussions on Fines in Art. 66,
SUSPENSION (6m 1d to 6y) after ISLAW]
Both a principal and an accessory penalty
In the imposition of fine, the court must look
Art. 27: Prision correccional, suspension, and not only at the circumstances which affect
destierro. — The duration of the penalties of criminal liability [AC,MC] but also the
prision correccional, suspension and destierro capability of the accused to pay.

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Bond to keep the peace
A principal penalty
Art. 35. Effects of bond to keep the peace. — It
shall be the duty of any person sentenced to give
bond to keep the peace, to present two sufficient
sureties who shall undertake that such person 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 in
the judgment, or otherwise to deposit such
amount in the office of the clerk of the court to
guarantee said undertaking.
3. marital authority,
4. the right to manage his property and
5. the right to dispose his property by any act or
any conveyance inter vivos.
There is not prohibition to dispose of properties
mortis causa. Thus, a person under civil
interdiction can make a last will and testament
because the effect of the same is mortis causa or
after the death of such person, which is not
prohibited.
Donation is also allowed if it will take effect after
his death because that is mortis causa.

Bond to keep the Bond for good FORFEITURE AND CONFISCATION OF

peace behavior INSTRUMENTS AND PROCEEDS OF THE CRIME
[Not applicable to Applicable only to This is an accessory penalty which follows all
any particular case] cases of grave principal penalties.
threats and light Art. 45. Confiscation and forfeiture of the proceeds
threats. or instruments of the crime. — Every penalty
Failure to post a Failure to post a imposed for the commission of a felony shall carry
with it the forfeiture of the proceeds of the crime
bond to keep the bond for good
and the instruments or tools with which it was
peace results to behavior is destierro committed.
imprisonment under Art. 284. Such proceeds and instruments or tools
either for 6mo or shall be confiscated and forfeited in favor of the
30d, depending on Government, unless they be property of a third
whether the felony person not liable for the offense, but those articles
committed is grave which are not subject of lawful commerce shall be
or less grave on one destroyed.
hand, or a light
felony on the other. Thus, the rules on forfeiture are:
GR: The proceeds and instruments of the crime
Accessory Penalties are forfeited in favor of the government.
CIVIL INTERDICTION XPN: Unless they belong to a 3rd person who is
Under Articles 40 to 41, civil interdiction is an not a party to the crime.
accessory penalty that necessarily follows the XPN to XPN: if the articles are outside the
principal penalty of death, reclusion perpetua and lawful commerce of man.
reclusion temporal.
PAYMENT OF COST
Art. 34: Civil interdiction shall deprive the Cost refers to expenses of litigation
offender during the time of his sentence of the
rights of: Art. 37. Cost; What are included. — Costs shall
1. parental authority, include fees and indemnities in the course of the
2. guardianship, either as to the person or judicial proceedings, whether they be fixed or
property of any ward, unalterable amounts previously determined by

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law or regulations in force, or amounts not
subject to schedule.
Who shall pay the cost?
If an accused is convicted of a crime, cost shall be
adjudged against him. However, in case of
acquittal, each party must bear his own cost.
PREVENTIVE IMPRISONMENT
Art. 29. Period of preventive imprisonment
deducted from term of imprisonment. – Offenders
or accused who have undergone preventive
imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty,
with the full time during which they have
undergone preventive imprisonment if 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, except in the following cases:
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.
If the detention prisoner does not agree to
abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with
the assistance of a counsel and shall be credited in
the service of his sentence with four-fifths of the
time during which he has undergone preventive
imprisonment.
Credit for preventive imprisonment for the
penalty of reclusion perpetua shall be deducted
from thirty (30) years.
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 destierro, he shall be released after thirty (30)
days of preventive imprisonment (As Amended by
RA 10592).
Preventive imprisonment is the detention of
accused while the case against him is ongoing
trial either because the crime he committed is a
non-bailable offense and evidence of guilt is
strong; or the crime committed is a bailable
offense but he does not have the funds.
Purpose of preventive imprisonment: Primarily
to prevent the flight of the accused. The days may
be deducted in his time of sentence.
Under Art 29 as amended by RA 10592, there shall
be full credit or deduction if he voluntarily agrees
in writing [a Detainee’s manifestation: a written
declaration executed in the presence of a counsel
with the same disciplinary rules imposed on
convicted felons]. Otherwise, only 4/5 credit of
his preventive imprisonment to the time of
sentence, if he executes a Detainee’s Waiver:
executed in writing in the presence of counsel that
he does not agree to abide by the same rules and
regulations for convicted felons. [reformat this,
turn this into table]
If the offender is a juvenile offender, the rules in
Art. 29 does not apply. Whether he agrees in
writing or not, there must be full deduction. What
applies is Sec. [29], RA 9344 [Check].
The offender is qualified if what is involved is
deprivation of liberty. Ex. Fine- not qualified for
deduction.
These are disqualified:
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1. Recidivist criminal liability of the the criminal liability of
2. Summoned to serve sentence but failed to offender. the offender.
appear voluntarily XPN: Marital Rape
(Art. 266-C). Pardon
If the offender has served preventive granted by the wife to
imprisonment equal to or greater than the the husband in case of
maximum penalty that maybe imposed, the said rape shall extinguish
prisoner shall be immediately released. This is criminal action
without prejudice to the continuation of trial of already filed and
the case in court. liability, or even the
penalty already
NOTE: If detention has already exceeded the imposed by the court.
possible maximum imprisonment of the offense It cannot exempt the Offended party can
charged but his case is not yet terminated, file a offender from the waive the civil liability.
case for Habeas Corpus for the immediate release payment of civil [Prosec: pardon
of the accused. indemnity. extinguishes civil
liability as it is
Can the period of preventive imprisonment be deemed a waiver]
deducted in case of destierro? Granted only after Pardon should be
Yes. Because destierro also involves deprivation conviction and may be given before the
of liberty and has a fixed duration of 6 months and extended to any institution of criminal
1 day to 6 years. If the maximum penalty that offender. prosecution and must
maybe imposed is destierro, immediate release after be extended to both
undergoing preventive imprisonment of 30 days. offenders (Art. 344).
Remedy: Petition for habeas corpus because such This is applicable only
detention is already arbitrary in nature. in cases of private
crimes:
In People vs Gambao Perpenian was convicted  Seduction,
as accomplice for kidnapping for ransom. She was  Abduction,
17yo [when she committed the crime]. From 17-  Acts of
31 she was behind bars. SC ordered her immediate lasciviousness, and
release. She already undergone preventive
 Rape.
imprisonment more than the time of sentence.
Absolute pardon totally extinguishes criminal
PARDON liability (Art. 89) while conditional pardon
Art. 36. Pardon; its effect. — A pardon shall not partially extinguishes criminal liability (Art. 94).
work the restoration of the right to hold public
office, or the right of suffrage, unless such rights The accused is exempted from criminal liability,
be expressly restored by the terms of the pardon. but pardon [by the President] does not extinguish
civil liability because the same is personal to the
Pardon by the Chief Executive vis-à-vis victim.
Pardon by the offended party (BAR 1994; GN
2016) Pardon granted by the President shall extinguish
Pardon by the Chief Pardon by the criminal liability. Absolute pardon is one of the
Executive offended party grounds for totally extinguishing criminal liability.
It extinguishes the It does not extinguish May only be given after conviction through final

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judgment. If the case is ongoing trial, the pardon
by the President has no effect to the criminal
action already filed in court. Also, pardon by the
President does not extinguish civil liability.
In addition, Presidential Pardon does not
automatically restore the following rights, and they
must be specifically stated by the terms of the
pardon:
1. to hold public office,
2. to vote and be voted, and
3. to exercise his right of suffrage.
[NOTE: This is not included in the CrimRev
Syllabus, but see Risos-Vidal v. COMELEC &
Estrada, G.R. No. 20666, 21 January 2015].
Prosec G: Answer first according to the provisions
of the RPC. Risks-Vidal case is controversial.
Eg. Senator X was convicted for plunder. The
president pardoned him. May Senator X now vote
and run for public office?
This is how to answer: The pardon did not
expressly restore the right to vote and be voted,
thus Sen. X cannot do so. However, in Risos-Vidal
xxx.
Pardon granted by the offended party, does not
extinguish the criminal liability of the offender
whether it is a public crime or a private crime when
the criminal action was already filed in court.
Ex: Accused killed the victim. The heirs filed a case
of homicide. There was an extrajudicial settlement
of the case. Family of the accused paid 1M to the
family of the victim. Family of the victim had
pardoned the said accused. Effect on the criminal
liability in an action already filed in court? None.
The participation of the private offended party is
only to recover civil indemnity. It is an EXPRESS
WAIVER to recover civil indemnity [?].
What if the crime committed is a private crime?
Will not extinguish criminal action already filed in
court.
Pardon by the private offended party only bars
CRIMINAL PROSECUTION. Hence, before the
institution of the criminal case against the said
accused. EXCEPTION: In case of Marital Rape.
PECUNIARY LIABILITIES
Art. 38. Pecuniary liabilities; Order of payment.
— In case the property of the offender should not
be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following
order:
1. The reparation of the damage caused.
2. Indemnification of consequential damages
3. The fine.
4. The cost of the proceedings.
Pecuniary liabilities Pecuniary penalties
(Art. 25)
Imposed by the court Imposed by the court
in case of conviction in case of conviction.
but not as a penalty.
Four PLs: (see Art. 38) Only 2 PPs:
 Fine, and
 Payment of cost
SUBSIDIARY PENALTY [IMPRISONMENT]
 Is a substitute penalty for fine and fine alone.
[The] penalty [imposed] includes fine and the
convict happens to be insolvent.
 There must also be EXPRESS statement in
the judgment that in case of insolvency to pay
the fine, he shall suffer subsidiary
imprisonment. If no express statement, cannot
place him behind bars if insolvent. Why?
Because subsidiary penalty is not an accessory
penalty.
 Not a principal penalty nor an accessory
penalty, but only a substitute penalty for
fine.
 Rate has been amended by RA 10159 which
states: "If the convict has no property with
which to meet the fine mentioned m
paragraph 3 of the next preceding article, he
shall be subject to a subsidiary personal
liability at the rate of one day for each
amount equivalent to the highest minimum
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wage rate prevailing in the Philippines at the
time of the rendition of judgment of
conviction by the trial court" Highest
minimum wage now is P491. So 1 day
imprisonment is equivalent to P491.
 This highest min. Wage rate will always be
based in Metro Manila, because the MWR is
highest here.
Art. 39. Subsidiary Penalty. – If the convict has no
property with which to meet the fine mentioned in
paragraph 3 of the next preceding article, he shall
be subject to a subsidiary personal liability at the
rate of one day for each amount equivalent to the
highest minimum wage rate prevailing in the
Philippines at the time of the rendition of
judgment of conviction by the trial court, subject
to the following rules:
1. If the principal penalty imposed be prision
correctional or arresto and fine, he shall
remain under confinement until his fine
referred in the preceding paragraph is
satisfied, but his subsidiary imprisonment
shall not exceed 1/3rd of the term of the
sentence, and in no case shall it continue for
more than one year, and no fraction or part of
a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a
fine, the subsidiary imprisonment shall not
exceed six months, if the culprit shall have
been prosecuted for a grave or less grave
felony, and shall not exceed fifteen days, if for
a light felony.
3. When the principal penalty imposed is higher
than prision correctional, no subsidiary
imprisonment shall be imposed upon the
culprit.
4. If the principal penalty imposed is not to be
executed by confinement in a penal institution,
but such penalty is of fixed duration
[indivisible penalty], the convict, during the
period of time established in the preceding
rules, shall continue to suffer the same
deprivations as those of which the principal
penalty consists. [Prosec G: He cannot be
sentenced to suffer subsidiary penalty].
5. The subsidiary personal liability which the
convict may have suffered by reason of his
insolvency shall not relieve him from the fine
in case his financial circumstances should
improve. (As amended by Republic Act No.
5465, which lapsed into law on April 21, 1969
[RA 10159]).
Note: if penalty is not to be executed by
confinement, but of fixed duration. Ex. if
suspension or destierro. Subsidiary imprisonment
shall also be destierro or suspension but shall not
exceed 1/3rd of the term of sentence and in no case
to continue for more than one year.
Q: What if the penalty is not to be executed by
confinement but with a fixed duration?
A: Apply rule 1: not exceed 1/3rd of the term but
not exceed 1 year.
Instances when convict cannot be made to
suffer subsidiary penalty
1. When the penalty imposed by the court does
not include fine,
2. Penalty includes fine but there is no express
statement in the judgment that in case of
insolvency to pay the fine, he shall suffer
subsidiary penalty,
3. When what the convict failed to pay is a fine
but reparation of damage caused or
indemnification for damages because
subsidiary penalty is a penalty against fine and
fine alone,
4. If the principal penalty that goes with fine
higher than prision correctional, and
5. If the principal penalty that goes with fine is not
to be executed by confinement in a penal
institution and without a fixed duration.
X was convicted of reckless imprudence causing
damage to property. Penalty imposed on him is
fine and public censure. Lower portion of the
decision “in case of insolvency to pay the fine, he
shall suffer subsidiary penalty”. The court is wrong
because the principal penalty that goes with fine is
public censure is not to be executed in a penal
institution and is an indivisible penalty.
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Accused convicted, Prision mayor and fine is
imposed. Decision “in case of insolvency to pay
the fine, he shall suffer subsidiary penalty”. The
court is wrong. Prision mayor is more than 6 years.
Accused convicted. Penalty imposed on him is fine
alone. The judgement became final and executory.
Unsatisfied writ of execution. Judge ordered for his
arrest to suffer subsidiary penalty. The court is
wrong. Failure to state that in case of insolvency to
pay the fine, convict cannot be made to suffer
subsidiary penalty.
Convict suffered subsidiary penalty. He went
home, his parents died, he got his inheritance. He
is now a rich man. The state learned about this. Can
the state go after him to pay the fine? Yes, because
his financial circumstances has already improved.
X was sentenced with public censure and fine. May
he be made to suffer subsidiary penalty?
NO: Public Censure is not to be executed by
confinement AND it has no fixed duration. Thus
subsidiary penalty is not applicable.
Q: What if the sentence is 20 counts of arresto mayor
and a fine of P200, and is made to suffer subsidiary
penalty in case of failure to pay fine due to
insolvency? Is the judge correct?
A: Yes.
20 arresto mayors totals to 10 years. However, Art.
70 applies because there is a successive service of
sentences. Therefore apply the three-fold rule:
thus, 3X of arresto mayor (max 6 months)=1 year 6
months.
After you apply the three-fold rule, determine
if whether subsidiary penalty [imprisonment]
applies under Art. 39. Since 1y 6m is within the
maximum for Art. 39, subsidiary imprisonment
may be ordered. Thus the judge is correct.
*Article 40-45 provide for the accessory
penalties,
*Art 30 -35 provide for the different accessory
penalties that attach to every principal
penalty.
COMPLEX CRIMES and SPECIAL COMPLEX
CRIMES (BAR 5X)
Article 48. Penalty for complex crimes. - When a
single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary
means for committing the other, the penalty for
the most serious crime shall be imposed, the same
to be applied in its maximum period.
1. COMPOUND CRIME
Elements of compound crime:
1. Offender performs a single act;
2. The act resulted in two or more grave or
less grave felonies.
Basis: singularity of act, NOT singularity of
impulse.
Effect: Penalty for the most serious charge in its
maximum period. File only 1 information.
Example: aberratio ictus
A aimed the gun at B. But because of poor aim, it
shot C a pedestrian walking. Treachery was
attended. As to B, crime committed is attempted
murder. As to C, murder. Crime committed is
attempted murder.
A) A political rival placed a bomb on B’s car.
A person died, several persons injured
A single act placing the bomb produces two or less
grave felonies. Crime is murder with multiple
frustrated murder.
B) Two persons died: Double murder
C) Many persons died: Multiple murder with
multiple frustrated murder.
D) Machine gun was used, different bullets come
out, 10 people were killed. Multiple murder or 10
counts of murder?
As many crimes are there are as many persons.
Not a compound crime therefore.
X placed a bomb under the car of Y. When Y and
wife and 3 children opened the car, it exploded.
Children survived due to medical treatment. H and
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W died. It resulted to 5 grave felonies. 2 murder
and 3 frustrated murder. Crime: Double murder
with multiple frustrated murder. One information
because it is a complex crime.
In the same problem, H opened the car, all of them
died. X is liable for multiple murder because the
single act of placing a bomb resulting to 5 grave
felonies. Only one charge/one information filed in
court- multiple murder.
X is armed with M-16 high powered rifle, machine
gun. He went inside the conference room. One
pull of trigger, many bullets came out hitting 5
persons. X is liable for 5 counts of murder. Not a
complex crime.
If the weapon used is a high powered machine gun,
you do not take into consideration the single act of
pulling the trigger but the number of bullets that
came out of the body of the gun and killed and
wounded the offended party.
People vs Punzalan, G.R. No. 199892, 10
December 2012: Complex crime of Double
murder with multiple attempted murder. Single act
of stepping in the accelerator of the vehicle and
swerving and ramming over the victims resulting
to death and attempt to kill the other.
Facts: Punzalan, smelling of liquor, drove a Nissan
van and ran over several Navy personnel, with
whom he earlier in the afternoon had an argument
in a videoke bar. Two seamen (SN1 Andal and SN1
Duclayna) died as a result, three others were hit
(SN1 Cuya, SN1 Bacosa & SN1 Bundang), while
one (SN1 Domingo) was not hit.
Punzalan was charged in the RTC for the incident,
and the trial court convicted Punzalan for the
complex crime of double murder with multiple
attempted murder, and the CA affirmed the
conviction.
Issue: Whether Punzalan is guilty of double
murder with multiple attempted murder.
Ruling: Appeal DENIED.
The felony committed by Punzalan as correctly
found by the RTC and the Court of Appeals,
double murder with multiple attempted
murder, is a complex crime contemplated under
Article 48 of the Revised Penal Code.
Punzalan was animated by a single purpose, to kill
the navy personnel, and committed a single act of
stepping on the accelerator, swerving to the right
side of the road ramming through the navy
personnel, causing the death of SN1 Andal and
SN1 Duclayna and, at the same time, constituting
an attempt to kill SN1 Cuya, SN1 Bacosa, SN1
Bundang and SN1 Domingo. The crimes of
murder and attempted murder are both grave
felonies as the law attaches an afflictive penalty to
capital punishment (reclusion perpetua to death) for
murder while attempted murder is punished by
prision mayor, an afflictive penalty [end].
People v. Nelmida, G.R. No. 184500, 18
September 2012
Ambush of Mayor Tawan-tawan. Repeated firing
resulted to 2 deaths and wounding of the others.
SC: convicted each accused of 2 counts of murder
and 7 counts of attempted murder. Complexity of
crimes under Art 48 does not apply because the
ACT IS NOT A SINGLE ACT, there are
SEVERAL OFFENDERS PERFORMING
DIFFERENT ACTS using different firearms.
There are as many crimes committed as there are
as many persons killed or wounded.
FACTS: Mayor Tawan-Tawan of Salvador, Lanao
Del Norte, with his security escorts composed of
members of the Army, PNP and civilian aides were
onboard his pick-up service vehicle on their way
home. Appellants Wenceslao Nelmida & Ricardo
Ajok, together with other armed men, waited in
ambush for Mayor Tawan-tawan’s vehicle. When
the pick-up passed the group, Nelmida, Ajok and
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his group opened fire, killing PO3 Dela Cruz &
T/Sgt. Dacoco, while the other security escorts of
the Mayor were injured. Mayor Tawan-tawan and
Palanas were unharmed.
An information for double murder with
multiple frustrated murder and double
attempted murder was filed in the RTC of
Kapatagan, Lanao Del Norte, against appellants
Nelmida and Ajok, as well as Serafico, Bacong, Sr.,
Bacong Jr., Abarquez, Bartolo, Espanola,
Paninsuro, Casinillo, and other John Does. Only
Nelmida, Ajok and Samuel Cutad were arrested,
and the latter was discharged as state witness. Both
Nelmida and Ajok alleged that they were not at the
crime scene at the time of the shooting.
The RTC convicted Nelmida and Ajok as charged.
The CA affirmed the conviction.
ISSUE: Whether the conviction for double
murder with multiple frustrated murder and
double attempted murder is correct.
RULING: No.
The trial court, as well as the appellate court,
convicted appellants of double murder with
multiple frustrated murder and double attempted
murder. This Court believes, however, that
appellants should be convicted not of a
complex crime but of separate crimes of two
(2) counts of murder and seven (7) counts of
attempted murder as the killing and wounding of
the victims in this case were not the result of a
single act but of several acts of the appellants, thus,
making Article 48 of the Revised Penal Code
inapplicable.
What brings this case out of the ordinary is the
issue of applicability of Article 48 of the Revised
Penal Code. Its resolution would determine
whether the conviction of appellants must be for
the separate crimes of two (2) counts of murder
and seven (7) counts of attempted murder or of the
complex crime of double murder with multiple
frustrated murder and double attempted murder.
In a complex crime, two or more crimes are
actually committed, however, in the eyes of the law
and in the conscience of the offender they
constitute only one crime, thus, only one penalty is
imposed. There are two kinds of complex crime.
The first is known as compound crime, or when
a single act constitutes two or more grave or less
grave felonies while the other is known as
complex crime proper, or when an offense is a
necessary means for committing the other. The
classic example of the first kind is when a single
bullet results in the death of two or more persons.
A different rule governs where separate and
distinct acts result in a number killed. Deeply
rooted is the doctrine that when various
victims expire from separate shots, such acts
constitute separate and distinct crimes.
Evidently, there is in this case no complex crime
proper. And the circumstances present in this case
do not fit exactly the description of a compound
crime. From its factual backdrop, it can easily be
gleaned that the killing and wounding of the
victims were not the result of a single discharge of
firearms by the appellants and their co-accused. To
note, appellants and their co-accused opened fire
and rained bullets on the vehicle boarded by Mayor
Tawan-tawan and his group. As a result, two
security escorts died while five (5) of them were
wounded and injured. The victims sustained
gunshot wounds in different parts of their bodies.
Therefrom, it cannot be gainsaid that more than
one bullet had hit the victims. Moreover, more
than one gunman fired at the vehicle of the victims.
As held in People v. Valdez, each act by each gunman
pulling the trigger of their respective firearms,
aiming each particular moment at different persons
constitute distinct and individual acts which cannot
give rise to a complex crime.
Obviously, appellants and their co-accused
performed not only a single act but several
individual and distinct acts in the commission of
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the crime. Thus, Article 48 of the Revised Penal
Code would not apply for it speaks only of a
“single act.”
With the presence of conspiracy in the case at
bench, appellants and their co accused had
assumed joint criminal responsibility - the act of
one is the act of all. The ascertainment of who
among them actually hit, killed and/or caused
injury to the victims already becomes immaterial.
Collective responsibility replaced individual
responsibility. The Lawas doctrine, premised on
the impossibility of determining who killed whom,
cannot, to repeat, be applied.
Interestingly, in People v. De los Santos, People v.
Abella, People v. Garcia and People v. Pincalin, this
Court also applied Article 48 of the Revised Penal
Code even though several acts were performed by
the accused and conspiracy attended the
commission of the crime.
In applying Article 48 of the Revised Penal Code
in Garcia and Pincalin, this Court, gave the same
justification as in Abella: that both cases were
covered by the rule that “when for the
attainment of a single purpose, which
constitutes an offense various acts are
executed, such acts must be considered as
only one offense, a complex one.”
Correspondingly, “where a conspiracy animates
several persons with a single purpose, their
individual acts done in pursuance of that
purpose are looked upon as a single act, the act
of execution, giving rise to a complex offense.
Various acts committed under one criminal
impulse may constitute a single complex offense.
We however found no intention by this Court to
establish as doctrine, contrary to Lawas, that Article
48 is applicable even in cases where several acts
were performed by the accused and conspiracy
attended the commission of the crime. In Pincalin,
this Court has already clarified that: [n]onetheless,
this Court further held that “in other cases where
several killings on the same occasion were
perpetrated, but not involving prisoners, a
different rule may be applied, that is to say, the
killings would be treated as separate offenses, as
opined by Mr. Justice Makasiar and as held in some
decided cases.”
De los Santos, Abella, Garcia and Pincalin, therefore,
were exceptions to the general rule stated in Article
48 which exceptions were drawn by the peculiar
circumstance of the cases.
The application of the Abella doctrine, has already
been clarified in Pincalin, thus: where several
killings on the same occasion were perpetrated, but
not involving prisoners, a different rule may be
applied, that is to say, the killings would be treated
as separate offenses. Since in Sanidad, the killings
did not involve prisoners or it was not a case of
prisoners killing fellow prisoners. As such, Abella
would not apply.
To repeat, in Lawas, this Court was merely forced
to apply Article 48 of the Revised Penal Code
because of the impossibility of ascertaining the
number of persons killed by each accused. Since
conspiracy was not proven therein, joint criminal
responsibility could not be attributed to the
accused. Each accused could not be held liable for
separate crimes because of lack of clear evidence
showing the number of persons actually killed by
each of them.
Proven conspiracy could have overcome the
difficulty.
Our repeated ruling is that in conspiracy, the act of
one is the act of all. It is as though each one
performed the act of each one of the conspirators.
Each one is criminally responsible for each one of
the deaths and injuries of the several victims. The
severalty of the acts prevents the application of
Article 48. The applicability of Article 48
depends upon the singularity of the act, thus
the definitional phrase “a single act constitutes
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two or more grave or less grave felonies.” This
is not an original reading of the law. In People v.
Hon. Pineda, the Court already recognized the
“deeply rooted x x x doctrine that when various
victims expire from separate shots, such acts
constitute separate and distinct crimes.” As we
observed in People v. Tabaco, clarifying the
applicability of Article 48 of the [Revised Penal
Code], [this Court] further stated in [Hon.] Pineda
that “to apply the first half of Article 48, x x x
there must be singularity of criminal act;
singularity of criminal impulse is not written
into the law.”
With all the foregoing, this Court holds
appellants liable for the separate crimes of two
(2) counts of murder and seven (7) counts of
attempted murder [end].
2. COMPLEX CRIME PROPER
When the offense is a necessary means to
commit the other offense.
Elements of Complex Crime Proper:
1. Two offenses are committed,
2. One offense is a necessary means to
commit the other,
3. Both offenses are punished by the same
statute
Effect: like compound crimes, the penalty for the
most serious crime shall be imposed, in its
maximum period.
Examples:
a) Rape with forcible abduction - A was on the
ladder of the house, B a woman abducted her
against her will and with lewd design
b) Estafa thru falsification of public document.
Person falsifies a public document -
Falsification is a necessary means to defraud
another;
No estafa by falsification of private document.
A cash voucher was falsified. A cash voucher is
not a commercial document because it is not
defined or regulated by the Code of Commerce or
other mercantile laws. It is a private document.
No crime such as estafa with falsification of
private document. When it is falsified, determine
what to charge. Only one charge. Damage is
essential element of both. There can be no twice
recovery for damages. Damage not an element of
falsification of public document.
If estafa cannot be committed without
falsification - falsification is the correct charge,
estafa is merely a consequence. But if estafa can
be committed without falsifying – estafa is the
correct charge, falsification is only incidental.
3. SPECIAL COMPLEX CRIME
In reality two or more crimes committed but in the
eyes of law only one. The law provides what
crimes would be complexed and what crimes go
together.
Examples:
a) Robbery with homicide - A was robbing the
house, in course of robbery the owner of house
was awaken, he shot the owner, Art. 294:
reclusion perpetua to death,
b) Kidnapping with homicide- A kidnapped B,
when b is trying to escape he shot B. Law
provides for specific penalty which is death
c) Rape with homicide - A raped B, after raping he
killed B. Art 266B – reclusion perpetua to death
if in occasion of rape, homicide is committed.
d) Attempted Rape with Homicide- There is an
attempt to rape the victim. In the course
thereof, he killed the victim;
Special complex Complex Crime
crime (Art. 48)
Law provides what Two or more grave or
offense which should less grave offense, or
be complexed. an offense is a
necessary means to
commit the other.
The law provides for The penalty for the
the specific penalty for most serious offense is
the combined crimes. imposed in the
maximum period.
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If a light felony is If a light felony is
committed, generally, committed, generally,
it is absorbed by the it brings about a
said special complex separate and distinct
crime. charge.
4. CONTINUED CRIME, CONTINUOUS
CRIME, DELICTO CONTINUADO
When the offender is impelled by a single
criminal impulse commits a series of overt acts
in about the same time and about the same place
violating one and the same provision of law.
Requisites of Delicto Continuado (Defensor-
Santiago v. Garchitorena & People):
1. Plurality of acts performed during a
period of time;
2. Unity of penal provisions violated;
3. Unity of criminal purpose or aim.
Basis is singularity of impulse.
In the book of Reyes, there are many example of
this.
Example. A, B, C, D lives in one compound. All
engaged in the business of selling rooster. One
night, 11:00 in the evening here comes X. While
they were sleeping, X took the rooster of A, then
of B, then of C, then of D. How many crimes will
you file against X?
Crime committed is one charge of theft. X
impelled by a single impulse committed overt
acts leading to theft.
Q: X has been designated by a condominium
company to sell its condominium units. However,
he is not entrusted to collect the amortization fees
from the buyers. But X is in need of money. One
day, say on March 1, he went to the first unit owner
A and he collected the amortization fees
amounting to P10,000. He also went to the second
unit owner B and collected the amount of
P10,0000 amortization fees. Then, he also went to
the third unit owner C and collected the P10,000
amortization fees. Lastly, went to the fourth unit
owner D and collected the P10,000 amortization
fees too. So, all in all, he collected P40,000
amortization fees. He appropriated this collections
for his own benefit. He was not tasked and
entrusted by the company to make these
collections. How many crimes of estafa have been
committed by X?
A: X committed only 1 count of estafa because
it is considered as a continuous crime or delito
continuando. He is impelled by a single criminal
impulse and committed a series of overt acts in
about the same time and about the same place, in
the same condominium unit, violating one and
the same provision of law.
Defensor-Santiago v. Justice Garchitorena &
People, G.R. No. 109266, 2 December 1993.
Facts: Petitioner Miriam Defensor-Santiago was
charged in the Sandiganbayan with the violation of
Sec. 3(e) the Anti-Graft & Corrupt Practices Act
for favoring 32 “unqualified” aliens with the
benefits of the Alien Legalization Program.
Defender-Santiago moved for a bill of particulars,
contending that unless she be provided with the
names and identities of the “aliens” she would not
be able to adequately prepare for trial. Initially, the
public prosecutors stated that they would file only
one amended complaint, but they later filed 32
amended informations, separately naming each of
the aliens in each of the informations. The
Sandiganbayan admitted the 32 amended
informations.
Issue: Whether the admission of 32 amended
informations was correct.
Ruling: No. Sandiganbayan is ordered to
consolidate the 32 amended informations into
1 information charging only 1 offense.
5. CONTINUING CRIME OR TRANSITORY
OFFENSE
This is more on remedial law not in criminal law.
The offender may be prosecuted in any courts of
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the place where any of the crime has been felony is general terms, it shall be understood as
committed. applicable to the consummated felony.

Limitation: the moment he is prosecuted in one
court, he can no longer be prosecuted in any other
court.
Example: violation of BP 22.
X in payment of his obligation, issued a postdated
check to Y in Manila, on the maturity date, Y
deposited the check to his depositary bank in
Quezon City. The check however was dishonored
by the drawee bank in Caloocan City.
Notice of dishonor was sent. X failed to make
good the check. Where may Y file the case for
violation of BP 22? Before the MTC of Manila?
Before the MTC of Quezon City? Before the MTC
of Caloocan City?
A: In any of the aforementioned courts because
the elements of the crime happened in any of these
places. Provided the BP 22 case has already been
filed in the MTC of Manila, the said case can no
longer be filed before the MTC of Quezon City or
Caloocan City.
NOTE: not all cases of estafa are continuing
crimes. Only estafa by post-dating a check (Art.
315(2)(d)).
Art. 46. Penalty to be imposed upon principals in
general. — The penalty prescribed by law for the
commission of a felony shall be imposed upon the
principals in the commission of such felony.
Whenever the law prescribes a penalty for a
Under Article 46, the penalty prescribed by law
for every felony shall only be applied to
principals, accomplice and shall be only imposed
to consummated felonies. How about to
frustrated homicide, accessory penalties?
Ex: Homicide under Art. 249 - Penalty is Reclusion
Temporal - this penalty shall be the one imposed on
the principal offender in homicide/consummated
homicide
What if an offender is an accomplice/accessory?
Or if the penalty is in the frustrated or attempted
stages?
GR: Arts. 50-57 provides that if the offender is an:
Accomplice, you go 1 degree lower
Accessory - 2 degrees lower from the penalty
prescribed by law
Frustrated Stage - 1 degree lower from the penalty
prescribed by law
Attempted Stage - 2 degrees lower from the
penalty prescribed by law
XPN: Art. 60 - Even if Arts. 50-57 provide for the
rules as to the imposition of penalties on an
accomplice/accessory, frustrated or attempted
stages, if the law specially provides a penalty for a
mere frustration or attempt, and for the
accomplice or accessory, that specifically provided
by law shall be the one imposed and not the
provisions in Arts. 50-57. See table below:

Penalties imposed on principals, accomplices & accessories in accordance to the stages of

committing a felony (Arts. 50-57) [GN 2016]
CONSUMMATED FRUSTRATED ATTEMPTED
PRINCIPALS Penalty prescribed by 1 degree lower than the 2 degrees lower than the
law for the offense. penalty prescribed by penalty prescribed by
law. law.
ACCOMPLICES 1 degree lower than the 2 degrees lower than the 3 degrees lower than the
penalty prescribed by penalty prescribed by penalty prescribed by
law. law for a frustrated law for [an attempted]
felony. felony.

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ACCESSORIES 2 degrees lower than the 3 degrees lower than the 4 degrees lower than the
penalty prescribed by penalty prescribed by penalty prescribed by
law. law for [a frustrated] law for an attempted
felony. felony.

NOTE:
GR:
1. Penalties are imposed upon the principals,
2. Whenever the law prescribes a penalty for a felony in general terms, it shall be understood to apply to
a consummated felony.

XPN: These shall not apply if:

1. The law expressly provides penalties for accomplices and accessories of a crime,
2. The law expressly provides penalties for frustrated and attempted stages.

Art. 62. Effects of the Attendance of Mitigating or
Aggravating Circumstances and of Habitual
Delinquency. — Mitigating or aggravating
circumstances and habitual delinquency shall be
taken into account for the purpose of diminishing
or increasing the penalty in conformity with the
following rules:
1. Aggravating circumstances which in
themselves constitute a crime specially
punishable by law or which are included by
the law in defining a crime and prescribing the
penalty therefor shall not be taken into
account for the purpose of increasing the
penalty.
1(a). When in the commission of the crime,
advantage was taken by the offender of his
public position, the penalty to be imposed shall
be in its maximum regardless of mitigating
circumstances.
The maximum penalty shall be imposed if
the offense was committed by any person who
belongs to an organized/syndicated crime
group.
An organized/syndicated crime group
means a group of two or more persons
collaborating, confederating or mutually
helping one another for purposes of gain in the
commission of any crime (As amended by RA
7659).
2. The same rule shall apply with respect to any
aggravating circumstances inherent in the
crime to such a degree that it must of necessity
accompany the commission thereof.
3. Aggravating or mitigating circumstances
which arise from the moral attributes of the
offender, or from his private relations with the
offended party, or from any other personal
cause, shall only serve to aggravate or mitigate
the liability of the principals, accomplices and
accessories as to whom such circumstances are
attendant.
4. The circumstances which consist in the
material execution of the act, or in the means
employed to accomplish it, shall serve to
aggravate or mitigate the liability of those
persons only who had knowledge of them at
the time of the execution of the act or their
cooperation therein.
5. Habitual delinquency shall have the following
effects:
(a) Upon a third conviction, the culprit shall be
sentenced to the penalty provided by law for
the last crime of which he be found guilty and
to the additional penalty of prisión
correccional in its medium and maximum
periods;
(b) Upon a fourth conviction, the culprit shall be
sentenced to the penalty provided for the last
crime of which he be found guilty and to the
additional penalty of prisión mayor in its
minimum and medium periods; and
(c) Upon a fifth or additional conviction, the
culprit shall be sentenced to the penalty

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provided for the last crime of which he be
found guilty and to the additional penalty of
prisión mayor in its maximum period to
reclusión temporal in its minimum period.
Notwithstanding the provisions of this
article, the total of the two penalties to be imposed
upon the offender, in conformity herewith, shall
in no case exceed 30 years.
For the purpose of this article, a person
shall be deemed to be habitual delinquent, if
within a period of ten years from the date of his
release or last conviction of the crimes of serious
or less serious physical injuries, [robbery, theft,
estafa, or falsification], he is found guilty of any
of said crimes a third time or oftener.
Public officer taking advantage of his public
position is no longer generic aggravating
circumstances that can be offset because by virtue
of RA 7659 it is now a special aggravating
circumstance. The maximum penalty prescribed
by law.
Organized or Syndicated crime group- Group of
two or more persons collaborating, confederating
and mutually helping another for purposes of gain
in the commission of the crime. The maximum
penalty prescribed by law if offender is found or
the fact that he is a member of this group. It is a
special aggravating circumstance under this
article.
If the information charges A, B, C, D as
collaborating, confederating and mutually
helping another for purposes of gain in the
commission of the crime. This is what the
information alleges. Trial found this so. The judge
considered conspiracy and considered this
special aggravating circumstance. Is the court
correct?
Answer: The judge is not correct. Before the
special aggravating circumstance be considered
the court, evidence must show was held to
commit crimes involving gain. There must be
evidence to show.
HABITUAL DELINQUENCY
QUASI-RECIDIVISM (Art. 160): a Special AC.
[NOTE: Discussions on HD and QR were
transferred to the section on Aggravating
Circumstances, pg. 143 onwards]
Article 63. Rules for the application of indivisible
penalties. - In all cases in which the law prescribes
a single indivisible penalty, it shall be applied by
the courts regardless of any mitigating or
aggravating circumstances that may have
attended the commission of the deed.
In all cases in which the law prescribes a
penalty composed of two indivisible penalties, the
following rules shall be observed in the
application thereof:
1. When in the commission of the deed there is
present only one aggravating circumstance,
the greater penalty shall be applied.
2. When there are neither mitigating nor
aggravating circumstances and there is no
aggravating circumstance, the lesser penalty
shall be applied.
3. When the commission of the act is attended by
some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty
shall be applied.
4. When both mitigating and aggravating
circumstances attended the commission of the
act, the court shall reasonably allow them to
offset one another in consideration of their
number and importance, for the purpose of
applying the penalty in accordance with the
preceding rules, according to the result of such
compensation.
*When there is a privileged mitigating
circumstance, apply it first before computing the
penalties.
Example: [Single, indivisible penalty:] Rape,
penalty is reclusion perpetua. If the penalty is single
and indivisible, it shall be imposed as is, without
consideration of any AC or MC.
What if the crime was murder: penalty is reclusion
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perpetua to death: two indivisible penalties.
If there is one AC: greater penalty (death).
If there is one MC, no AC: lesser penalty (reclusion
perpetuaI).
If there is no MC or AC: lesser penalty.
If there are MCs or ACs: offset, then apply the
above rules.
NOTE: Don’t consider ISLAW, because it does
not apply in indivisible penalties.
Article 64. Rules for the application of penalties
which contain three periods. - In cases in which the
penalties prescribed by law contain three periods,
whether it be a single divisible penalty or
composed of three different penalties, each one of
which forms a period in accordance with the
provisions of Articles 76 and 77, the court shall
observe for the application of the penalty the
following rules, according to whether there are or
are not mitigating or aggravating circumstances:
1. When there are neither aggravating nor
mitigating circumstances, they shall impose
the penalty prescribed by law in its medium
period.
2. When only a mitigating circumstances is
present in the commission of the act, they shall
impose the penalty in its minimum period.
3. When an aggravating circumstance is present
in the commission of the act, they shall impose
the penalty in its maximum period.
4. When both mitigating and aggravating
circumstances are present, the court shall
reasonably offset those of one class against the
other according to their relative weight.
5. When there are two or more mitigating
circumstances and no aggravating
circumstances are present, the court shall
impose the penalty next lower to that
prescribed by law, in the period that it may
deem applicable, according to the number and
nature of such circumstances. [Lower by 1
degree in its proper period. Also apply PMC first]
6. Whatever may be the number and nature of
the aggravating circumstances, the courts
shall not impose a greater penalty than that
prescribed by law, in its maximum period.
7. Within the limits of each period, the court
shall determine the extent of the penalty
according to the number and nature of the
aggravating and mitigating circumstances and
the greater and lesser extent of the evil
produced by the crime.
Degree of penalty
Is a penalty prescribed by law for every crime
committed whether divisible or indivisible.
Period of penalty
Refers to the subdivision of every said divisible
penalty into three portions, the first portion is
minimum, second is medium, third is maximum
Indivisible penalty - penalty with no fixed
duration:
 death,
 reclusion perpetua,
 perpetual absolute disqualification,
 perpetual special disqualification,
o NOTE: Temporary DQ has a duration.
 public censure, and
 fine.
Divisible penalty - penalty with fixed duration
and therefore can be divided into three periods.
The first portion is minimum, second is medium,
and third is maximum.
Article 27 was amended by RA 7659. Reclusion
perpetua has now a duration 20 years and 1 day.
But in People v Lucas, the SC said that there is no
clear legislative intent to make reclusion perpetua
divisible despite the amendment. When reclusion
perpetua is imposed as penalty, there is no need
to state duration. Hence it remains indivisible.
INDETERMINATE SENTENCE LAW (ISLAW)
Indeterminate Sentence Law (RA 4103)
modifies the imposition of penalty. It is applied
both to RPC and special laws. It provides for a
minimum and max term, such that the moment
the offender serves the minimum of the sentence,
he shall be eligible for parole. If granted, he will
serve the remainder of the sentence out of prison,
but subject to the supervision of the parole officer.
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The ISLAW is related to Art. 64 of the RPC.
Courts are mandated to fix a minimum term of
sentence and maximum term of sentence. When
he served minimum, he can be release for parole
under conditions. Under parole he is released but
under supervision of parole officer.
Objectives of ISLAW:
1. Uplift and redeem valuable human material,
and
2. Avoid unnecessary and excessive deprivation
of liberty.
Objectives are attained when the moment the
offender becomes eligible to apply for parole he
may be able to serve sentence out of jail.
Parole - conditional release of the offender form
the correctional institution after serving
minimum sentence after showing that he has
reformed. Note it does not extinguish criminal and
civil liability.
Requisites [Sec. 5?]
1. He must be placed in prison/jail to serve an
indeterminate sentence which exceeds 1 year
2. Served minimum term of sentence
3. Board of pardons and parole found that his
release is for greater interest of society.
ISL applies to all offenders and all felonies.
This act shall not apply to persons:
1. Convicted of offenses punished by death or life
imprisonment (reclusion perpetua is included,
based on jurisprudence);
2. Those convicted of
a. treason,
b. conspiracy or proposal to commit treason,
c. misprision of treason,
d. rebellion,
e. sedition, or
f. espionage,
3. Those convicted of piracy,
4. Those who are habitual delinquents,
NOTE: Recidivists are entitled to an
indeterminate sentence (People v. Jaranilla,
GR No. 28547, Feb. 22, 1974).,
5. Those who shall have escaped from
confinement or evaded sentence.
NOTE: A minor who escaped from
confinement in the reformatory is entitled to
the benefits of the law because confinement is
not considered imprisonment. (People v.
Perez, 44 OG 3884) (1991 Bar)).
6. Those who having been granted conditional
pardon by the President shall have violated
the terms thereof.
7. Those whose maximum period of
imprisonment does not exceed one year.
Effect of disqualification: Those not given an
indeterminate sentence are given a straight
penalty. There is no minimum or maximum
period; they have to serve the entire term of the
penalty.
Q: A final judgment was rendered against X. He
was granted conditional pardon by the Chief
Executive. He violated the terms and conditions of
the said pardon. He was charged with evasion of
service of sentence. Finding him guilty, can the
court impose upon him an indeterminate sentence?
A: NO. Because he is among those disqualified
under the law. By violating the condition of his
pardon he cannot avail of an indeterminate
sentence law.
Q: X has been convicted of final judgment of
serious physical injuries, thereafter he committed
homicide and the judge found him guilty of
homicide. Can the judge impose upon him an
indeterminate sentence?
A: X here is a recidivist. A recidivist is [disqualified]
qualified under the law from availing the ISL. Only
habitual delinquents can[not] be given an
indeterminate sentence.
Computation of penalties under ISLAW
Violation of the RPC - consider attendant
mitigating or aggravating circumstance.
1. Get first the maximum term of sentence with
all the attendant circumstances, in accordance
with Art. 64 (Acs and MCs).
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2. Then, lower it the one degree. Do not consider
anymore the attendant circumstances. This
applies to sound discretion of the court. So no
attendant circumstance shall be considered.
[NOTE: reword this in accordance with the
codal. I might as well include an illustration].
EXAMPLES OF ISL/PENALTIES:
Penalty for SIMPLE RAPE is the single
indivisible penalty of reclusion perpetua.
Whatever mitigating or aggravating circumstances
attended the commission of the crime, the penalty
to be imposed by law shall be “as is” – reclusion
perpetua.
Ex: Offender in the commission of an offense of
rape also committed one mitigating circumstance,
and then another mitigating circumstance, it was
done in an immediate vindication of a grave
offense. If there are 2 mitigating circumstances, the
judge cannot consider these because the penalty
imposed by law is a single indivisible penalty under
Art. 63, it shall be imposed as is regardless of
aggravating or mitigating circumstances.
Q: What if in the crime of RAPE, when the
penalty prescribed is a SINGLE
INDIVISIBLE PENALTY, it shall be
imposed “as is”.
Q: What if the crime committed is MURDER?
Under 248, the penalty for murder is
RECLUSION PERPETUA TO DEATH. It
consists of 2 indivisible penalties.
NO mitigating and 1 aggravating:
The law provides that let us say, the murder was
committed in the dwelling of the offended party/
so there is one mitigating circumstance and no
aggravating circumstance. The law provides the
greater penalty, death, shall be the one imposed.
No aggravating but 1 mitigating:
But what if in the commission of the crime there is
no aggravating circumstance, but there is 1
mitigating circumstance. Let us say of a passion
and obfuscation. The commission of the crime of
murder was committed by one mitigating
circumstance of passion and obfuscation. Art. 63,
provides the lesser of the penalty imposed by law
shall be imposed (reclusion perpetua).
No mitigating and no aggravating
circumstance:
In the commission of the crime of murder, no
mitigating and no aggravating circumstance, the
lesser penalty, shall be the one imposed.
2 mitigating and 1 aggravating:
In the commission of murder, both mitigating
(voluntary surrender and immediate vindication of
a grave offense) and aggravating (dwelling), so we
have 2 mitigating and 1 aggravating, Art 63
provides that you offset the 2 and apply the rules.
You offset the dwelling with voluntary surrender,
there is still one mitigating circumstance of
immediate vindication of a grave offense therefore,
the lesser penalty, reclusion perpetua shall be the one
imposed.
Privileged Mitigating Circumstance
The only MC that can defeat an indivisible
penalty is a PMC.
Eg. What if rape is committed by a MINOR? So
we have here minority, which is a PRIVILEGED
MITIGATING CIRCUMSTANCE. Since it is a
privilege mitigating circumstance, apply it first
before computing the penalty, you lower reclusion
perpetua by 1 degree. It will now become reclusion
temporal. Now that it is reclusion temporal, it is now a
divisible penalty, you can now apply Art. 64 and
consider the rules provided for.
*So even if a single indivisible penalty, if in the
commission thereof, there is a privilege mitigating
circumstance, the said privilege mitigating
circumstance can be applied to a single indivisible
penalty.
NOTE: If there are several PMC’s lower the
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[maximum] penalty by 1 degree as many times as
there are PMCs. Afterwards, if there 2 OMCs
remaining, lower the penalty again by 1 degree, and
if there still remains an OMC, the penalty shall be
imposed in the minimum period.
Violation of Special Penal Law
ISL law - Not be less that the minimum and shall
not exceed maximum sentence prescribed by law.
Ex: Anti-Carnapping law. A person carnapped a
vehicle. In carnapping he used violence. Section
14 of the law, if committed with violence 17 years
and 4 months to 13 years. As is or 18 to 25 years
as long as be less that the minimum and shall not
exceed maximum sentence prescribed by law.
Q: The crime committed is illegal fishing with the
use of explosives. The penalty prescribed by law is
20 years to life imprisonment. What penalty shall
be imposed by the court?
A: The law says if it is a violation of special penal
law and the said special penal law does not use the
enumeration of penalties in the RPC, the
maximum term of the sentence shall not exceed
the maximum penalty prescribed by law and the
minimum term of sentence shall not be less than
the minimum penalty prescribed by law.
This is a decided case. The accused was caught
because of illegal fishing. The penalty imposed by
law is 20 years to life imprisonment. The judge
imposed him the penalty of straight 30 years. Is the
judge correct?
A: The Supreme Court said NO. Since the penalty
prescribed by law is 20 years to life imprisonment,
it means that the penalty to be imposed upon the
convict must be an indeterminate sentence. SC said
the penalty must be 20 years (minimum term) to 25
years (maximum term).
Q: Let us say the crime committed is carnapping
with use of force and violence. So the penalty
prescribed by law is 17 years and 4 months to 30
years. If you were the judge convicting the accused,
what penalty shall be imposed?
A: Any penalty provided that it shall note exceed
30 years and it will not be less than 17 years and 4
months. Because the law says the maximum term
of sentence in case of violation of special penal law
shall not exceed the maximum term of penalty
prescribed by law and shall not be less than the
minimum penalty prescribed by law.
Other examples [15 March 2017]:
E.g. Highjacking: Penalty is 12y-20y imprisonment.
Maximum: not more than 20 years
Min: not less than 12 years.
This is dependent on the sound discretion of the
court.
Violation of RPC Art 64 and act 4103 of ISL are
related.
A abducted B with lewd design. His intention was
rape. But before he raped B he was arrested.
Crime is forcible abduction. Penalty is reclusion
temporal. No mitigating and aggravating
circumstance.
Maximum term will be reclusion temporal in
medium period.
Minimum term - 1 degree lower without
attendant circumstance. Prision mayor. In the
range of prision mayor because minimum term is
in the sound discretion of the court.
What if there is voluntary surrender? This is an
ordinary mitigating circumstance.
Maximum term will be reclusion temporal in
minimum period.
Minimum term: 1 degree lower without attendant
circumstance. Prision mayor. In the range of
prision mayor because minimum term is in the
sound discretion of the court.
What if there is night time?
Maximum term will be reclusion temporal in
maximum period.
Minimum term - 1 degree lower without
attendant circumstance: within the range of
Prision mayor. The [indeterminate sentence] is
temporal in maximum period and within the
range of prision mayor because minimum term is
in the sound discretion of the court.
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If voluntary surrender and nighttime maximum
term shall be in the medium period because under
Article 64 you should offset the circumstances.
If in addition to this there is abuse of superior
circumstance, there is one aggravating
circumstance remaining. Maximum term will be
reclusion temporal in maximum period.
Fifth rule under Article 64. Voluntary surrender
with passion and obfuscation. Lower penalty with
one degree. It will now be prision mayor. Medium
period because no aggravating circumstance.
Max term is prision mayor in medium.
Min. term is prision correccional within [its range].
[The maximum penalty cannot be increased to
one degree higher despite the presence of many
ACs. But if there are many MCs, the penalty is
lowered (“lower ng lower”)].
A raped B. B voluntarily surrendered and with
passion and obfuscation. Punished with reclusion
perpetua. One degree lower?
No. If indivisible penalty apply under Article 63, if
penalty prescribe by law is a single invisible
penalty you shall impose it regardless of any
aggravating or mitigating circumstance.
Let us add facts. If B is a minor. Minority is a
privilege mitigating circumstance. You will apply
it, it takes preference.
Max term: reclusion temporal. Two mitigating
therefore lower it by one degree. So now prision
mayor, in medium period.
Min term: One degree lower, [thus it will be within
the range of] Prision correccional.
What if crime committed is frustrated homicide.
There is voluntary surrender and immediate
vindication.
[Penalty for homicide is] Reclusion temporal.
Frustrated will be one degree lower: Prision
Mayor. Two mitigating. Lower it one degree more.
Max term of sentence: Prision correctional in its
medium period.
Mimimum term of sentence: [within the range of]
Arresto mayor.
Add facts again. He is minor committing without
discernment.
Frustrated will be one degree lower: Prision
Mayor. One degree lower because privilege
mitigating circumstance: Prision correctional.
Apply now Article 64. You have two mitigating,
one degree lower: Arresto mayor.
Thus, the max term of sentence is Arresto mayor
medium period.
Min term of sentence: You cannot go one degree
lower because you cannot give him indeterminate
sentence. He is disqualified.
Those whose maximum term of sentence does not
exceed one year. Give him a straight penalty.
Arresto mayor medium period.
OTHER EXAMPLES [15 March 2017]:
The crime committed is HOMICIDE. The
penalty for homicide is RECLUSION
TEMPORAL. Under Art 64, the law provides if
there are no mitigating, no aggravating circumstance, the
maximum term of sentence shall be the penalty
prescribed by law taking into consideration
mitigating and aggravating circumstances as
provided for under the rules in Art 64.
Maximum term: Reclusion temporal in its medium
period
Minimum term: Prision Mayor. To get the minimum
term of sentence, you lower it by one degree. So it
becomes prision mayor.
Section 1 of ISL provides, the range of the
minimum penalty is dependent on the sound
discretion of the judge or court. So whether
prison mayor will be minimum, medium or
maximum, will depend on the sound discretion of
the judge.
Since the maximum is medium, let us make this
also medium period. This is the minimum term of
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the sentence.
Q: Let us say that in the commission of
HOMICIDE.
1 mitigating circumstance with no aggravating
circumstance:
Maximum term: Reclusion Temporal in its minimum
period. [Art 64: 1 MC, no AC: min period]
Minimum term: Prision Mayor. As to the range, it is
dependent on the sound discretion of the court.
*There is 1 mitigating circumstance of sufficient
provocation, so 1 mitigating circumstance with no
aggravating circumstance. Art 64 says the
maximum penalty shall be in its minimum period.
So this will be reclusion temporal in its minimum
period. That is the maximum term of sentence.
Again, to get the minimum term of sentence, lower
it by 1 degree, prision mayor. As to the range, it is
dependent on the sound discretion of the court.
That is the minimum term of sentence.
No mitigating but with 1 aggravating
circumstance:
Maximum term: Reclusion Temporal in its maximum
period. [Art. 64: 1 AC, no MC: max period]
Minimum term: Prision Mayor. Range depends on
the sound discretion of the court.
*In the commission of the crime let us say, no
mitigating but with 1 aggravating circumstance of
nighttime. Art 64 says, the penalty shall be in its
maximum period. So we have here, reclusion
temporal, maximum period. Lower it by 1 degree,
prision mayor. Range depends on the sound
discretion of the court. That is the minimum term
of sentence.
Both mitigating and aggravating
circumstances:
Maximum term: Reclusion Temporal in its
medium period. [Art. 64: if AC and MC are
present: offset. If any of them remain, apply proper
rule above].
Minimum term: Prision mayor. The range depends
on the sound discretion of the court.
*The commission of the crime of homicide was
attended by both mitigating and aggravating
circumstances. There is one mitigating
circumstance of voluntary surrender and one
aggravating circumstance of nighttime. Offset the
two, no more aggravating, no more mitigating,
therefore, reclusion temporal in its medium period.
This is the maximum term of the sentence. Again
to get the minimum term of sentence, you lower it
by one degree, prision mayor, the range depends on
the sound discretion of the court. That is the
minimum term of the sentence.
2 mitigating circumstances with no
aggravating circumstances:
Art. 64(5): lower the penalty by 1 degree.
Maximum term: Prision Mayor in its medium period
[medium because, after considering the 2 MCs, you
lowered the penalty by 1 degree; no MC will be left
to be considered; thus the penalty shall be in the
medium period].
Minimum term: Prision Correccional. The range
depends on the sound discretion of the court.
*In the commission of the crime of homicide, it is
attended by 2 mitigating circumstances with no
aggravating circumstances. Two mitigating
circumstance of sufficient provocation and then
we have voluntary surrender. No aggravating
circumstance.
Art 64 provides if there are 2 or more
mitigating with no aggravating circumstance,
lower the penalty by 1 degree in its proper
period. Therefore, by reclusion temporal, you lower it
by 1 degree, it will become prision mayor. We have
already considered these, so prision mayor in its
medium period – this is the maximum term of the
sentence. To get the minimum term of sentence,
lower it by 1 degree, it will become prision
correccional. The range depends on the sound
discretion of the court/judge.
If there are 3 MC’s, the law already provides that 2
MC’s are needed to lower the penalty by 1 degree.
1 MC remains-then, you impose the minimum
period of the penalty. This will be the maximum.
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What if there are 4MCs, no AC? You cannot lower
the penalty by 2 degrees. Just by 1 degree. After
lowering, there will be 2MCs. The result will be that
the max penalty will be imposed in the min period.
In order that the penalty will be lowered by 1
degree, it is necessary that totally, there is no
aggravating circumstance.
Even if there are many MCs, for as long as
there is 1 AC, you will not lower the penalty by
degrees, it is only by periods.
If there is a PMC, the penalty can be lowered
by 1 degree despite the fact that the penalty is
single and indivisible.
Eg: Rape (reclusion perpetua) but the offender is a
minor: PMC=lower it to reclusion temporal. In its
maximum period, because the original penalty is
only lowered by one degree next lower.
Note that the max penalty now is divisible. Now,
apply Art. 64. The min will be prison mayor.
PROBATION LAW as Amended
PROBATION- disposition by which a convict after
conviction and sentence is released subject to the
conditions imposed by the court under the
supervision of a probation officer.
OBJECTIVES:
1. to promote the correction and rehabilitation
of the offender because he is placed under a
personalized treatment
2. to provide an opportunity for the reformation
of penitent offender
3. to prevent further commission of crimes
because the offender is placed under an
individualized treatment
4. to decongest cases
5. to save the Government from spending much-
needed funds when the offender will be placed
behind bars
IS PROBATION A RIGHT OR A PRIVILEGE?
Privilege. Thus, even if a convict is not among
those disqualified of probation, the judge can still
deny the application. This denial is not appealable.
The grant or denial of application is
dependent solely on the sound discretion of
the judge.
GRANT OF PROBATION (Sec. 4, As
amended by RA 10707):
Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a
defendant for a probationable penalty and upon
application by said defendant within the period for
perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for
such period and upon such terms and conditions as it
may deem best. No application for probation shall
be entertained or granted if the defendant has
perfected the appeal from the judgment of
conviction: Provided, That when a judgment of
conviction imposing a non-probationable penalty
is appealed or reviewed, and such judgment is
modified through the imposition of a
probationable penalty, the defendant shall be
allowed to apply for probation based on the
modified decision before such decision becomes
final. The application for probation based on the
modified decision shall be filed in the trial court
where the judgment of conviction imposing a non-
probationable penalty was rendered, or in the trial
court where such case has since been re-raffled. In a
case involving several defendants where some have
taken further appeal, the other defendants may apply
for probation by submitting a written application and
attaching thereto a certified true copy of the judgment
of conviction.
The trial court shall, upon receipt of the
application filed, suspend the execution of the
sentence imposed in the judgment.
This notwithstanding, the accused shall
lose the benefit of probation should he seek a
review of the modified decision which already
imposes a probationable penalty.
Probation may be granted whether the
sentence imposes a term of imprisonment or a fine
only. The filing of the application shall be deemed
a waiver of the right to appeal.
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An order granting or denying probation shall
not be appealable.
DISQUALIFIED TO AVAIL OF PROBATION (Sec.
9, as amended by RA 10707, and other laws):
1. Those whose maximum term of imprisonment
is more than 6 years,
2. those who have been convicted of any crime
against national security,
3. Those who have previously been convicted by
final judgment of an offense punished by
imprisonment of more than six (6) months
and one (1) day and/or a fine of more than
one thousand pesos (P1,000.00)
4. those who have already availed the benefit of
probation
5. those who have perfected an appeal from
judgment of conviction [which imposes a
probationable penalty. If the conviction was
for a non-probationable penalty, and the
convict appeals, resulting to the modification
of judgment imposing a probationable
penalty, the convict may now apply for
probation. SEE RA 10707]
6. those convicted of an election offense under
the Omnibus Election Code
7. Those convicted of drug trafficking or drug
pushing,
8. Those who filed a malicious report that a
person is committing a violation of Anti-
money laundering law and was convicted
because of such malicious filing.
NOTE: Re: disqualification no. 1: “Those whose
maximum term of imprisonment is more than 6
years.”
Prosec: consider the actual penalty imposed by
the court, NOT THE TOTALITY. Such that, if there
are several penalties imposed, and some are more
than 6 years, and some are not more than 6 years,
the latter may be probationable. The convict may
separately apply for probation for the
probationable penalties, but the non-
probationable penalties must be served.
APPLICATION FOR PROBATION (See also Sec. 4
as amended by RA 10707):
Filed before the Trial Court which heard the case
within the period of perfecting an appeal or
within 15 days from promulgation of judgment.
No application for probation shall be entertained
when the offender has already perfected an
appeal. Likewise, the filing of an application for
probation shall be a waiver of the right to file an
appeal. [NOTE: See RA 10707]
Thus, appeal and probation are mutually
exclusive remedies. This is because the reason
behind appeal and the reason behind probation
are diametrically opposed. If a person appeals, it
means that he is questioning the decision of the
court. He is insisting on his innocence. On the
other hand, if a person applies for probation, it
means that he is accepting the judgment of the
court. He, however, does not want to serve his
sentence behind bars.
EXCEPTIONS TO RULE THAT APPEAL
PREVENTS PROBATION:
1. If the appeal is only for the purpose of
reducing the penalty to a probationable
penalty. That the only reason for appealing is
to question the high penalty imposed.
However, if in the said appeal, the offender
questions the merits of the case, he can no
longer apply for probation. [NOTE: this is in
Sec. 4, RA 10707]
Ex: Tarzan was charged with a violation of the
Forrest code. The penalty imposed is 8 years
maximum. Because of this, Tarzan filed an
appeal. He questioned the merits of the case
and likewise questioned the penalty imposed.
The Appellate Court affirmed the decision but
lowered the penalty to a maximum of 4 years.
Tarzan then went back to the trial court to
apply for probation, considering that the
penalty imposed by the Appellate Court is a
probationable one. The trial court denied the
application. Tarzan elevated the matter to the
Supreme Court via Certiorari contending that
one of the exceptions to the rule that appeal
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excludes probation is when the issue raised on
appeal is to question the high penalty
imposed. Is Tarzan correct?
SC: No, because the appeal first and foremost
questioned the merits of the case. The accused
questioned his culpability. That being so, he
can no longer avail for probation. If the sole
question on appeal pertains to the penalty, the
accused can still apply for probation before
the trial court.
2. Under the Juvenile Justice and Welfare Act,
if the offender is a minor he can file an
application for probation at any time even
if after appeal. It is only necessary that the
penalty imposed upon him is a probationable
penalty.
CONDITIONS IMPOSED UPON OFFENDER
UNDER PROBATION:
1. MANDATORY
a. Appear before the probationary officer
within 72 hours from the receipt of the
order.
b. Report once a month
2. DISCRETIONARY/ SPECIAL
Dependent upon the sound discretion of the court.
Usually involves engaging in a vocation, not
drinking alcohol, not going to house of ill-repute,
and planting of trees.
The only limitation on the discretionary
conditions is that they must not be so restrictive
to the rights of the accused such that they will no
longer be in consonance with his freedom.
EX: condition pertained to the prohibition of the
offender to teach during the period of probation.
This is a restrictive condition. It deprives the
offender his means of livelihood.
PERIOD OF PROBATION (Sec. 14):
Sentence Period of probation
Imprisonment of not Not exceed 2 years
more than 1 year
In all other cases [of Not exceed 6 years
imprisonment]
Fine only and Not less than nor be
subsidiary more than 2x than the
imprisonment in case total number of days
of insolvency of subsidiary
imprisonment, taking
into account the
highest minimum
wage rate at the time
of the rendition of the
judgment.
LEGAL EFFECT OF PROBATION: Its only legal
effect is to suspend the execution of the sentence.
It has nothing to do, and has no effect, on civil
liability.
In the case of Moreno v. COMELEC, the SC said
that probation is not equivalent to service of
sentence. If the convict was granted probation, it
does not mean that he already serve his sentence
because the effect of probation is to suspend the
execution of the sentence.
Ex: Lindsay Lohan, after conviction, applied for
probation and was granted the same. Thereafter,
she filed an appeal questioning the civil indemnity
imposed upon her. The judge denied the appeal on
the ground that Lindsay already applied for
probation. Therefore, the appeal cannot be
granted. Is the judge correct?
No, because the only effect of probation is to
suspend the execution of the sentence. It has
nothing to do with the civil aspect of the case.
Insofar as the civil aspect is concerned, the convict
can still appeal it.
Ex. D, under the probation for two years, was
imposed the condition that he could not change
his residence. For two years, he complied with
this condition. After the lapse of two years, D now
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changed his residence. The probation officer
learned about this and filed for a Motion to
Revoke the probation. D contended that the
period of probation (2 years) has already been
completed, so he is already allowed to change
residence. The trial court granted the revocation.
Is the trial court correct?
Yes, the expiration of the period of probation does
not ipso facto mean the termination of probation.
Probation is only terminated upon the issuance of
the court of an order of final discharge of
probation.
This happens when after the lapse of the period of
probation, the probation officer will file a Motion
before the court with a recommendation stating
that the convict has complied with the conditions
imposed and therefore, he should be discharged.
The court will then issue a final discharge of
probation. Only then will probation be
terminated.
EFFECT OF AN ORDER OF FINAL DISCHARGE
OF PROBATION (Sec. 16, as amended):
1. Restore the civil rights lost or suspended by
reason of conviction, including the penalty of
fine, and
2. Totally extinguish the criminal liability for the
crime he committed (RA 10707).
But, the offender should still pay the civil
indemnity to the offended party.
Other examples:
The RTC rendered a decision with a non-
probationable penalty. CA affirmed the decision
but modified the penalty which is already
probationable. The convict must be allowed to go
back to the court of origin and he can avail the
benefits of probation.
Let’s say in the appellate court, the AC rendered a
decision with a probationable penalty. However,
instead of applying for probation, he appealed
before the SC and the SC affirmed the decision in
toto. Can he still go back to the trial court and apply
for probation?
A: No. The moment the appellate court rendered a
probationable penalty, he must immediately go
back to the trial court and apply for probation. He
is now deprived of his right to apply for probation.
So what we have now is a law enforcing the
decision in Colinares.
IMPOSITION OF FINES (see also page 176)
Art. 66. Imposition of fines. — In imposing fines
the courts may fix any amount within the limits
established by law; in fixing the amount in each
case attention shall be given, not only to the
mitigating and aggravating circumstances, but
more particularly to the wealth or means of the
culprit.
1. Facts such as necessary such as aggravating
and mitigating circumstance.
2. Wealth and means of the offender
A Fine is a pecuniary penalty imposed by court in
case of judgement of conviction.
Scale of penalty Amount of fine
Afflictive Exceeds P6,000
Correctional Not exceed P6,000 but
not less than P 200
Light Less than P 200
If the offender is an accomplice, accessory or
frustrated? Answer is Art. 75.
Art. 75. Increasing or reducing the penalty of fine
by one or more degrees. — Whenever it may be
necessary to increase or reduce the penalty of fine
by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-
fourth of the maximum amount prescribed by
law, without however, changing the minimum.
If A prevented the meetings of congress by means
of fraud, the penalty is [prision correctional or] a
fine ranging from P 200 - P2000. If he was an
accomplice, one degree lower. 1/4th of the
maximum: P500. Thus, his maximum penalty is
P1500.
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Q: What if the crime committed by the offender is
punishable by fine. So let us say, impossible crime
and the penalty prescribed by law is P200-P500.
Let us say that the offender is mere accomplice or
an accessory. As provided for under Arts. 50-57, if
the offender is an accomplice, you go 1 degree
lower. If the offender is an accessory, you go 2
degrees lower. How could you lower the fine?
A: Under Art. 75, you take ¼ of the maximum
amount of fine and deduct it therefrom. If you
have to lower it, again, take ¼ of the maximum
amount of fine and deduct it therefrom. So the
maximum amount of fine is P500. ¼ of P500 is
125. Deduct this. This will now be P375.
If the offender is an accomplice, the penalty
prescribed by law would be P200-P375.
Let us say the offender is mere accessory, deduct
¼ of the maximum fine, so this will become now,
P200-P250.
SUCCESSIVE SERVICE OF SENTENCE
and the THREE-FOLD RULE
Art. 70. Successive service of sentences. — When
the culprit has to serve two or more penalties, he
shall serve them simultaneously if the nature of
the penalties will so permit; otherwise, the
following rules shall be observed:
In the imposition of the penalties, the order
of their respective severity shall be followed so
that they may be executed successively or as
nearly as may be possible, should a pardon have
been granted as to the penalty or penalties first
imposed, or should they have been served out.
For the purpose of applying the provisions
of the next preceding paragraph the respective
severity of the penalties shall be determined in
accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification
10. Temporal absolute disqualification.
11. Suspension from public office, the right to vote
and be voted for, the right to follow a
profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule
next preceding, the maximum duration of the
convict's sentence shall not be more than three-
fold the length of time corresponding to the most
severe of the penalties imposed upon him. No
other penalty to which he may be liable shall be
inflicted after the sum total of those imposed
equals the same maximum period.
Such maximum period shall in no case
exceed forty years.
In applying the provisions of this rule the
duration of perpetual penalties shall be computed
at thirty years.
What if the offender is given multiple
sentence?
The father raped the daughter 5 times. 5 counts of
rape. The said father was convicted on all counts
of rape. The penalty for 1 count of rape is reclusion
perpetua. What penalty shall the court impose on
him?
A: 5 reclusion perpetua.
If the convict is given multiple sentence (each
reclusion perpetua), how shall the convict serve the
said sentence?
Under Art. 70, the convict shall serve a sentence,
as rule, simultaneously. If the nature of the
penalty allows simultaneous service of sentence.
And what penalties allows simultaneous sentence?
 Improvement and fine
 Imprisonment and suspension
 Imprisonment and public censure
What penalties cannot be served at the same time?
All penalties of imprisonment
If the penalties cannot be served at the same time,
how shall the convict serve the penalties?
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He shall serve them successively as provided for
under Art. 70.
THREE-FOLD RULE – limitation on the
successive term of sentence. Art. 70 provides that
the maximum duration of sentence shall not
exceed three times the length of the most severe
penalty and that in no case shall exceed 40 years.
Here we have reclusion perpetua. The duration
for reclusion perpetua under Art. 27 is 20 years and 1
day to 40 years. The maximum penalty is 40 years.
So we have here, 40 years, 40 years, 40 years, 40
years and 40 years (because 5 reclusion perpetua),
these will be 200 years. That cannot be served,
right?! So you apply the three fold rule. The
maximum duration of sentence shall not exceed
three times the length of the most severe penalty.
So 40 years times 3 = 120 years. Still it cannot be
served.
Art. 70 says, provided it shall not exceed 40
years. So having been convicted of 5 counts of
rape and imposed of the penalty of reclusion perpetua,
he shall only serve 40 years imprisonment in
accordance to the three-fold rule. That is the
limitation provided for in Art. 70.
Q: So the judge said, the convict shall serve only 40
years imprisonment and civil liability of P50,000. Is
the judge right?
A: The judge is wrong. Because the 40 years
imprisonment as provided for in the three-fold rule
is not for the judge to impose. The 40 years
imprisonment in accordance to three-fold rule
refers to service of sentence, not to the imposition
of penalties. It is for the Director of Prisons to
apply the three-fold rule and compute, and not
for the judge to impose.
Therefore, for having been convicted of 5 counts
of rape, the judge shall impose upon him a penalty
of reclusion perpetua for each count of rape, the
penalty prescribed by law for the crime of rape.
Likewise, the judge shall impose upon the convict
the civil liability of P50, 000 for each count of rape.
Each count of rape is a violation of the person of
the victim therefore, civil indemnity is separate and
distinct from the criminal offense of rape. The civil
indemnity shall be the number of times the victim
was raped.
Conclusion: So, a penalty of reclusion perpetua for 5
counts of rape and a P50,000 civil indemnity for
each count of rape shall be imposed. The 40 years
is not for the judge to impose because the 40 years
refers to the service of sentence and not to the
imposition of the penalties. Courts are mandated
to impose the penalties as prescribed by law.
[Old] Examples:
5 counts of rape. Each is 40 years. He cannot serve
120 years. The Director of Prisons shall compute,
not the judge. Not to exceed 40 years. Also, 5 civil
liabilities of P50,000 each; each count is a violation
of the person of the victim.
20 counts of estafa - 6 months and 200 fine.
Without applying three fold rule, 10 years and
4000 as fine. Applying it only 18 months. But still
has to pay 4,000 as fine [see similar example in
Art. 39.]
In answering questions regarding penalties,
you need not state the equivalent duration. It
suffices that you state the designation: prision
mayor, prision correcional, etc.
Art. 71. Graduated scales. — In the case in which
the law prescribed a penalty lower or higher by
one or more degrees than another given penalty,
the rules prescribed in Article 61 shall be
observed in graduating such penalty.
The lower or higher penalty shall be taken
from the graduated scale in which is comprised
the given penalty.
The courts, in applying such lower or
higher penalty, shall observe the following
graduated scales:
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SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
1. Suspension from public office, the right to vote
and be voted for, the right to follow a
profession or calling,
3. Public censure,
4. Fine.
What is the importance of 1 day in the duration of
the period? For instance, in prision mayor (6 yrs
and 1 DAY -12 years)?
The 1 day separates the different degrees of the
penalty. It also separates a divisible penalty from
an indivisible penalty. It also determines whether
subsidiary imprisonment may be imposed on the
offender.
Art. 72. Preference in the payment of the civil
liabilities. — The civil liabilities of a person found
guilty of two or more offenses shall be satisfied by
following the chronological order of the dates of
the judgments rendered against him, beginning
with the first in order of time.
The penalties shall be satisfied according to the
scale of Art 70.
Art. 73. Presumption in regard to the imposition of
accessory penalties. — Whenever the courts shall
impose a penalty which, by provision of law,
carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43 and 44 of this
Code, it must be understood that the accessory
penalties are also imposed upon the convict.
Subsidiary penalties are deemed imposed.
However, the subsidiary imprisonment must
be expressly stated in the decision.
The rule that the principal penalty imposed
carries with it the accessory penalties does not
mean that the accused would serve subsidiary
imprisonment in case he is not able to pay the
pecuniary liabilities imposed in the judgment.
Subsidiary imprisonment must be expressly
ordered.
Art. 74. Penalty higher than reclusion perpetua in
certain cases. — In cases in which the law
prescribes a penalty higher than another given
penalty, without specially designating the name of
the former, if such higher penalty should be that
of death, the same penalty and the accessory
penalties of Article 40, shall be considered as the
next higher penalty.
If the decision or law says higher than RP or 2
degrees than RT, then the penalty imposed is RP
or RT as the case may be. Death must be
designated by name. However, for the other
penalties, this does not apply.
Example: the penalty for crime X is 2 degrees
lower than RP. The penalty imposed is prision
mayor.
Art. 75. Increasing or reducing the penalty of fine
by one or more degrees. — Whenever it may be
necessary to increase or reduce the penalty of fine
by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-
fourth of the maximum amount prescribed by
law, without however, changing the minimum.
The same rules shall be observed with
regard of fines that do not consist of a fixed
amount, but are made proportional.
Art. 76. Legal period of duration of divisible
penalties. — The legal period of duration of
divisible penalties shall be considered as divided
into three parts, forming three periods, the
minimum, the medium, and the maximum in the
manner shown in the following tab:
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Art. 77. When the penalty is a complex one
composed of three distinct penalties. — In cases in
which the law prescribes a penalty composed of
three distinct penalties, each one shall form a
period; the lightest of them shall be the minimum
the next the medium, and the most severe the
maximum period.
Whenever the penalty prescribed does not
have one of the forms specially provided for in this
Code, the periods shall be distributed, applying by
analogy the prescribed rules.
EXECUTION AND SERVICE OF PENALTIES
Art. 78. When and how a penalty is to be executed.
— No penalty shall be executed except by virtue
of a final judgment.
A penalty shall not be executed in any
other form than that prescribed by law, nor with
any other circumstances or incidents than those
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.
The regulations shall make provision for
the separation of the sexes in different institutions,
or at least into different departments and also for
the correction and reform of the convicts.
Art. 79. Suspension of the execution and service of
the penalties in case of insanity. — When a convict
shall become insane or an imbecile after final
sentence has been pronounced, the execution of
said sentence shall be suspended only with regard
to the personal penalty, the provisions of the
second paragraph of circumstance Number 1 of
Article 12 being observed in the corresponding
cases.
If at any time the convict shall recover his
reason, his sentence shall be executed, unless the
penalty shall have prescribed in accordance with
the provisions of this Code.
The respective provisions of this section
shall also be observed if the insanity or imbecility
occurs while the convict is serving his sentence.
INSANITY AT THE TIME OF TRIAL OR AFTER
THE CONVICTION OF THE ACCUSED BY FINAL
JUDGMENT
There will be a suspension of sentence. The
accused cannot be made to suffer the sentence.
However, the moment he regains his sanity he is
required to serve his sentence. Provided, that the
period of penalty has not yet prescribed.
Art 80 (as amended by PD 603: Child and
Youth Welfare Code)
Note: refer to R.A. 9344 (Minority)
EXECUTION OF PRINCIPAL
PENALTIES
[NOTE: The following codal provisions relating to
death penalty were removed in these notes:
Art. 81. When and how the death penalty is to be
executed,
Art. 82. Notification and execution of the sentence
and assistance to the culprit,
Art. 83. Suspension of the execution of the death
sentence,
Art. 84. Place of execution and persons who may
witness the same,
Art. 85. Provisions relative to the corpse of the
person executed and its burial.
Reason: RA 9346 prohibits death penalty.
Please consult the codal (Pages 48-50) for these
Articles]
Under RA 9346, the prohibition pertains only to
the imposition of death penalty. But for heinous
crimes, the penalty shall still be death. Only that it
cannot be imposed.
Art. 86. Reclusion perpetua, reclusion temporal,
prision mayor, prision correccional and arresto
mayor. — The penalties of reclusion perpetua,
reclusion temporal, prision mayor, prision
correccional and arresto mayor, shall be executed
and served in the places and penal establishments
provided by the Administrative Code in force or
which may be provided by law in the future.
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Art. 87. Destierro. — Any person sentenced to
destierro shall not be permitted to enter the place
or places designated in the sentence, nor within
the radius therein specified, which shall be not
more than 250 and not less than 25 kilometers
from the place designated.
Destierro is considered as a principal,
correctional and divisible penalty. Therefore,
jurisdiction over crimes punishable by destierro
lies with the MTC.
Destierro shall be imposed in the following
cases:
1. Death or serious physical injuries is caused or
are inflicted under exceptional circumstance
(Art. 247),
2. Person fails to give bond for good behavior in
grave and light threats
3. Concubine's penalty for the crime of
concubinage,
4. When after reducing the penalty by 1 or more
degrees, destierro is the proper penalty.
Execution of Destierro
a) Convict shall not be permitted to enter the
place designated in the sentence nor within
the radius specified: not more than 250KM
and not less than 25KM from the place
designated.
b) If the convict enters the prohibited area, he
commits evasion of sentence.
Art. 88. Arresto menor. — The penalty of arresto
menor shall be served in the municipal jail, or in
the house of the defendant himself under the
surveillance of an officer of the law, when the
court so provides in its decision, taking into
consideration the health of the offender and other
reasons which may seem satisfactory to it.
EXTINGUISHMENT OF CRIMINAL LIABILITY
Art. 89. How criminal liability is totally
extinguished. — Criminal liability is totally
extinguished:
1) By the death of the convict, as to the personal
penalties and as to pecuniary penalties,
liability therefor is extinguished only when the
death of the offender occurs before final
judgment.
2) By service of the sentence
3) By amnesty, which completely extinguishes
the penalty and all its effects
4) By absolute pardon
5) By prescription of the crime
6) By prescription of the penalty
7) By the marriage of the offended woman, as
provided in Art 344 of this Code
MODES FOR EXTINGUISHING CRIMINAL
LIABILITY
1) Death
2) Service of Sentence
3) Amnesty
4) Absolute pardon
5) Prescription of crime
6) Prescription of penalty
7) Valid marriage of the offended with the
offender.
DEATH of the accused extinguishes criminal
liability at any stage of the proceedings. The
moment the offender dies, there is nobody to serve
the personal penalty.
Death extinguishes civil liability (arising from bad
based solely on the crime) if the offender dies
before conviction by final judgment. If the
offender dies after conviction by final judgment,
his civil liability will survive. The private
complainant can go after the executor or
administrator of the estate of the said offender. It
survives because judgment has already become
final and executory. Guilt has already been proven
beyond reasonable doubt.
Even if the offender dies before conviction by final
judgment, his civil liability survives if the said civil
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liability did not arise from or was not based solely
from the crime committed but based from other
sources of obligation such as law, contract, quasi-
contracts or quasi-delicts.
People v. Bayot, G.R No. 200030, 18 April 2012
Facts: Accused-appellant Nelson Bayot was
charged with rape in the RTC of Kabanlakan City,
Negros Occidental. He was convicted by the RTC,
and the conviction was affirmed by the CA in 2006.
However, Bayot died in the Bilibid in 2004.
Nonetheless, the PAO still appealed on his behalf
to the SC.
Issue: What is the effect of Bayot’s death on his
appeal.
Ruling:
Bayot’s death on 4 December 2004, during the
pendency of his appeal before the Court of
Appeals, extinguished not only his criminal liability
for the crime of rape committed against AAA, but
also his civil liability solely arising from or based on
said crime.
Article 89(1) of the Revised Penal Code, as
amended, specifically provides the effect of death
of the accused on his criminal, as well as civil,
liability.
Applying the foregoing provision, this Court, in
People v. Bayotas, which was cited in a catena of
cases, had laid down the following guidelines:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal
liability as well as the civil liability based
solely thereon. As opined by Justice Regalado,
in this regard, “the death of the accused prior
to final judgment terminates his criminal
liability and only the civil liability directly arising
from and based solely on the offense
3
Art. 1155. The prescription of actions is interrupted when
they are filed before the court, when there is a written
extrajudicial demand by the creditors, and when there is
committed, i.e., civil liability ex delicto in senso
strictiore.”
2. Corollarily, the claim for civil liability survives
notwithstanding the death of [the] accused, if
the same may also be predicated on a source of
obligation other than delict. Article 1157 of the
Civil Code enumerates these other sources of
obligation from which the civil liability may
arise as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) x x x x x x x x x
e) Quasi-delicts
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery
therefor may be pursued but only by way of
filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate
civil action may be enforced either against the
executor/administrator or the estate of the
accused, depending on the source of obligation
upon which the same is based as explained
above.
4. Finally, the private offended party need not fear
a forfeiture of his right to file this separate civil
action by prescription, in cases where during
the prosecution of the criminal action and prior
to its extinction, the private-offended party
instituted together therewith the civil action. In
such case, the statute of limitations on the civil
liability is deemed interrupted during the
pendency of the criminal case, conformably
with [the] provisions of Article 1155 of the
Civil Code3 that should thereby avoid any
apprehension on a possible privation of right
by prescription.
any written acknowledgment of the debt by the
debtor. (1973a)
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From the foregoing, it is clear that the death of
Bayot pending appeal of his conviction
extinguishes his criminal liability, as well as the civil
liability ex delicto. The rationale, therefore, is that the
criminal action is extinguished inasmuch as there is
no longer a defendant to stand as the accused, the
civil action instituted therein for recovery of civil
liability ex delicto is ipso facto extinguished, grounded
as it is on the criminal case [end].
People v. Amistoso, G.R. No. 201447, 28
August 2013
Facts: Accused-Appellant Anastacio Amistoso
was charged with statutory rape of his 12-year old
daughter in the RTC of Masbate City. He was
convicted of qualified rape. The CA affirmed the
conviction in 2011, and the SC did the same in
2013. However, Amistoso died in the Bilibid on
December 2012. Yet, unaware of Amistoso’s
demise, the PAO filed a Motion for
Reconsideration before the SC.
Ruling: SC conviction SET ASIDE, case
DISMISSED.
It is clear that the death of the accused pending
appeal of his conviction extinguishes his criminal
liability, as well as his civil liability ex delicto. Since
the criminal action is extinguished inasmuch as
there is no longer a defendant to stand as the
accused, the civil action instituted therein for
recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal case.
Undeniably, Amistoso’s death on December 11,
2012 preceded the promulgation by the Court of
its Decision on January 9, 2013. When Amistoso
died, his appeal before the Court was still pending
and unresolved. The Court ruled upon Amistoso’s
appeal only because it was not immediately
informed of his death.
Amistoso’s death on December 11, 2012 renders
the Court’s Decision dated January 9, 2013, even
though affirming Amistoso’s conviction, irrelevant
and ineffectual. Moreover, said Decision has not
yet become final, and the Court still has the
jurisdiction to set it aside [end].
People v. Consorte, G.R. No. 194068, 26
November 2014
Facts: Benjie Consorte was convicted for the
murder of Elizabeth Palmar, and the conviction
was affirmed by the SC. Consorte filed a MR, but
died in the New Bilibid Prison afterwards.
Issue: What is the effect of Consorte’s death
pending his appeal with regard to his criminal and
civil liabilities?
Ruling: His civil and criminal liability are
extinguished.
Death of the accused pending appeal of his
conviction extinguishes his criminal liability as well
as the civil liability based solely thereon. As opined
by Justice Regalado, in this regard, "the death of
the accused prior to final judgment terminates his
criminal liability and only the civil liability directly
arising from and based solely on the offense
committed, i.e., civil liability ex delicto in senso
strictiore.
In the case at bar, accused-appellant died before
final judgment, as in fact, his motion for
reconsideration is still pending resolution by the
Court. As such, it therefore becomes necessary for
us to declare his criminal liability as well as his civil
liability ex delicto to have been extinguished by his
death prior to final judgment [end].
SERVICE OF SENTENCE is the satisfaction of the
penalty imposed. If it is imprisonment, it means
that he has served his sentence behind bars. If it is
fine, it means that he has paid the amount.
AMNESTY is an act of grace from the power
entrusted with the execution of the law which
does not only exempt the offender from the
service of penalty for the crime committed, but
also obliterates the effects of the crime. It does not
only suspend the execution of the sentence. It also
obliterates the effects of the crime.
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ABSOLUTE PARDON- act of grace received from
the power entrusted with the execution of the law
which exempts the offender from the penalty
prescribed by law for the crime committed.
Both amnesty and pardon are acts of grace by the
Chief Executive, and they both exempt the accused
from the penalty.
Oral defamation & slander by 6 months
deed
Light offenses 2 months
When the penalty fixed by law is a compound one,
the highest penalty shall be made the basis of the
application of the rules contained in the first,
second and third paragraphs of this article. (As
amended by RA 4661, approved June 19,1966.)

Pardon Amnesty Art. 91. Computation of prescription of offenses. —

Merely suspends the Obliterates all effects Art. 91
execution of sentence, of crime as if no crime Commences to  [If crime known: from the
erases the penalty to was committed. run time of its commission.
be imposed.
 If unknown:] Day when
Granted only after Granted at any stage of
crime is discovered by:
conviction by final proceedings, before
o Offended party,
judgment. during or after final
o The authorities, or
judgment.
their agents
Private act of Public act of President.
President. As such, the Granted with the Interrupted by Filing of the complaint or
person pardoned must concurrence of information
plead and prove it Congress. Courts take Commences to  When such proceedings
before the courts. No judicial notice of it. run again terminate without the
judicial notice of accused being convicted
pardon. or acquitted,
May be given to all Generally granted to a  Or are unjustifiably
kinds of offenders. class or group of stopped for any reason not
persons who have imputable to him.
committed political Term of When the offender is absent
offenses. prescription from the Philippine
EX: P- Erap; A- Senator Trillanes. shall not run Archipelago
Prosec G: In the exams, do not write “amnesty
looks backward while pardon looks forward”. NOTE: Situations which do not follow Art. 91
(GN 2016):
Art. 90. Prescription of crime. —
1. Continuing crimes-prescriptive period will start
Crimes punishable by… Prescriptive
to run only at the termination of the intended
period
result,
Death, reclusion perpetua or 20 years 2. Crimes against false testimony-prescriptive
reclusion temporal
period is reckoned from the day a final
Other afflictive penalties [prision 15 years
judgment is rendered and not at the time when
mayor?]
the false testimony is made,
Correctional penalties, except 10 years
3. Election offenses-
arresto mayor
a. If discovery of the offense is incidental to
Arresto mayor 5 years judicial proceedings, prescription begins
Libel or other similar offenses 1 year when such proceedings terminate; or

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b. From the date of the commission of the period will commence to run from the time the
offense. offended party, the authorities or their agents
discovered the crime.
Art. 92. When and how penalties prescribe. — The
The said running of the prescriptive period is
penalties imposed by final sentence prescribe as
interrupted upon the filing of the case before the
follows:
Final sentence Prescriptive office of the public prosecutor even if for the
periods purpose of preliminary investigation. So the
moment the private complainant files the
Death and reclusion perpetua 20 years
complaint with the public prosecutor, the running
Other afflictive penalties 15 years
of the prescriptive period is interrupted.
Correctional penalties, 10 years
except arresto mayor XPN: when the crime committed is involves
Arresto mayor 5 years the registration of title in real properties. It is
Light penalties 1 year the registration of the sale, conveyance or
mortgage of the real property which constitutes a
Art. 93. Computation of the prescription of notice to the whole world, which must be
penalties. — considered as the start of the commencement of
Art. 93 the prescriptive period. Even if the offended
Commences to Date when the convict should party, in reality, did not know that a crime has been
run evade the service of his committed, from the moment there has been
sentence. registration, by virtue of constructive notice, the
Interrupted if  Should give himself up, running of the prescriptive period has commenced.
the defendant  Be captured, In the case of People v. Pangilinan, the Supreme
 Should go to some foreign Court said whether it is a violation of a special
country which the Phil. penal law like the BP 22 or a violation of the RPC,
Government has no the filing of a complaint before the office of the
extradition treaty, or public prosecutor suspends or interrupts the
 Should commit another running of the prescriptive period. It remains
crime before the suspended until the case has been decided the
expiration of the period of accused being acquitted or convicted or the case
prescription. has been dismissed for any reason not imputable
to him.
PRESCRIPTION OF CRIME is the loss or forfeiture
of the right of the State to prosecute an offender Here the checks were issued, and the notice of
who has committed a violation of the law. dishonor was received by the maker in 1995. The
cases were filed before the prosecutors in 1997,
The accused need not file a motion; the moment and they filed the information in the MTC in 2000.
the crime prescribes the judge motu propio must The MTC and RTC ruled that the crime did not
dismiss the case. The court loses jurisdiction over prescribe. The CA held that the crime had
the case, as there is no crime to try. prescribed, and that the filing of the complaint
before the prosecutors did not suspend the
GR: The period of prescription of crime running of the prescriptive period.
commences to run from the time of the
commission of the crime, if it is known. If the time The CA cited the case of Zaldivia v. Reyes and ruled
of the commission of the crime is not known, the that the violation of BP 22 has already prescribed

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because according to the CA, in case of violation
of special penal laws, the running of the
prescriptive period is only interrupted upon the
filing of the case before the appropriate court
because the Supreme Court interpreted the word
“proceedings” as judicial proceedings in Zaldivia v.
Reyes.
The SC said that the interpretation of the CA is
erroneous. SC said it is now settled in
jurisprudence that whether it is a violation of a
special penal law or a violation of the RPC, the
filing of the complaint with the public prosecutor
interrupts the running of the prescriptive period.
In Zaldivia v. Reyes, what is involved is a
violation of a municipal ordinance. It is only in
case of violation of municipal ordinance
wherein the running of the prescriptive period
is interrupted upon the filing of the complaint
before the proper court. The filing of the
information in 1997 suspended the prescriptive
period and the same remains suspended; tus the
crime has not yet prescribed.
Ex: Husband and Wife are quarreling. In the
course of the quarrel, H killed W. H buried the wife
in the backyard. Unknown to H, neighbor saw the
incidents of killing and burial. This neighbor,
because of fear of H, remained silent. After 25
years from the commission of the crime, the
neighbor became old and sickly. He then told the
police what he witnessed 25 years ago. The police
then went to the backyard, dug the ground and
saw the bones of W. Can the State still prosecute
H for parricide?
- Yes, the crime has not yet prescribed. The
authorities and their agents only came to know
the crime 25 years from its commission. This is
the only time when the prescriptive period for the
crime shall commence to run. Also, the neighbor
who knew the commission of the crime is not the
person required by law to discover the crime in
order to start the running of the prescriptive
period. Therefore, the State can still file the case of
parricide.
The husband chopped the deceased body of
his wife and placed it in different parts of the
house. No one knew of the incident except one
of the children who saw the incident but he
preferred to keep silent about it. 25 years
thereafter, he divulged the said incident to the
authorities. Can the state still prosecute the
said offender?
Not anymore. Because the son witnessed the
commission of the crime. The son is an offended
party because he is an heir of the victim. The time
for the prescription of the crime has commenced
to run from the time he witnessed its commission
and has prescribed 20 years thereafter.
But what if it is the neighbor who witnessed
the crime?
Yes. The neighbor is not an offended party nor an
authority or an agent of the authorities. So even if
she learns the commission of the crime, the period
has not yet commenced to run.
Ex. Niki and Mariah were friends. Niki, before
going to Mindanao, left the titles of her properties
to Mariah for safekeeping. Mariah became
interested in one of the properties. While Niki was
in Mindanao, Mariah falsified a Deed of Absolute
Sale forging the signature of Niki, making it
appear that Niki sold the property to her. Mariah
then registered the Deed before the Registry of
Deeds. The title was thereafter transferred to the
name of Mariah. 20 years thereafter, Niki came
back to Manila and acquired the titles she left to
Mariah. Niki noticed that one title was missing.
She eventually discovered that the property
covered by such missing title was already
transferred to the name of Mariah. Can Niki file
case of falsification of public doc (punished by
Prision Mayor) against Mariah?
- No, because the crime has already prescribed. If
a document or transaction involves real
properties (sale, lease, attachment), the moment
the document is registered before the Registry of
Deeds, such registration constitutes constructive
notice. As such, the law presumes that the whole
world, including Niki, knows about the
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registration. The period of prescription
commences to run from that time. Since 20 years
have already lapsed in this case, the crime has
already prescribed. This concerns only criminal
liability. But Niki can still file a civil case for
damages or any civil action to recover the
property.
Ex: Gerald and Kim were spouses. Gerald, as a
medical representative, was assigned in Visayas
leaving his wife, Kim, in Manila. 20 years
thereafter, Kim while watching TV saw Gerald
presenting another woman, Maja, as his wife.
Furious, Kim went to Visayas and therein
discovered that there was a registered marriage
certificate between Gerald and Maja, the woman
she saw on TV. Can Kim file a case of bigamy?
Yes, the crime has not yet prescribed. The rule on
constructive notice by registration is applicable
only if the transaction involves real properties.
Registration as to other documents or
transactions with the Office of the Civil Registry
does not constitute constructive notice to the
whole world. Since the wife herein discovered the
bigamous marriage only 20 years thereafter, this
shall be the starting point for the running of the
prescriptive period of the crime.
PRESCRIPTIVE PERIOD SUSPENDED: Upon
filing of complaint or information before the
fiscal's office or before the court/public
prosecutor for purposes of preliminary
investigation. It remains suspended until the
accused is convicted or acquitted or the case is
terminated without the fault of accused.
NOTE: Under the Local Government Code, the
[initiation of] Barangay Conciliation should also
bar the running of the prescriptive period. BUT
SEE Pangilinan, it did not bar the running of the
period. NOTE ALSO: if this is asked in the BAR,
follow Pangilinan: filing of the criminal case
before the prosecutor bars the prescriptive
period.
PRESCRIPTION OF PENALTY- loss of the right of
the State to execute the final sentence. The
moment the penalty has prescribed, the convict
becomes a free man. The state can no longer arrest
him and make him suffer the penalty imposed.
Final sentence Prescriptive
periods
Death and reclusion perpetua 20 years
Other afflictive penalties 15 years
Correctional penalties, 10 years
except arresto mayor
Arresto mayor 5 years
Light penalties 1 year
The running of the period shall commence from
the time the convict evaded the service of his
sentence. It is necessary therefore that the
convict is serving his sentence and while serving,
he escaped. It is from the time of escape that the
prescriptive period runs. Thus if the accused has
not yet began the service of his sentence, the
prescriptive period of the penalty will not run.
EX: Garcia was convicted of homicide. The
judgment became final and executory. He was
brought to serve sentence in Muntinlupa. While
serving sentence, he escaped. Police failed to
capture and find him. It was only after 20 years
that Garcia was located and brought behind bars.
Garcia's counsel filed a Petition for Habeas Corpus
contending that the penalty prescribed and
therefore, Garcia could not be imprisoned. Is the
counsel correct?
Yes the penalty has prescribed. Homicide
prescribes in 15 years. Here, Garcia was captured
20 years from escape.
EX. Cuenca was charged with homicide. Being a
bailable offense, Cuenca posted bail. During the
arraignment and pre-trial, Cuenca appeared
before the court. However, during the trial proper,
he did not appear. Trial in absentia ensued.
Judgment was for conviction. Warrant of arrest
was issued against Cuenca. It was only 20 years
thereafter that the police were able to arrest
Cuenca and bring him behind bars. Cuenca's
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counsel filed a petition for habeas corpus Prescription of Prescription of
contending that the penalty has prescribed. Is the crimes penalties
counsel correct? Loss or forfeiture of Loss or forfeiture of
No, the penalty has not prescribed. In fact, the right of the State to the right of the State to
prescription has not even commenced to run. For prosecute. enforce final judgment.
the period to run, it is necessary that the offender Starts counting upon Starts counting upon
is serving sentence and while serving sentence, he the discovery of the the escape or evasion
escaped. The running of prescriptive period only commission of the of service of sentence.
starts from the escape of offender. In this case, the crime.
offender has not even served his sentence.
Mere absence from the Absence from the
Philippines interrupts Philippines interrupts
SUSPENSION OF PRESCRIPTIVE PERIOD OF
PENALTY:
the running of the the period only when
1. When offender surrenders prescription. the convict goes to a
2. When offender went to a country which has foreign country
no extradition treaty with the Philippines without an extradition
3. When convict commits a crime before the treaty with the
expiration of period of prescription Philippines.
4. When the offender is captured Commission of Commission of
another crime before another crime before
SUBSEQUENT VALID MARRIAGE the expiration of the the expiration of the
BETWEEN THE OFFENDER AND THE prescriptive period period interrupts the
OFFENDED PARTY only applies to private does not interrupt prescription.
crimes- seduction, abduction, acts of prescription.
lasciviousness and one public crime which is rape. (GN 2016)

Under Art. 266-C [rape] and Art. 344 [seduction,
abduction & acts of lasciviousness], the subsequent
valid marriage between the offender and the
offended party extinguishes criminal liability and
even the penalty imposed by the court. So the
subsequent valid marriage would remit even the
penalty already imposed by the court.
Ex. Jack raped Rose. Rose filed a case of rape
against Jack. Trial on the merits ensued. During
trial, Jack and Rose would often see each other
and because of this, they fell in love with each
other. Later on, they got married. This valid
marriage will extinguish the criminal liability of
Jack.
Even if there is already a final and executory
judgment, such as when the offender is already
behind bars, a valid marriage between the
offender and the offended will still extinguish
criminal liability and the penalty imposed.
PARTIAL EXTINCTION OF CRIMINAL
LIABILITY
Art. 94. Partial Extinction of criminal liability. —
Criminal liability is extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit
may earn while he is undergoing preventive
imprisonment or serving his sentence. (As
amended by RA 10592)
4. By parole (not in codal)
5. By probation (not codal)
MODES FOR PARTIALLY EXTINGUISHING
CRIMINAL LIABILITY
1. Conditional Pardon
2. Commutation of sentence
3. Good conduct of allowance
CONDITIONAL PARDON- An act of grace granted
by the Chief Executive. However, unlike an

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absolute pardon, a conditional pardon is subject to Following years until 25 days for each month
strict conditions that the offender must comply the 10th year, inclusive, of good behavior during
with. Because of this strict conditions, there must of his imprisonment detention
be acceptance on the part of the offender. The 11th and successive 30 days for each month
moment he accepts, it becomes incumbent upon years of his of good behavior during
him to comply with the strict terms and imprisonment detention
conditions of the pardon. Failure to comply with At any time during the another deduction of 15
any of the strict conditions, the State can file a period of imprisonment days, in addition to
criminal case under Art 159- evasion of service of numbers one to four
sentence. In addition, the Chief Executive can hereof [above], for
order the immediate incarceration of the offender each month of study,
under the Administrative Code. teaching or mentoring
service time rendered
It only partially extinguishes criminal liability
because it is subject to strict terms and conditions. An appeal by the accused shall not deprive him of
entitlement to the above allowances for good
COMMUTATION OF SENTENCE- a new penalty is conduct (as amended by RA 10592).
imposed shall be in lieu of the original sentence.
Ex: death penalty commuted to Reclusion SPECIAL ALLOWANCE FOR LOYALTY (ART 98,
Perpetua. Reclusion Perpetua should now be as amended by RA 10592):
served instead of death. Deduction [Requisites for allowance]
1/5 of the Granted to any prisoner who,
th

GOOD CONDUCT ALLOWANCE (ART 97 [& 99], period of his  having evaded his preventive
as amended by RA 10592)- if the offender has sentence imprisonment or the service
been behaving properly in prison, the Director of of his sentence under the
the BuCor, the Chief of BJMP and/or the Jail circumstances mentioned in
Warden shall compute the good conduct Article 158 of this Code [i.e.,
allowance in favor of the offender so that he will on the occasion of disorder,
be immediately released. resulting from a
conflagration, earthquake,
ART. 97. Allowance for good conduct. – The good explosion, or similar
conduct of any offender qualified for credit for catastrophe, or during a
preventive imprisonment pursuant to Article 29 mutiny in which he has not
of this Code [added by RA 10592], or of any participated],
convicted prisoner in any penal institution,
rehabilitation or detention center or any other  gives himself up to the
local jail shall entitle him to the following authorities
deductions from the period of his sentence:  within 48 hours following the
Period of Deduction issuance by the Chief
imprisonment Executive of a proclamation
1st two years 20 days for each month announcing the passing away
of good behavior during of the calamity or catastrophe
detention referred to in said article
rd th
3 to 5 yr, inclusive, 23 days for each month 2/5 of his In case said prisoner chose to
th
of his imprisonment of good behavior during sentence stay in the place of his
detention confinement notwithstanding
the existence of a calamity or

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catastrophe enumerated in
Article 158 of this Code.
If the offender escaped and returned to the
government, he shall be given a credit or
deduction in his sentence of 1/5 of his term.
EX: During the time Bin Laden was serving his
sentence behind bars, an 8.9 magnitude
earthquake suddenly occurred prompting Bin
Laden to escape. He then went to the house of his
mother.
While Bin Laden was watching TV in the house of
his mother, he saw the President announcing that
the earthquake subsided. Within 48 hours from
announcement, Bin Laden surrendered. Because
of this surrender, Bin Laden is entitled to the
special allowance for loyalty for being so loyal to
the government.
If Bin Laden merely remained in prison, he is
entitled to a deduction of 2/5th of his sentence. He
is more loyal; for such loyalty there is a greater
reward.
However, if Bin Laden did not return, he violates
Art. 158-Evasion of Service of Sentence: there will
be an additional 1/5 to the term of his sentence.
CIVIL LIABILITY
Art. 100. Civil liability of a person guilty of felony.
— Every person criminally liable for a felony is
also civilly liable.
Art. 101. Rules regarding civil liability in certain
cases. — The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of article
12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability,
which shall be enforced subject to the following
rules:
First. In cases of subdivisions 1, 2, and 3 of
Article 12, the civil liability for acts committed by
an imbecile or insane person, and by a person
under nine years of age, or by one over nine but
under fifteen years of age, who has acted without
discernment, shall devolve upon those having such
person under their legal authority or control,
unless it appears that there was no fault or
negligence on their part.
Should there be no person having such
insane, imbecile or minor under his authority,
legal guardianship or control, or if such person be
insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting
property exempt from execution, in accordance
with the civil law.
Second. In cases falling within subdivision
4 of Article 11, the persons for whose benefit the
harm has been prevented shall be civilly liable in
proportion to the benefit which they may have
received.
The courts shall determine, in sound
discretion, the proportionate amount for which
each one shall be liable.
When the respective shares cannot be
equitably determined, even approximately, or
when the liability also attaches to the
Government, or to the majority of the inhabitants
of the town, and, in all events, whenever the
damages have been caused with the consent of the
authorities or their agents, indemnification shall
be made in the manner prescribed by special laws
or regulations.
Third. In cases falling within subdivisions 5
and 6 of Article 12, the persons using violence or
causing the fears shall be primarily liable and
secondarily, or, if there be no such persons, those
doing the act shall be liable, saving always to the
latter that part of their property exempt from
execution.
GR: Civil action impliedly instituted in
criminal action.
Art. 100: Every person criminally liable is also
civilly liable. For every criminal action filed in
court, the civil action for the recovery of civil
liability is deemed impliedly instituted. This is
because in the commission of a crime, 2 injuries
are inflicted:
1. Social injury against the State for the
disturbance of social order and
2. Personal Injury against the offended party and
his heirs.
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The social injury against the state will be
answered by reparation. The personal injury will
be answered by the civil indemnity.
Exceptions to Implied Institution of Civil
Action [WRP]:
1. When offended party WAIVES the civil action,
2. When the offended party RESERVES the right
to file a separate civil action, which must be
made prior to the presentation of evidence of
the prosecution, or
3. When the offended party files the civil action
PRIOR to the criminal action.
ACQUITTAL, EFFECT ON CIVIL LIABILITY:
Acquittal in criminal action bars recovery in
civil action in the following instances:
1. If the judgment of acquittal states that the
alleged criminal acts of the offender were not
committed by him [the judgment states that he
is not the author of the crime],
2. If the judgment of acquittal states that the
accused is not guilty of criminal or civil
damages
Acquittal does not bar recovery in civil action:
1. When judgment of acquittal is based on
reasonable doubt.
 Because civil actions require mere
preponderance of evidence,
2. When judgment of acquittal states that the
liability of accused is not criminal but civil in
nature.
This usually happens when the case is
estafa and there is a contract between the
accused and complainant, upon which the
accused failed to comply with the terms of the
contract. There is breach of contract,
3. When the judgment of acquittal states the civil
liability does not arise from the crime but from
other sources of obligations,
In the case of Lumantas v. Calapiz, there was still
recovery of civil indemnity despite acquittal due to
reasonable doubt. There may still be recovery
because civil actions require only preponderance of
evidence. Moreover, the evidence shows that the
boy suffered as a result from the surgery done by
Dr. Lumantas.
In Daluraya v. Olivia, the charge was reckless
imprudence resulting in homicide. The SC said that
based on the evidence, the prosecution failed to
prove that the accused was the author of the crime.
This acquittal bars recovery of civil indemnity
because Daluraya was not the author of the
criminal act; thus there is no basis for the
imposition of civil liability.
Art. 102. Subsidiary civil liability of innkeepers,
tavernkeepers and proprietors of establishments. —
In default of the persons criminally liable,
innkeepers, tavernkeepers, and any other persons
or corporations shall be civilly liable for crimes
committed in their establishments, in all cases
where a violation of municipal ordinances or some
general or special police regulation shall have
been committed by them or their employees.
Innkeepers are also subsidiarily liable for
the restitution of goods taken by robbery or theft
within their houses from guests lodging therein, or
for the payment of the value thereof, provided
that such guests shall have notified in advance the
innkeeper himself, or the person representing
him, of the deposit of such goods within the inn;
and shall furthermore have followed the
directions which such innkeeper or his
representative may have given them with respect
to the care and vigilance over such goods. No
liability shall attach in case of robbery with
violence against or intimidation of persons unless
committed by the innkeeper's employees.
Art. 103. Subsidiary civil liability of other persons.
— The subsidiary liability established in the next
preceding article shall also apply to employers,
teachers, persons, and corporations engaged in
any kind of industry for felonies committed by
their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
WHO SHALL SHOULDER THE CIVIL LIABILITY?
If the offender is insane, imbecile, minor:
It shall be shouldered by the persons who have
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custody of the insane, imbecile or minor.
Secondary liability falls on the property of the
insane, imbecile or minor, except those
properties which are prohibited from being
attached.
In case of state of necessity:
All persons who have been benefitted during the
state of necessity shall bear the civil liability. If
there are many persons benefitted, the liability
shall be divided by the court proportionately.
In irresistible force or uncontrollable fear:
Borne by the person who enforced the threats to
the offender. Secondary liability falls upon the
principal by direct participation, who is the one
who acted under the compulsion of irresistible
force or uncontrollable fear.
SUBSIDIARY CIVIL LIABILITY
Requisites to hold Employers subsidiarily
liable for crimes of employees:
1. Employer must be engaged in some kind of
industry
2. Employer and employee relationship
3. Employee committed a crime in the
exercise of his duties as employee
4. There must be conviction of the crime and
the employee was found insolvent to pay
civil indemnity. The moment the employee
was found insolvent, the liability of the
employer now becomes absolute. A motion
for the issuance of a subsidiary writ of
execution must then be filed by the
complainant.
Parents, teacher, employers, proprietors shall be
subsidiarily liable for the crimes committed by
their children, students, employees, servants.
In the case of Solidum v. People, the RTC
convicted Solidum but acquitted the two other
doctors. However, the CA held that it is not only
Dr. Solidum who is civilly liable. The Court of
Appeals held that Ospital ng Maynila (OM) is
subsidiarily liable.
The SC held that this decision of the CA is wrong
in two points: First, OM was not impleaded in the
information filed against the accused. OM is a
juridical entity. How can the CA impose civil
liability on OM when it was not even included in
the case filed against Dr. Solidum?
Second, granting for the sake of argument that OM
was impleaded, still it cannot be subsidiarily liable
because the requisites for the subsidiary liability of
the employers are not present.
First, there is no employer-employee relationship
because based on the evidence, Dr. Solidum is a
consultant and not an employee of OM. Second,
OM is not engaged in some kind of industry, it is a
charitable institution that caters hospital services to
poor patients; there is no profit. Also, Dr. Solidum
was not criminally liable. Lastly, granting that Dr.
Solidum was held liable for civil liability, there was
no proof that Dr. Solidum was insolvent such that
OM will be subsidiarily liable.
EX: Paris Hilton, a guest in a hotel, told the
representative of the hotel that she carries
valuables. The representative of the hotel told
Paris about the rules regarding the care and
vigilance of the valuables. However, during
nighttime, a robbery occurred inside the hotel.
Among those taken were the valuables of Paris.
The offender was arrested, convicted and civil
liability was imposed upon him. In case of
insolvency of the offender, who shall shoulder
subsidiary civil liability?
The proprietor of the hotel or establishment. It is
because the guest complied with the rules and
regulations as to the care and vigilance of the
goods. He also informed the representative of the
hotel of the presence of his valuables.
EX: Same situation as above. But the guard of the
hotel tried to fight the robbers. One of the robbers
shot the guard. Prosecuted for robbery with
homicide and was convicted. In case of insolvency,
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is the proprietor of the hotel subsidiarily liable?
No, because the crime committed is robbery with
homicide, which is a crime under robbery with
violence against or intimidation of persons. If the
crime committed is robbery with violence against
or intimidation of persons, the proprietor is not
liable, except if the offender is the employee of the
hotel or establishment.
EX: A municipal ordinance provides that
Establishment XYZ should only be open during
weekdays. However, this establishment violated
the ordinance as it opened on a Sunday. A crime
was committed during the Sunday it opened. Is
the proprietor of the establishment liable?
Yes, because there was a violation of the
ordinance. Any crimes committed in the
establishment will make the proprietor
subsidiarily liable for civil liability only, not for
criminal liability.
EX: Vin Diesel was a driver of XYZ Corporation
engaged in the business of distributing goods to
supermarkets. Vin Diesel was driving recklessly
as he was headed to one supermarket. In the
course thereof, Vin Diesel hit a car. The car was
damaged. Because of this, a crime for reckless
imprudence resulting to damage to property was
filed against Vin Diesel. Court found him guilty.
The penalties imposed were fine and payment of
damage caused. When the judgment became final
and executory, a writ of execution was issued but
was returned unsatisfied due to the insolvency of
Vin Diesel. If you were the complainant, what
would you do to recover? Is there need to file a
separate civil action?
No need to file a separate civil action. In the very
same action for reckless imprudence resulting to
damage to property, the moment the employee is
found to be insolvent, the liability of the employer
becomes absolute. However, even if it is absolute,
it is not automatic. The complainant has to file a
Motion for the Issuance of a Subsidiary Writ of
Execution. This is not an ex parte motion, but a
litigated one. Thus, the other party (XYZ Corpo)
must be informed for due process. The requisites
of holding an employer subsidiariliy civilly liable
must be proven.
Art. 104. What is included in civil liability. — The
civil liability established in Articles 100, 101, 102,
and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
WHAT DOES CIVIL LIABILITY CONSIST:
1. Restitution
2. Reparation of damages
3. Indemnification of consequential damages
Art. 105. Restitution. — How made. — The
restitution of the thing itself must be made
whenever possible, with allowance for any
deterioration, or diminution of value as
determined by the court. The thing itself shall be
restored, even though it be found in the possession
of a third person who has acquired it by lawful
means, saving to the latter his action against the
proper person, who may be liable to him.
This provision is not applicable in cases in
which the thing has been acquired by the third
person in the manner and under the requirements
which, by law, bar an action for its recovery.
RESTITUTION- Return of the thing itself, if it can
be returned. Even if the thing is in possession of
an innocent purchaser for value without prejudice
to the action that the said innocent purchaser may
have against the other person.
Exception: if the innocent purchaser acquired the
said property in a public sale. Then, it can no
longer be taken away from him.
Art. 106. Reparation. — How made. — 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, and reparation shall be made
accordingly.
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REPARATION- If restitution is not possible, we
have reparation of damages. The judge shall
impose against the accused payment for the value
of the thing together with the special sentimental
value to the owner thereof.
Art. 107. Indemnification — What is included. —
Indemnification for consequential damages shall
include not only those caused the injured party,
but also those suffered by his family or by a third
person by reason of the crime.
INDEMNIFICATION OF CONSEQUENTIAL
DAMAGES - Consists of moral damages,
exemplary damages, and actual damages for the
damages incurred by the offended party and/or
his heirs.
Moral damages in case of rape or murder need
not be proved. It suffices that the crime has been
committed. The law presumes that the victim
suffered moral indemnity because of the crime
committed.
Exemplary damages can only be granted if there
are aggravating circumstances in the commission
of the crime.
In People v. Gambao, the SC held that if the
crime committed is heinous, the moral damage
must be P100,000; the exemplary damages must
also be P100,000.
Art. 108. Obligation to make restoration, reparation
for damages, or indemnification for consequential
damages and actions to demand the same — Upon
whom it devolves. — 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.
Art. 109. Share of each person civilly liable. — If
there are two or more persons civilly liable for a
felony, the courts shall determine the amount for
which each must respond.
If there were 2 accused convicted, insofar as
the civil liability is concerned, it is the court
which shall determine the civil liability of the 2
accused.
Art. 110. Several and subsidiary liability of
principals, accomplices and accessories of a felony
— Preference in payment. — Notwithstanding the
provisions of the next preceding article, the
principals, accomplices, and accessories, each
within their respective class, shall be liable
severally (in solidum) among themselves for their
quotas, and subsidiaries for those of the other
persons liable.
The subsidiary liability shall be enforced,
first against the property of the principals; next,
against that of the accomplices, and, lastly, against
that of the accessories.
Whenever the liability in solidum or the
subsidiary liability has been enforced, the person
by whom payment has been made shall have a
right of action against the others for the amount
of their respective shares.
X, Y and Z were charged in the case of robbery.
They were all charged as principals. But the
judge ruled that X is a principal, Y is an
accomplice and Z is a mere accessory. The
judge divided the civil liability proportionately.
Their liabilities among themselves are in
solidum. Against whom can the private
complainant recover said civil liability?
The private complainant can recover the entire
civil liability from X, the principal but X now has a
right of action against Y and Z insofar as their
respective civil liabilities are concerned. If X
cannot pay, the private complainant can go against
Y. Y can now go against X and Z because their
liabilities are in solidum but subsidiary insofar as
the private complainant is concerned.
Art. 111. Obligation to make restitution in certain
cases. — Any person who has participated
gratuitously in the proceeds of a felony shall be
bound to make restitution in an amount
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equivalent to the extent of such participation.

Art. 112. Extinction of civil liability. — Civil

liability established in Articles 100, 101, 102, and
103 of this Code shall be extinguished in the same
manner as obligations, in accordance with the
provisions of the Civil Law.

EXTINGUISHMENT OF CIVIL LIABILITY:

 By pardon of the offended party
 Other modes for extinguishing civil liability
under Civil Code (payment, Condonation, etc)

Civil liability is personal and cannot be

extinguished by pardon, amnesty, probation,
commutation of sentence, etc. Civil liability can
only be extinguished in the same manner as in Civil
Law, by the extinguishment of obligations, i.e.,
payment, loss of the thing, remuneration,
compensation*, etc.

*mentioned by Prosec pero diba cannot be

compromised if arising from penal offense except if
there was unjust refusal to accept.

Art. 113. Obligation to satisfy civil liability. —

Except in case of extinction of his civil liability as
provided in the next preceding article the offender
shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by
him, notwithstanding the fact that he has served
his sentence consisting of deprivation of liberty or
other rights, or has not been required to serve the
same by reason of amnesty, pardon, commutation
of sentence or any other reason.

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