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PRELIMINARY CONSIDERATIONS

LAW --- A body of rules of action or conduct [obligatory to all]


prescribed by the controlling authority [that has the power to enforce
discipline], and having binding legal force. [Black’s Law Dictionary, p.
459, 1987 ed.]

1. CRIMINAL LAW, Defined --- Criminal law is that branch of


municipal law, which defines crimes, treats of their nature, and
provides for their punishment.

2. CRIME, Defined --- A crime is the COMMISSION or OMISSION


by a person having capacity, of any act, which is either prohibited or
compelled by law and the commission or omission of which is
punishable by a proceeding brought in the name of the
government [People of the Philippines, Plaintiff] whose law has been
violated.

2.a. So that, there is no crime where there is no law


punishing an act. NULLUM CRIMEN, NULLA POENA SINE LEGE.
Clearly there is no common law crime in the Philippines.

2.b. Section 5, Rule 110, Rules of Criminal Procedure: Who


must prosecute criminal actions. --- All criminal actions either
commenced by complaint or by information shall be prosecuted under
the direction and control of a public prosecutor. In case of heavy work
load schedule of the public prosecutor or in the event of lack of public
prosecutors, the private prosecutor may be authorized in writing by
the Chief of the Prosecution Office or the Regional State Prosecutor to
prosecute the case subject to the approval of the court. Once so
authorized to prosecute the criminal action, the private prosecutor shall
continue to prosecute the case up to the end of the trial even in the
absence of a public prosecutor, unless the authority is revoked or
otherwise withdrawn. xxx.

2.c. The word CRIME is generic. If the act is defined and


punished by the RPC, it is called a FELONY. If by a special act or law,
e.g., by a P.D. or R.A., it is called an OFFENSE. If by an ordinance, it is
called an INFRACTION. Although admittedly, oftentimes, even our
legal eagles and learned authors would loosely use the term “offense”
in lieu of “felony.” This is true even with some of the provisions in the
Revised Penal Code.

3. LIMITATIONS UPON THE POWER OF THE PHILIPPINE


CONGRESS TO ENACT PENAL LAWS:
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a. It cannot enact ex post facto laws;
b. It cannot enact a bill of attainder. [A legislative act that applies either
to named individuals or to easily ascertainable members of a group in
such a way as to inflict punishment on them without trial.];
c. penal laws must be of general application; and
c. No cruel, degrading, or inhuman punishment. Imposition of
excessive fines is not allowed. [Art. III, Bill of rights]

CHARACTERISTICS OF CRIMINAL LAW:

a. Generality --- Art. 14. Civil Code: Penal laws and those of
public security and safety shall be obligatory upon all who live or
sojourn in the Philippine territory, subject to the principles of public
international law and to treaty stipulations.

b. Territoriality --- Rule 110, Sect. 15 [a] [b] [c] [d] Dec 1, 2000
Rules of Criminal Procedure, infra. See Art. 2 RPC

c. Prospectivity or irretrospectivity --- Art. 4, Civil Code: Laws


shall have no retroactive effect, unless the contrary is provided. NOTE:
If favorable to the accused/convict, it may be given retroactive effect,
but even if it is favorable to the accused/convict, it cannot be given a
retroactive effect if the accused/convict is a habitual delinquent or that
the law so expressly provides that it has no retroactive effect. [Tavera
v. Valdez, 1 Phil. 468]
N.B. --- See also: Art. 2, Art. 22, ART. 62 (5), ART. 366 of the RPC.

GENERALITY:

EN BANC
G.R. No. L-44896 July 31, 1936

RODOLFO A. SCHNECKENBURGER, petitioner,


vs. MANUEL V. MORAN, Judge of First Instance of
Manila, respondent.

ISSUE: Whether or not a consul is entitled to the


privileges and diplomatic immunities of an ambassador
or minister [Heads of States, charges d’affairs, and
attaches ---Supplied].

HELD: It is well settled that a consul is not


entitled to the privileges and immunities of an
ambassador or minister, but is subject to the laws and
Page 2 of 161
regulations of the country to which he is accredited.
(Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A
consul is not exempt from criminal prosecution for
violations of the laws of the country where he resides.
(U. S. vs. Ravara, 2 Dall., 297; 1 Law. ed., 388;
Wheaton's International Law [2d ed.], 423.)

NOTE: 1. Consuls and vice consuls may be


exempted from criminal prosecution if there exists a
treaty stipulation to that effect.
2. The immunity may only apply under the
DOCTRINE OF RECIPROCITY, i.e., where the
country of the diplomatic representative provides for
the same protection to our own diplomatic
representatives.

ARTICLE VI, SEC. 11, 1987 PHIL.


CONSTITUTION

A Senator or Member of the House of


Representatives shall, in all offenses punishable by
not more than six (6) years imprisonment, be
privileged from arrest while the Congress is in session.
No Member shall be questioned nor be held liable in
any other place for any speech or debate in the
Congress or in any committee thereof.

PRESIDENTIAL DECREE NO. 1620 April 19,


1979

GRANTING TO THE INTERNATIONAL RICE


RESEARCH INSTITUTE (IRRI) THE STATUS,
PREROGATIVES, PRIVILEGES AND IMMUNITIES
OF AN INTERNATIONAL ORGANIZATION

Article 3
Immunity from Legal Process
The Institute shall enjoy immunity from any penal,
civil and administrative proceedings, except insofar as
that immunity has been expressly waived by the
Director-General of the Institute or his authorized
representatives.

REPUBLIC ACT NO. 75 October 21, 1946


Page 3 of 161
AN ACT TO PENALIZE ACTS WHICH WOULD
IMPAIR THE PROPER OBSERVANCE BY THE
REPUBLIC AND INHABITANTS OF THE
PHILIPPINES OF THE IMMUNITIES, RIGHTS, AND
PRIVILEGES OF DULY ACCREDITED FOREIGN
DIPLOMATIC AND CONSULAR AGENTS IN THE
PHILIPPINES

Sec. 4.Any writ or process sued out or


prosecuted by any person in any court of the Republic
of the Philippines, or by any judge or justice, whereby
the person of any ambassador or public minister of
any foreign State, authorized and received as such by
the President, or any domestic or domestic servant of
any such ambassador or minister is arrested or
imprisoned, or his goods or chattels are distrained,
seized, or attached, shall be deemed void, and every
person by whom the same is obtained or prosecuted,
whether as party or as attorney, and every officer
concerned in executing it, shall, upon conviction, be
punished by imprisonment for not more than three
years and a fine of not exceeding two hundred pesos
in the discretion of the court.

Sec. 5.The provisions of section four hereof shall


not apply to any case where the person against whom
the process is issued is a citizen or inhabitant of the
Republic of the Philippines, in the service of an
ambassador or a public minister, and the process is
founded upon a debt contracted before he entered
upon such service; nor shall the said section apply to
any case where the person against whom the process
is issued is a domestic servant of an ambassador or a
public minister, unless the name of the servant has,
before the issuing thereof, been registered in the
Department of Foreign Affairs, and transmitted by the
Secretary of Foreign Affairs to the Chief of Police of
the City of Manila, who shall upon receipt thereof post
the same in some public place in his office. All persons
shall have resort to the list of names so posted in the
office of the Chief of Police, and may take copies
without fee.

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Sec. 6.Any person who assaults, strikes, wounds,
imprisons or in any other manner offers violence to the
person of an ambassador or a public minister, in
violation of the law of nations, shall be imprisoned not
more than three years, and fined not exceeding two
hundred pesos, in the discretion of the court, in
addition to the penalties that may be imposed under
the Revised Penal Code.

Sec. 7.The provisions of this Act shall be


applicable only in cases where the country of the
diplomatic or consular representative adversely
affected has provided for similar protection to duly
accredited diplomatic or consular representatives of
the Republic of the Philippines by prescribing like or
similar penalties for like or similar offenses herein
contained.

REPUBLIC ACT NO. 386 June 18, 1949

AN ACT TO ORDAIN AND INSTITUTE THE


CIVIL CODE OF THE PHILIPPINES

Art. 3. Ignorance of the law excuses no one from


compliance therewith..
Art. 7. Laws are repealed only by subsequent
ones, and their violation or non-observance shall not
be excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be
inconsistent with the Constitution, the former shall be
void and the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution. (5a)
Art. 8. Judicial decisions applying or interpreting
the laws or the Constitution shall form a part of the
legal system of the Philippines. (n)
Art. 10. In case of doubt in the interpretation
or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.
(n)
Art. 12. A custom must be proved as a fact,
according to the rules of evidence. (n)

Page 5 of 161
TERRITORIALITY:

RULES OF CRIMINAL PROCEDURE


[Effective 01 Dec. 2000]

Rule 110, Sec. 15. Place where action is to be


instituted. ---

[a] Subject to existing laws, the criminal action


shall be instituted and tried in the court of the
municipality or territory where the offense was
committed or where any of its essential ingredients
occurred.

[b] Where an offense is committed in a train,


aircraft, or other public or private vehicle in the course
of its trip, the criminal action shall be instituted and
tried in the court of any municipality or territory where
such train, aircraft, or other vehicle passed during its
trip, including the place of its departure and arrival.

[c] Where an offense is committed on board a


vessel in the course of its voyage, the criminal action
shall be instituted and tried in the court of the first port
of entry or of any municipality or territory where the
vessel passed during such voyage, subject to the
generally accepted principles of international law.

[d] Crimes committed outside the Philippines but


punishable under Article 2 of the RPC shall be
cognizable by the court where the criminal action is
first filed.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS,


plaintiff-appellant,

Page 6 of 161
vs.

WONG CHENG (alias WONG CHUN),


defendant-appellee.

ISSUE: whether the courts of the Philippines


have jurisdiction over crimes committed aboard
merchant vessels anchored in our jurisdiction waters.

HELD: There are two fundamental rules on this


particular matter in connection with International Law;
to wit:
(a) FRENCH RULE, according to which crimes
committed aboard a foreign merchant vessels should
not be prosecuted in the courts of the country within
whose territorial jurisdiction they were committed,
unless their commission affects the peace and security
of the territory; and

(b) ENGLISH RULE, based on the territorial


principle and followed in the United States, according
to which, crimes perpetrated under such
circumstances are in general triable in the courts of the
country within territory they were committed.

Of these two rules, it is the last one that


obtains in this jurisdiction, because at present the
theories and jurisprudence prevailing in the United
States on this matter are authority in the Philippines,
which is now a territory of the United States.

We have seen that the mere possession of opium


aboard a foreign vessel in transit was held by this
court not triable by our courts, because it being the
primary object of our Opium Law to protect the
inhabitants of the Philippines against the disastrous
effects entailed by the use of this drug, its mere
possession in such a ship, without being used in our
territory, does not being about in the said territory
those effects that our statute contemplates avoiding.
Hence such a mere possession is not considered a
disturbance of the public order.

Page 7 of 161
But to smoke opium within our territorial
limits, even though aboard a foreign merchant
ship, is certainly a breach of the public order here
established, because it causes such drug to produce
its pernicious effects within our territory. It seriously
contravenes the purpose that our Legislature has in
mind in enacting the aforesaid repressive statute.

U.S. v. Ah Sing, 36 Phil. 978, 10 Oct. 1917, EN BANC

In the case of United States vs. Look Chaw


([1910], 18 Phil., 573), in the opinion handed down by
the Chief Justice, it is found

That, although the mere possession of a thing of


prohibited use in these Islands, aboard a foreign
vessel in transit, in any of their ports, does not, as a
general rule, constitute a crime triable by the courts of
this country, on account of such vessel being
considered as an extension of its own nationality, the
same rule does no apply when the article, whose use
is prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the vessel
upon Philippine soil, thus committing an open violation
of the laws of the land, with respect to which, as it is a
violation of the penal law in force at the place of the
commission of the crime, only the court established in
the said place itself has competent jurisdiction, in the
absence of an agreement under an international treaty.

A marked difference between the facts in the


Look Chaw case and the facts in the present instance
is readily observable. In the Look Chaw case, the
charge was the illegal possession and sale of opium in
the present case the charge is illegal importation of
opium; in the Look Chaw case the foreign vessel
was in transit in the present case the foreign vessel
was not in transit; in the Look Chaw case the opium
was landed from the vessel upon Philippine soil in the
present case of United States vs. Jose ([1916], 34
Phil., 840), the main point, and the one on which
resolution turned, was that in a prosecution based on
the illegal importation of opium or other prohibited
drug, the Government must prove, or offer evidence
sufficient to raise a presumption, that the vessel from
Page 8 of 161
which the drug is discharged came into Philippine
waters from a foreign country with the drug on board.
In the Jose case, the defendants were acquitted
because it was not proved that the opium was
imported from a foreign country; in the present case
there is no question that the opium came from Saigon
to Cebu. However, in the opinion in the Jose case, we
find the following which may be obiter dicta, but which
at least is interesting as showing the view of the writer
of the opinion:

The importation was complete, to say the least,


when the ship carrying it anchored in Subic Bay. It was
not necessary that the opium discharged or that it be
taken from the ship. It was sufficient that the opium
was brought into the waters of the Philippine Islands
on a boat destined for a Philippine port and which
subsequently anchored in a port of the Philippine
Islands with intent to discharge its cargo.

Resolving whatever doubt exists as to the


authority of the views just quoted, we return to an
examination of the applicable provisions of the law. It
is to be noted that section 4 of Act No. 2381 begins,
"Any person who shall unlawfully import or bring any
prohibited drug into the Philippine Islands." "Import"
and "bring" are synonymous te56rms. The Federal
Courts of the United States have held that the mere
act of going into a port, without breaking bulk, is prima
facie evidence of importation. (The Mary [U. S.], 16
Fed. Cas., 932, 933.) And again, the importation is not
the making entry of goods at the custom house, but
merely the bringing them into port; and the importation
is complete before entry of the Custom House. (U. S.
vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots
vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium
Law, we expressly hold that any person who unlawfully
imports or brings any prohibited drug into the
Philippine Islands, when the prohibited drug is found
under this person's control on a vessel which has
come direct from a foreign country and is within the
jurisdictional limits of the Philippine Islands. In such
case, a person is guilty of illegal importation of the
drug unless contrary circumstances exist or the
defense proves otherwise. xxx. To anticipate any
Page 9 of 161
possible misunderstanding, let it be said that these
statements do not relate to foreign vessels in transit, a
situation not present.

JURISDICTION OVER CRIMES COMMITTED ON BOARD


FOREIGN MERCHANT VESSELS WHILE IN PHILIPPINE WATERS:
[Does not apply to Men-o-War.]

a. THE FRENCH RULE --- Crimes committed on board while on


the waters of another country are not triable in that country unless
those affect the peace and security of said country or the safety of that.
country is endangered.

b. THE ENGLISH RULE --- crimes committed on board are triable


in that country unless such crimes affect merely the internal
management of the vessel. [Followed in the Philippines. U.S. v. Wong
Cheng, 19 Oct. 1922, supra.]

IRRETROSPECTIVITY OR PROSPECTIVITY:

EN BANC
G.R. No. L-9621 January 30, 1957
ANG BENG, ET AL., petitioners-appellants,
vs.
THE COMMISSIONER OF IMMIGRATION, respondent-appellee.

ISSUE: Whether the order deporting the


petitioners should be set aside, because the law
defining the crime of which they were convicted had
already expired.

HELD: The benefit of retroactivity and liberal


construction accrues when penal laws are
repealed, not when they merely expired by virtue of
their own force.
The felony with which the petitioners were
charged was committed during the effectivity of the
Import Control Law. The pertinent legal provisions are
therefore Articles 366 and 22 of the Revised Penal
Code, to wit:

ART. 366. Without prejudice to the provisions


contained in Article 22 of this Code, felonies and
misdemeanors, committed prior to the date of
Page 10 of 161
effectiveness of this Code shall be punished in
accordance with the Code or Acts in force at the time
of their commission.
ART. 22. Penal laws shall have a retroactive
effect in so far as they favor the person guilty of felony,
who is not a habitual criminal, as this term is defined in
Rule 5 of Article 62 of this Code, although at the time
of the publication of such laws a final sentence has
been pronounced and the convict is serving the same.

EN BANC
G.R. No. L-41423 March 19, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
CRISANTO TAMAYO, defendant-appellant.

Appellant was convicted in the justice of the


peace court of Magsingal, Province of Ilocos Sur, of a
violation of section 2, municipal ordinance No. 5,
series of 1932, of said municipality. Upon appeal to the
Court of First Instance of Ilocos Sur conviction resulted
and a fine was imposed. From that decision this
appeal was brought.
While this appeal was pending, the municipal
council repealed section 2 in question, which repeal
was duly approved by the provincial board, and the act
complained of, instead of being a violation of the
municipal ordinances, is now legal in that municipality.

Appellant has moved for a dismissal of the action


against him on account of that repeal.
In the leading cases of the United States vs.
Cuna (12 Phil., 241), and Wing vs. United States (218
U.S., 272), the doctrine was clearly established that in
the Philippines repeal of a criminal Act by its
reenactment, even without a saving clause, would not
destroy criminal liability. But not a single sentence in
either decision indicates that there was any desire to
hold that a person could be prosecuted, convicted, and
punished for acts no longer criminal.

There is no question that a common law and in


America a much more favorable attitude towards the
accused exists relative to statutes that have been
Page 11 of 161
repealed than has been adopted here. Our rule is
more in conformity with the Spanish doctrine, but even
in Spain, where the offense ceases to be criminal,
prosecution cannot be had. (1 Pacheco
Commentaries, 296.)
The repeal here was absolute, and not a
reenactment and repeal by implication. Nor was there
any saving clause. The legislative intent as shown by
the action of the municipal council is that such
conduct, formerly denounced, is no longer deemed
criminal, and it would be illogical for this court to
attempt to sentence appellant for an offense that no
longer exists.

5. RULES OF CONSTRUCTION OF PENAL LAWS:

a. The Court is constrained to resolve the issue in favor of


the accused consistent with the rule on the construction of penal
laws, that they are strictly construed against the government and
liberally in favor of the accused. [G.R. No. 91896 November 21,
1991AURORA T. AQUINO vs. COURT OF APPEALS, ET AL.]
(See People v. Yu Hai, 99 Phil. 725 [1956])

b. PRO REO Doctrine --- Whenever a penal law is to be


construed or applied and the law admits of two interpretations,
i.e., one lenient to the offender and the other strict to the latter, the
one favorable to the offender shall be adopted.

c. The final claim of appellee is that inasmuch as the


provisions of the law under which he was prosecuted are
ambiguous and there is doubt as to their interpretation, that doubt
should be resolved in his favor because a penal statute should be
strictly construed against the State. This contention must also fail
if we are to be consistent with our interpretation of the provisions
of Section 15 (a) of the law. We have stated that that section is
clear and unambiguous and covers the provisions embodied in
Section 3 of the law, and if such is the case then there is no room
for the application of the principle invoked by appellee. [G.R. Nos.
L-12011-14, September 30, 1958 PEOPLE OF THE PHIL. vs.
ALFONSO GATCHALIAN, EN BANC]

d. The ruling in People v. Yabut, G.R. No. 82263, June 26,


1992, 214 SCRA 56, is further instructive, viz:
“Well established is the rule that when the inculpatory facts
and circumstances are capable of two (2) or more explanations,
Page 12 of 161
one of which is consistent with the innocence of the accused and
the other consistent with his guilt, then the evidence does not
fulfill the test of moral certainty and is not sufficient to support a
conviction.” [Reiterated in People vs. Tadepa,GRN 100354 May
26, 1995]

e. Also, in People v. Malapayon, G.R. No. 111734-35, June


16, 2000, the Honorable Supreme Court stated: “When a
circumstance is capable of two interpretations, one consistent
with the accused’s guilt, and one with his innocence, the latter
must prevail.”

6. SOME LEGAL MAXIMS [maxim --- a principle or formula


embodying a rule of conduct.]

a. IGNORANTIA LEGIS NEMINEM EXCUSAT. Ignorance of the


law excuses no one from compliance therewith. (“Ignorantia juris non
excusat or ignorantia legis neminem excusat”)
b. IN DUBIIS REUS EST ABSOLVENDUS. All doubts should be
resolved in favor of the accused.
c. ACTUS NON FACIT REUM, NISI MENS SET REA --- The act
does not make a person a criminal unless his mind be criminal. Applies
to DOLO only. In fact, a crime may be committed sans criminal intent in
the following cases: (a) felonies committed by means of Culpa; and (b)
offenses punishable as mala prohibita.
d. PLUS PECCAT AUTHOR QUAM ACTOR: The originator or
instigator of a crime is a worse offender than the actual perpetrator.
e. EX VERBIS LEGIS. Follow the literal or plain meaning.
f. A VERBA LEGIS NON EST RECEDENDUM: From the words of
the statute there should not be a departure.
g. DURA LEX SED LEX: The law may be harsh, but that is the
law.
h. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS: What is not
included in the express mention of things is deemed excluded.
i. IGNORANTIA FACTI EXCUSAT: Mistake of fact is exempting.
j. RES IPSA LOQUITOR: The thing speaks for itself.
December 8, 1930
ACT NO. 3815
THE REVISED PENAL CODE
(As amended)
AN ACT REVISING THE PENAL CODE AND
OTHER PENAL LAWS

Preliminary Art. — This law shall be known as "The Revised Penal


Code."
Page 13 of 161
BOOK ONE
GENERAL PROVISIONS REGARDING THE DATE OR
ENFORCEMENT AND APPLICATION OF THE PROVISIONS
OF THIS CODE, AND REGARDING THE OFFENSES, THE
PERSON LIABLE AND THE PENALTIES

Preliminary Title

DATE OF EFFECTIVENESS AND APPLICATION OF THE


PROVISIONS OF THIS CODE

Art. 1. Time when Act takes effect. — This Code shall take
effect on the first day of January, nineteen hundred and thirty-two.

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 [Must be duly registered under Philippine laws so that it
may be considered as an extension of our national territory.];
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;[Ex. --- Art. 163, pars. 1 & 2;
Art. 166; Art. 167]
3. Should be liable for acts connected with the introduction into
these islands of the obligations and securities mentioned in the
presiding number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions [Those having to do with
the discharge of their duties in a foreign country.]; 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. 114, treason; Art 115, Conspiracy and proposal to commit treason;
Art. 116, Misprision of treason; Art. 117, Espionage; Art. 118 Inciting to
war; Art. 119 Violation of neutrality; Art. 120, Correspondence with
hostile country; Art. 121, Flight to enemy’s country; Art. 122, Piracy; Art.
123, Qualified piracy.]

SCOPE OF APPLICATION OF THIS CODE:

a. Territorial --- Application of this Code within the physical and


juridical boundaries [terrestrial] of the Philippines including its

Page 14 of 161
atmosphere, internal waters, and maritime zone [12 nautical miles from
the baseline].

b. Extraterritorial --- Application of this Code beyond the physical


limits and juridical boundaries of the Philippines. Crime is said to be
extraterritorial when committed in a place or country outside of the
Philippines.

c. Exterritoriality --- The privilege of those persons [such as


foreign ambassadors, sovereigns or heads of state, minister
plenipotentiary, attaches, or charges d’affairs] who, though temporarily
resident within the Philippines, are not subject to the operations of our
laws [Generally accepted principles of Public International Law]. The
privilege extends to their retinue, and members of their household, and
other similar position and rank. [N.B. --- Provided registered with the
DFA.]
Consuls and vice consuls may enjoy this privilege if there
exist a treaty stipulation between their country and the Philippines.
Moreover, all of these are only applicable under the Doctrine of
Reciprocity [scratch my back and I will scratch yours] and that the
foreign representatives and ours must be duly accredited.
Title One
FELONIES AND CIRCUMSTANCES WHICH
AFFECT CRIMINAL LIABILITY
Chapter One
FELONIES

Art. 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.

ANNOTATIONS

a. ELEMENTS [They must concur]:

Dolo --- Freedom, intelligence, and intent. [Malicious/evil


intent or legal malice or bad purpose] [ATM: F I I]

Culpa --- Freedom, intelligence, and negligence or


imprudence. [ATM: F I N I]

Page 15 of 161
b. Dolo and Culpa are just the modality by which a felony is
committed. So that in a case of reckless imprudence resulting in
homicide, what is being punished is not the reckless imprudence, but
the commission of the homicide.
c. But a person accused of willful falsification of public document
may be convicted of reckless imprudence resulting in falsification of
such document. The latter being a lesser crime and necessarily
included in the former.

d. FREEDOM is voluntariness, i.e., exercising one’s own will or


choice. Irresistible force and uncontrollable fear [Art. 12, par. 5 & 6]
negates freedom.

e. INTELLIGENCE is the moral capacity to determine what is


right from what is wrong and to realize the consequences of one’s acts.
Minority, insanity, or imbecility negates intelligence.

f. INTENT is the purpose to use a particular means to effect such


a result. MOTIVE is the reason, which impels a person to commit an
act for a definite result. Intent is an element of a crime. Motive is not. It
is not even necessary to prove motive if there is credible direct
evidence pointing to the accused as the actor. Admittedly, prove of
motive may only be needed when the evidence at hand is not
conclusive or purely circumstantial. Intent is presumed from the
commission of an unlawful act. Mistake of facts negates intent.
If the victim dies, intent to kill is presumed [Pp v. Ortega, Jr., July
24, 1997].

g. General intent --- this is presumed. Like in the crime of


consummated homicide, intent to kill is presumed.

h. Specific intent --- this must be proved as it is an element of a


felony. Like in the crime of attempted homicide, if intent to kill is not
proved, the crime may only be physical injuries.

i. Intent is incompatible with negligence, imprudence, or lack of


foresight or lack of skill or deficiency of perception.

j. A crime may be committed even in the absence of criminal


intent in felonies committed by means of culpa and offenses
punishable by special acts or laws [mala prohibita]

k. NEGLIGENCE --- The omission to do something, which a


reasonable person, guided by those ordinary considerations which
ordinarily regulate human affairs, would do, or the doing of something
Page 16 of 161
which a reasonable and prudent man would not do. .Deficiency of
action.

l. IMPRUDENT --- Not prudent; lacking prudence or discretion;


indiscreet; injudicious; rash; heedless; not cautious; deficient in
perception.

m. MISTAKE OF FACT is exempting [applies only in crimes


committed by means of dolo], mistake in the identity of the victim
[ERROR EN PERSONAE] is not exempting because in the latter there
exists criminal intent.

CASES:

People vs. Oanis et al. July 27, 1943

1. CRIMINAL LAW; MURDER.-Appellants


Corporal Galanta and Chief of Police Oanis were
under instructions to arrest one, Balagtas, a notorious
criminal and an escaped convict, and, if overpowered,
to get him dead or alive. Proceeding to the suspected
house, appellants went into a room and on seeing a
man sleeping with his back towards the door,
simultaneously or successively fired at him with their
32 and 45 caliber revolvers, without first making any
reasonable inquiry as to his identity. The victim turned
out to be an innocent man, Tecson, and not the
wanted criminal. Held: That under the circumstances,
the crime committed by appellants is murder though
specially mitigated by circumstances presently to be
mentioned.
2. CASE AT BAR DISTINGUISHED FROM
UNITED STATES vs. AH CHONG (15 Phil., 488). -In
support of the theory of non-liability by reason of
honest mistake of fact, appellants rely on the case of
United States vs. Ah Chong (15 Phil., 488). The maxim
is ignorantia facti excusat, but this applies only when
the mistake is committed without fault or carelessness.
In the Ah Chong case, defendant therein after having
gone to bed was awakened by someone trying to open
the door. He called out twice, "who is there," but
received no answer. Fearing that the intruder was a
robber, he leaped from his bed and called out again, "if
you enter the room I will kill you." But at that precise
moment, he was struck by a chair which had been
Page 17 of 161
placed against the door and believing that he was then
being attacked, he seized a kitchen knife and struck
and fatally wounded the intruder who turned out to be
his room-mate. A common illustration of innocent
mistake of fact is the case of a man who was masked
as a footpad at night and in a lonely road held up a
friend in a spirit of mischief, and with leveled pistol
demanded his money or life. He was killed by his
friend under the mistaken belief that the attack was
real, that the pistol leveled at his head was loaded and
that his life and property were in imminent danger at
the hands of the aggressor. In these instances, there is
an innocent mistake of fact committed without any fault
or carelessness because the accused, having no time
or opportunity to make a further inquiry, and being
pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared
to him, and such facts justified his act of killing. In the
instant case, appellants, unlike the accused in the
instances cited, found no circumstances whatsoever
which would press them to immediate action. The
person in the room being then asleep, appellants had
ample time and opportunity to ascertain his identity
without hazard to themselves, and could even effect a
bloodless arrest if any reasonable effort to that end
had been made, as the victim was unarmed, according
to one eyewitness. This, indeed, is the only legitimate
course of action for appellants to follow even if the
victim was really Balagtas, as they were instructed not
to kill Balagtas, at sight, but to arrest him, and to get
him dead or alive only if resistance or aggression is
offered by him.
5. KILLING AT BAR IS INTENTIONAL AND NOT
MERELY ACCIDENTAL.-The crime committed by
appellants is not merely criminal negligence, the killing
being intentional and not accidental. In criminal
negligence, the injury caused to another should be
unintentional, it being simply the incident of another
act performed without malice. (People vs. Sara, 55
Phil., 939.) In the words of Viada. "para que se
califique un hecho de imprudencia es preciso que no
haya mediado en él malicia ni intención alguna de
dañar; existiendo esa intención deberá calificarse el
hecho del delito que ha producido, pormás qua no
have side la intención del agente el causar un mal de
Page 18 of 161
tanta gravedad como el que se produjo." (Torn,) 7,
Viada Código Penal Comentado, 5 ed., pág. 7.) And,
as once held by this court, a deliberate intent to do an
unlawful act is essentially inconsistent with. the idea of
reckless imprudence (People vs. Nanquil, 43 Phil, 232:
People vs. Bindor, 56 Phil., 16), and where such
unlawful act is wilfully done, a mistake in the identity
of the intended victim cannot be considered as
reckless imprudence (People vs. Gona, 54 Phil.,
605) to support a plea of mitigated liability.

Tabuena vs. Hon. Sandiganbayan and People February 17,


1997

Thus, even if the order is illegal if it is patently


legal and the subordinate is not aware of its illegality,
the subordinate is not liable, for then there would only
be a mistake of fact committed in good faith.
[ Gregorio, Fundamentals of Criminal Law, 1989 8th
Ed., p. 59.] Such is the ruling in "Nassif v. People"[78
Phil. 67] the facts of which, in brief, are as follows:
"Accused was charged with falsification of
commercial document. A mere employee of R.J.
Campos, he inserted in the commercial document
alleged to have been falsified the word "sold" by order
of his principal. Had he known or suspected that his
principal was committing an improper act of
falsification, he would be liable either as a co-principal
or as an accomplice. However, there being no malice
on his part, he was exempted from criminal liability as
he was a mere employee following the orders of his
principal." [Padilla, Revised Penal Code, Book One,
Vol. I, 7th Ed. 1974., p. 249. See also: Aquino, The
Revised Penal Code, Vol. 1, 1987 Ed., p. 207]

n. MALA EN SE & MALA PROHIBITA: The first is a wrong from


its very nature, wrong in itself. Intent is an element, and good faith is a
defense. The second is wrong because it is prohibited and punished by
law. Although intent is not an element, but there must be intent to
perpetrate the act, which means that it must be committed consciously,
freely, and voluntarily [With freedom and intelligence.]. In addition,
modifying circumstances and stages of execution are inapplicable in
mala prohibita.
Page 19 of 161
Good faith and absence of criminal intent, however, are not valid
defenses since the offense committed is malum prohibitum punished
by special law. [Pp v. Neri, 140 SCRA 406, Dec. 19, 1985]

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. [Impossible crimes] 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. [Penalty is
arresto mayor or a fine from 200 to 500 pesos]

ANNOTATIONS
First Paragraph

a. As regards paragraph 1, the aid to memory is DINALOCO, i.e.,


“A person committing a felony is liable for all the DIrect,
NAtural, and LOgical COnsequence of his felonious act. This
does not apply to felonies committed by culpa because in Art. 4
there must be criminal intent. If the act committed is lawful,
even if an injury ensued, there is no criminal liability. If
negligence or imprudence accompanies the act, the same is
not considered lawful. --- re culpa, see Art. 365.

b. Doctrine: El que es causa de la causa es causa del mal


causado --- He who is the cause of the cause is the cause of
the evil caused. [Pp v. Ural 27 March 1974]

G.R. No. L-30801 March 27, 1974


THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
DOMINGO URAL, accused-appellant
The similar rule in American jurisprudence is that
"if the act of the accused was the cause of the cause
of death, no more is required" (40 C.J.S. 854). So,
where during a quarrel, the accused struck the victim
with a lighted lamp, which broke and fell to the floor,
causing the oil to ignite and set fire to the rug, and, in
the course of the scuffle, which ensued on the floor,
the victim's clothes caught fire, resulting in burns from
which he died, there was a sufficient causal relation
between the death and the acts of the accused to

Page 20 of 161
warrant a conviction of homicide (Williams vs. U.S., 20
Fed. 2nd 269, 40 C.J.S. 854, note 90).

There is a rule that "an individual who unlawfully


inflicts wounds upon another person, which result in
the death of the latter, is guilty of the crime of
homicide, and the fact that the injured person did not
receive proper medical attendance does not affect the
criminal responsibility" (U.S. vs. Escalona, 12 Phil. 54).
In the Escalona case, the victim was wounded on the
wrist. It would not have caused death had it been
properly treated. The victim died sixty days after the
infliction of the wound. It was held that lack of medical
care could not be attributed to the wounded man. The
person who inflicted the wound was responsible for the
result thereof.

c. The felony must be the direct and proximate cause of the injury
inflicted by the offender upon the victim.

d. PROXIMATE CAUSE "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.” And more comprehensively, "the proximate
legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting
a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the final
event in the chain immediately effecting the injury as a natural
and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom."
[FILOMENO URBANO vs. INTERMEDIATE APPELLATE
COURT, ET AL., G.R. No. 72964 January 7, 1988]

e. There is a likelihood that the wound was but the remote cause
and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the proximate cause
of Javier's death with which the petitioner had nothing to do. As
we ruled in Manila Electric Co. v. Remoquillo, et al., 18 May
1956 EN BANC (99 Phil. 118).
"A prior and REMOTE CAUSE cannot be made the basis
of an action if such remote cause did nothing more than furnish
Page 21 of 161
the condition or give rise to the occasion by which the injury
was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated,
and efficient cause of the injury, even though such injury would
not have happened but for such condition or occasion. If no
danger existed in the condition except because of the
independent cause, such condition was not the proximate
cause. And if an independent negligent act or defective
condition sets into operation the instances which result in injury
because of the prior defective condition, such subsequent act
or condition is the proximate cause." (45 C.J. pp. 931-932). (at
p. 125) [FILOMENO URBANO vs. INTERMEDIATE
APPELLATE COURT, ET AL., supra]

If an active force intervened between the felony and the


injury, which is a distinct act foreign to the crime, there is no
liability for such injury. [EN BANC, G.R. Nos. 71-72, Feb. 28,
1947, El Pueblo de Filipinas v. Raymundo Rellin]

Second Paragraph
Impossible Crime

a. If the act performed is constitutive of another distinct crime,


impossible crime is not committed because objectively a crime
is committed.
a.1. Ex. --- Lacing the victim’s drink with sufficient amount of
poison, but no injury resulted to the victim because of resistance to
such substance. --- Frustrated murder.
a.2. If the amount of poison is not sufficient to harm a normal
person --- impossible crime because of inadequate or ineffectual
means employed. Provided the actor believes that the amount was
sufficient and that the crime of murder may be effectively carried out.
Belief on the part of the actor is also an essential factor.
b. In impossible crime, there is no attempted or frustrated stage.
REQUISITES:
a. That the act performed would be an offense against persons or
property;
b. That the act was done with evil intent;
c. That its accomplishment is inherently impossible, or that the
means employed is either inadequate or ineffectual; and
d. That the act performed should not constitute a violation of
another provision of the Revised Penal Code.
Felonies against persons: Parricide; murder; homicide; infanticide;
abortion; duel; physical injuries; and rape.

Page 22 of 161
Felonies against property are: Robbery; Brigandage; theft;
usurpation; culpable insolvency; swindling and other deceits;
violation of chattel mortgage; arson and other crimes involving
destruction; and malicious mischief.

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.

ANNOTATIONS

Rightly so, because in our jurisdiction there is no common law


crime. Nullum crime nulla poena sine lege.

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 over acts, and does not perform all
the acts of execution, which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.
[See also proximate cause and remote cause, page 13, supra.]
ANNOTATIONS

a. Felonies committed by culpa are immediately consummated.


Art. 6 is inapplicable to crimes that are mala prohibita. Impossible
crimes are immediately consummated

Page 23 of 161
b. Direct overt act --- an outward act done in pursuance and
manifestation of a criminal intent or design [Pp v. Go kay, 19 Dec.
1957]. The overt acts must have an immediate and necessary relation
to the offense intended [I Viada 47].

c. "Overt acts" 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 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. [People vs.
Mauricio February 28, 2001, EN BANC]

d. Action must be judged not by what a person says, for what a


person does is the best index of that person’s intentions.

e. Kinds of crimes as to the presence of stages of execution:

b.1. FORMAL CRIMES --- Always consummated by a single


act, e.g., physical injuries, grave oral defamation, & libel. [ATM ---
Finish]

b.2. MATERIAL CRIMES --- With stages. [ATM --- Many]

f. Subjective phase is that portion of the execution of the crime


commencing from the point where the actor starts up to that point
where the actor still has control of his/her act. The felony is attempted.
If the subjective phase is already passed, i.e., where the
actor has no more control of his act, but the felony is not produced, as
a rule, the felony is frustrated.

g. Objective phase is the result of the acts of the execution ---


the felony is accomplished. The felony is consummated if the
subjective phase and the objective phase are present.

h. There is no hard and fast rule in determining whether the felony


is attempted, frustrated, or consummated. We have to consider the
elements and the nature of each individual felony, including the
manner of its execution.

i. The desistance in the attempted stage refers to the crime


intended to be committed and not to the crime actually committed
before the desistance [Pp. v. Palomares, (CA) 75 O.G. 5739].

Page 24 of 161
j. Even if the victim was wounded, but the injury was not fatal and
could not cause his death --- attempted stage only. [PADDAYUMAN v.
Pp. 23 Jan. 2002; Pp v. COSTALES, 15 Jan. 2002] N.B. ---These
cases effectively overturned Borinaga, Dec. 18, 1930 [State of mind]

k. Since the victim was shot on the knee, which was not fatal,
attempted murder was committed and not frustrated murder. [Pp v.
PILONES, 21 July 1978]

l. In attempted homicide or murder, injury to the victim is not a


requisite, PROVIDED, that the offender had started the commission of
the intended crime by direct over act, but does not perform all the acts
of execution, which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance.
Accused fired four (4) shots at his intended victim, but the latter was
not hit, either because of poor aim or because his intended victim
succeeded in dodging the shots. The acts thus committed by the
accused constitute attempted homicide. [Pp v. Kalao, 17 March 1934]

m. In order to justify a conviction for the crime of frustrated


murder, the proof must show that the accused has performed all acts
necessary to cause the death of a human being under circumstances
which would have raised the homicide, if consummated, to the degree
of murder, and that the failure to consummate the crime was due to
causes independent of the will of the accused. [U.S. v. Simeon, April
15, 1904]

o. One who raises a weapon against another as if about to strike


with it is guilty of other light threats [Art. 285]. [Simeon, supra]

p. In attempted felonies, it is necessary to alleged in the


information that “accused commenced the commission of the felony
directly by overt acts and did not perform all the acts of execution,
which should have produced the felony by reason of some cause or
accident other than his own spontaneous desistance. [People vs. PO3
Tan, et al., June 21, 2001]

q. Rape is either attempted or consummated. 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 were performed. The
offender merely commenced the commission of a felony directly by
Page 25 of 161
overt acts. The law on frustrated rape is a dead statute. [People vs.
Aca-ac, April 20, 2001]

r. When no part of the building is burned, the crime committed is


attempted arson. No one could truthfully or successfully maintain that
the offender had performed all the acts of execution, which would
produce the felony of arson as a consequence because the element of
burning of the building is still missing, and the result can be no more
than attempt to commit the offense. [Pp v. Garcia, [CA] 14 Nov. 1952,
citing “Pp v. Fernandez, 54 Phil. 122”]

m. The case of U.S. v. Valdez, 39 Phil., 250, Dec. 10, 1918 where
it was stated that the crime committed was frustrated arson was later
on overturned by People v. Fernandez, 54 Phil., 122.

n. In attempted theft, it is not necessary that there should be real


or actual gain on the part of the offender or that he was able to make
use of or derive benefit from the fruits of his criminal act. [Pp v.
FRANCISCO MERCADO, June 15, 1938, EN BANC, citing United
States vs. Adiao (38 Phil., 754, Oct. 8, 1918, EN BANC) In the Adiao
case, a Manila customs inspector took a leather belt from the baggage
of a passenger who had just landed at the port of Manila and kept it in
his office desk where the other employees found it afterwards. He was
not able to make use of said belt, but he was found of guilty of theft for
the reason that he had performed all the acts of execution necessary
for the consummation of the crime.

o. If the offender is caught before the actual taking of the thing,


after having performed all the acts of execution or before the
offender has final control and disposal of he thing, the theft is
frustrated. So that if the accused was discovered with the stolen bulky
articles at a checkpoint, which must first be passed before the stolen
articles could be subject to the control and disposal of the accused, the
theft was only frustrated because the vehicle was not able to leave the
compound. [Pp. v. Flores, 6 CAR 834, citing Pp v. Dino, 45 O.G. 3446]

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.
[PENALTY: Arresto menor or P200.00 or both imprisonment and
fine.] e.g., Slight physical injuries, theft of property having a value not
exceeding P5.00.00 and the offender was actuated by hunger or
poverty. Accessories are not liable in light felonies.

Page 26 of 161
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.
There is proposal when the person who has decided to commit a
felony proposes its execution to some other person or persons.

ANNOTATIONS

a. ATM --- (1) Conspiracy RPC COURTS [Coup d’etat, rebellion,


treason, sedition] (2) Proposal RPC COURT only.
a.1. Art. 136 ---Conspiracy and proposal to commit coup
d’etat & rebellion.
a.2. Art. 115 --- Conspiracy and proposal to commit treason.
a.3. Art. 141 --- Conspiracy to commit sedition. [NOTE: No
proposal]

b. Conspiracy to commit other crimes is also punishable.

In restraint of trade, Art. 186, RPC, mere conspiracy


constitutes the commission of the felony. In brigandage, Art. 306, RPC,
mere formation of a group of brigands is already punishable. R.A.
9165, conspiracy to bring into the country dangerous drugs; P.D. 1613,
conspiracy to commit arson; P.D. 1728, conspiracy to maliciously
damage any building or personal/real property by explosives or
incendiary device.

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 article.
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.

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.
Page 27 of 161
Chapter Two
JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES
WHICH EXEMPT FROM CRIMINAL LIABILITY

Art. 11. Justifying circumstances. — The following do not incur


any criminal liability;
1. [SELF-DEFENSE] 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.

ANNOTATIONS

a. Self-defense is not limited to life, but includes defense of


chastity, property, honor, and libel.

a.1. The attempt to rape a woman constitutes an


aggression sufficient to put her in a state of legitimate defense
inasmuch as a woman's honor cannot but be esteemed as a right as
precious, if not more, than her very existence; and it is evident that a
woman who, thus imperiled, wounds, nay kills the offender, should be
afforded exemption from criminal liability since such killing cannot be
considered a crime from the moment it became the only means left for
her to protect her honor from so great an outrage. [Pp vs. LUAGUE
and ALCANSARE, November 7, 1935, citing I Viada, 301, 5th edition]

a.2. Aside from the right to life on which rests the legitimate
defense of our own person, we have the right to property acquired by
us, and the right to honor, which is not the least prized of our patrimony
(1 Viada, Código Penal, 5th ed., pp. 172, 173) [Quoted in Pp v.
Jaurigue, 21 Feb. 1946]

b. In DEFENSE OF PROPERTY, there is no requirement that the


unlawful aggression must be directed against the lawful possessor of
the property. Unlawful aggression may be directed even against his
property rights. The assault on the property of the person making
the defense, therefore, amounts to unlawful aggression as
contemplated by law. In the case at bar, there was an actual physical
invasion of appellant's property, which he had the right to resist,

Page 28 of 161
pursuant to Art. 429 of the Civil Code of the Philippines. [Pp v.
Narvaez, 20 April 1983, GRN L-33466:]
However, attention is drawn to the Due Process Clause of the
Constitution, viz: “Article III, Section 1. No person shall be deprived of
life, liberty, or property without due process of law, xxx.” This is not an
empty and hollow sequencing. The import of such statement is that in
the event of conflict among said rights, the right to life reigns supreme,
next is the right to liberty, and least among them is the right to property.
That is, in the hierarchy of rights, the right to life occupies the highest
echelon. Therefore, it is strongly suggested that in the justifying
circumstance of defense of property, extra care must be taken in the
determination of the “reasonableness of the means employed to repel
the unlawful aggression.”

b.1. Related provisions in the Civil Code of the Philippines:

Art. 429. The owner or lawful possessor of a thing has the


right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property.
[DOCTRINE OF SELF-HELP]

Art. 536. In no case may possession be acquired through


force or intimidation as long as there is a possessor who objects
thereto. He who believes that he has an action or a right to deprive
another of the holding of a thing must invoke the aid of the competent
court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his


possession; and should he be disturbed therein he shall be protected
in or restored to said possession by the means established by the
Laws and the Rules of Court.

c. REASONABLE NECESSITY of the means employed to repel


an unlawful aggression:

Pp v. Punzalan, 6 August 1987

ISSUE: What is the gauge in determining the


“REASONABLENESS OF THE MEANS EMPLOYED” to repel an
unlawful aggression?

Page 29 of 161
HELD: The law does not require, and it would be too much to ask
of the ordinary man, that when he is defending himself from a deadly
assault, in the heat of an encounter at close quarters, he should so
mete out his blows that upon a calm and deliberate review of the
incident, it will not appear that he exceeded the precise limits of
what was absolutely necessary to put his antagonist hors de combat
[disabled; out of combat]; or that he struck one blow more than was
absolutely necessary to save his own life; or that he failed to hold his
hand so as to avoid inflicting a fatal-wound where a less severe stroke
might have served his purpose. Of course, the victim of an unlawful
aggression may not lawfully exceed the bounds of rational necessity in
repelling the assault.
But the measure of rational necessity in cases of this kind is
to be found in the situation as it appears to the victim of the
assault at the time when the blow is struck; and the courts should
not and will not, in the light of after events or fuller knowledge,
hold the victims of such deadly assaults at close quarters, to so
strict a degree of accountability that they will hesitate to put forth
their utmost effort in their own defense when that seems to them
to be reasonably necessary.
"The reasonableness of the means employed to prevent an
aggression depends upon the nature and quality of the weapon
used by the aggressor, his physical condition, his size, his
character and the surrounding circumstances vis-à-vis those of
the person defending himself. It is also well settled that in
emergencies, which imperil the life and limb of a person, human
nature acts not upon processes of formal reason but in obedience
to the imperious [urgent] dictates of the instinct of self-
preservation.

b. For self-defense to prosper, it must be established that: (1)


there was unlawful aggression by the victim; (2) that the means
employed to prevent or repel such aggression was reasonable;
and (3) that there was lack of sufficient provocation on the part of
the person defending himself. [Pp v. Geneblazo, July 20, 2001,
citing People vs. Ringor, Jr., 320 SCRA 342 (1999).]

Page 30 of 161
That the gauge of rational necessity of the means employed to
repel the aggression as against one's self or in defense of a relative is
to be found in the situation as it appears to the person repelling the
aggression. The reasonableness of the means adopted is not one of
mathematical calculation or "material commensurability between the
means of attack and defense" but the imminent danger against the
subject of the attack as perceived by the defender and the instinct
more than reason that moves the defender to repel the attack. It has
further been stressed in such cases that to the imminent threat of the
moment, one could not be hoped to exercise such calm judgment as
may be expected of another not laboring under any urgency and who
has sufficient time to appraise the urgency of the situation. [Eslabon v.
Pp, Feb. 24, 1984, 127 SCRA 783]

If, in order to consider that a defendant acted in lawful defense, it


is sufficient that he had well-founded reasons to believe that,
under the attendant circumstances, the means employed by him
to prevent or to repel the aggression, was necessary. [U.S. v.
Batungbacal, 37 Phil., 382, 387]

d. Unlawful aggression contemplates an actual, sudden, and


unexpected attack, or imminent danger thereof, and not merely a
threatening or intimidating attitude -- there has to exist a real danger to
the life or personal safety of the person claiming self-defense. [People
vs. Galapin, 293 SCRA 474 [1998]; People v. Geneblazo, July 20,
2001]
Such aggression refers to an attack that has actually broken
out, or materialized, or is at the very least clearly imminent; it
cannot consist merely of any oral threat or intimidating stance or
posture. [Pp v. Catbagan, Feb. 23, 2004] There is that rule that if it is
clear that the purpose of the aggressor in retreating is to take a more
advantageous position to ensure the success of the attack already
begun, the unlawful aggression is considered still continuing; and the
one resorting to self-defense has a right to pursue and disable the
aggressor. [Catbagan, supra.]
To constitute unlawful aggression, it is necessary that an attack or
material aggression, an offensive act positively determining the intent
of the aggressor to cause an injury shall have been made. A mere
threatening or intimidating attitude is not sufficient to justify the
commission of an act which is punishable per se, and to allow a claim
of exemption from liability on the ground that it was committed in self-
defense. For unlawful aggression to be present in self-defense, there
must he real danger to life or personal safety. [Pp v. Macaso, 64 SCRA
659, 3 June 1975]

Page 31 of 161
e. There is no unlawful aggression when the peril to one’s life,
limb, or right is not either ACTUAL or IMMINENT. Thus, there must be
actual physical force [material attack] or a threat to inflict real injury. In
case of a threat, it must be offensive and positively strong so as to
display a real, not imagined, intent to cause an injury. [Pp v. Basadre,
Feb. 22, 2001]

f. Even if appellant believed that the deceased did try to kill him
when he saw him raise his bolo, such aggression ceased when
appellant succeeded in grabbing the bolo. When an unlawful
aggression, which has begun, no longer exists, one making a defense
has no right to kill or even injure the former aggressor. [Pp v. Bautista,
27 Feb. 2004]

g. There is a rule that if it is clear that the purpose of the


aggressor in retreating is to take a more advantageous position to
ensure the success of the attack already begun, the unlawful
aggression is considered still continuing; and the one resorting to self-
defense has a right to pursue and disable the aggressor. [Pp v.
Catbagan, 23 Feb. 2004]

h. Self-defense is incompatible with accident. [Aradillos, 15


January 2005]

SUFFICIENT PROVOCATION

It is argued that the mitigating circumstance of sufficient


provocation or threat on the part of the offended party immediately
preceding the act should have been appreciated in favor of petitioner
Navarro. Provocation is defined to be any unjust or improper conduct
or act of the offended party, capable of exciting, inciting, or irritating
anyone.[ Pepito v. Court of Appeals, G.R. No. 119942, July 8, 1999.]
The provocation must be sufficient and should immediately
precede the act.[People v. Paga, 79 SCRA 570 (1977)]
To be sufficient, it must be adequate to excite a person to commit the
wrong, which must accordingly be proportionate in gravity.[ People v.
Nabora, 73 Phil. 434 (1941)] and it must immediately precede the act
so much so that there is no interval between the provocation by the
offended party and the commission of the crime by the accused.
In the present case, the remarks of Lingan, which immediately
preceded the act of petitioner, constituted sufficient provocation.
In People v. Macaso,[64 SCRA 659 (1975)] we appreciated this
mitigating circumstance in favor of the accused, a policeman, who shot
a motorist after the latter had repeatedly taunted him with defiant

Page 32 of 161
words. Hence, this mitigating circumstance should be considered in
favor of petitioner Navarro.

2. [DEFENSE OF RELATIVES] 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 provocation was given by the person attacked,
that the one making defense had no part therein.
ANNOTATIONS

a. ELEMENTS: (1) Unlawful aggression on the part of the


victim;
(2) Reasonable necessity of the means employed to
repel the unlawful aggression; and
(3) In case the provocation was given by the person
attacked, the one making defense had no part therein.

b. However, in the case of Pp v. Toring, et al., 26 Oct. 1990,


the Supreme Court did not give full credence to Toring’s claim of
DEFENSE OF RELATIVE despite its finding of the presence of
unlawful aggression on the part of the victim and the lack of
provocation on the part of Toring. He was only credited with the
privileged mitigating circumstance of incomplete defense of
relative
The court ratiocinated in this wise, viz: Toring was motivated
by revenge, resentment, or evil motive because of a "running
feud" between the families of the victim and that of the appellant.
NOTE, that the court did not question the reasonableness of
the means employed, therefore, it is humbly submitted that the
claim of Defense of Relative should have been given full
credence, because all the elements were attendant. Note also,
that the reason advanced by the court, viz: “was motivated by
revenge, resentment, or evil motive” should apply only in Defense
of Strangers, Art. 11 (3).
Toring, in a way, amended the third element of Art. 11(2)
to read: “In case the provocation was given by the person
attacked, the one making defense had no part therein and that
the latter be not induced by revenge, resentment, or other evil
motive. ” This is the clear implication of Toring.

Page 33 of 161
CASE: United States vs. Esmedia, October 21, 1910. --- Any
person, who, in defending his father against an unlawful attack,
while he still honestly believes him to be in great danger,
causes the death of the attacking party, is exempt from criminal
responsibility.

3.[DEFENSE OF STRANGERS] 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 Article are present
and that the person defending be not induced by revenge, resentment,
or other evil motive.

a. The rule then is that what one may do in his own defense,
another may do for him. In other words, persons acting in defense
of others are in the same condition and upon the same plane as
those who act in defense of themselves. [U. S. v. Aviado, GRN
13397, April 1, 1918.]

b. APPRECIATED: Appellant heard the screams and cries


for help of the victim’s wife, and that of his wife. The appellant at
once ran upstairs. He saw the victim attacking his (victim’s) wife,
with a dagger. The appellant, in the defense of the woman
struggled with the victim for the possession of the dagger, in the
course of which he wounded the latter. [Pp v. Valdez, GRN
37754, March 4, 1933]

c. Logic dictates that If the appellant is justified in personally


killing the victim in the course of such defense, a fortiori, he is
justified in providing the person, who is the subject of unlawful
aggression, a weapon that the latter may use in his own defense.

4. [STATE OF NECESSITY] Any person who, in order to avoid an


evil or injury, does act which causes damage to another [person or
property], 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.

N.B. --- [a] There is civil liability here, but the same shall be
borne by those who benefited from the act.

a.1. ART. 859 [CODE OF COMMERCE]. The underwriters of


the vessel, of the freight, and of the cargo shall be obliged to pay
Page 34 of 161
for the indemnity of the gross average in so far as is required of
each one of these objects respectively.
a.2. Art. 101 [RPC]. 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:
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. xxx.

[b] There should be no negligence or fault on the part of the


actor.
[c] Here, there is a clash between two unequal rights, the
lesser gives way to the greater.
[d] Applicable to General Average in maritime commerce
[average adjuster makes the determination of the loss, and the
apportioning of the individual share of those who benefited from the
act.]
[e] For this reason, therapeutic abortion is allowed.
[f] It is not disputed that the ship was in grave peril and that
the jettison of part of the cargo was necessary. If the cargo was in peril
to the extent of call for general average, the ship must also have been
in great danger, possibly sufficient to cause its absolute loss. The
jettison was therefore as much to the benefit of the underwriter as to
the owner of the cargo. The latter was compelled to contribute to the
indemnity; why should not the insurer be required to do likewise? If no
jettison had taken place and if the ship by reason thereof had
foundered, the underwriter's loss would have been many times as
large as the contribution now demanded. [Jarque vs. Smith, Bell & Co.,
November 11, 1930]

5. Any person who acts in the FULFILLMENT OF A DUTY OR IN


THE LAWFUL EXERCISE OF A RIGHT OR OFFICE. [Regarding the
second portion, see also Defense of Property, supra.]

Page 35 of 161
[a] REQUISITES ---(A) that the offender acted in the
performance of a duty or in the lawful exercise of a right or office;
and (b) that the injury or offense committed be the necessary
consequence of the due performance of such duty or the lawful
exercise of such right or office. [[Pp v. Pajenado, et al., 30 Jan.
1976]

Pp v. Oanis, et al., 27 July 1943

ISSUE: What kind of force may a peace officer


use in making an arrest.

HELD: Although an officer in making a lawful


arrest is justified in using such force as is reasonably
necessary to secure and detain the offender,
overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from
bodily harm (People vs. Delima, 46 Phil., 738). yet he
is never justified in using unnecessary force or in
treating him wanton violence, or in resorting to
dangerous means when the arrest could be effected
otherwise (6 C. J. S., par. 13, p. 012). The doctrine is
restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in
making an arrest, and the person arrested shall not be
subject to any greater restraint than is necessary for
his detention." (Rule 109, sec. 2, par. 2). And a peace
officer cannot claim exemption from criminal liability if
he uses unnecessary force or violence in making an
arrest. (5 C. J., p. 753; U. S. vs. Mendoza, 2 Phil.,
109). It may be true that Balagtas was a notorious
criminal, a life-termer, a fugitive from justice and a
menace to the peace of the community but these facts
alone constitute no justification for killing him when, in
effecting his arrest, he offers no resistance, or in fact
no resistance can be offered, as when he is asleep.
This, in effect, is the principle laid down, although upon
different facts, in United States vs. Donoso (3 Phil.,
234, 242).

Valcorza v. Pp, 31 Oct. 1969

FACTS: The deceased was charged with a


relatively minor offense. He escaped from detention
Page 36 of 161
and when ordered to stop by the petitioner peace
officer he ran away and then threw himself into a creek
to elude his pursuer. After sometime he suddenly
emerged from bushes near which petitioner and a
fellow policeman were and assaulted the former twice
with a stone and then ran away again pursued by
petitioner and his companion. Petitioner fired five
cautionary shots into the air and decided to aim
directly at the escaping detainee only when he had
already reasons to fear that the latter would be able to
elude him and his companions.
HELD: The act performed by petitioner was
committed in the performance of his official duty and
was more or less necessary to prevent the escaping
prisoner from successfully eluding the officers of the
law.
To hold him guilty of homicide may have the
effect of demoralizing police officers discharging
official functions identical or similar to those in the
performance of which petitioner was engaged at the
time he fired at the deceased, with the result that
thereafter we would have half-hearted and dispirited
efforts on their part to comply with such official duty.

[b] However, in the Bentres case, decided by the CA, 49


O.G.4919, the appellant security guard was found criminally liable
for shooting and killing the thief who was fleeing with the stolen
articles and who refused to stop, despite four (4) warning shots
fired by the said security guard. He was found to have exceeded
his duty when he fired the fifth shot that killed the thief. [See also
page 18 (b), the due process clause.]

6. Any person who acts in OBEDIENCE TO AN ORDER ISSUED


BY A SUPERIOR FOR SOME LAWFUL PURPOSE.
[a] REQUISITES: (1) an order must have been issued by a
superior; (2) the order must be for a lawful purpose; and (3) the
means used by the subordinate in carrying out such order must
itself be lawful. [Tabuena vs. Hon. Sandiganbayan and People,
Feb. 17, 1997]
[b] Correlate with “Mistake of Facts.”

CASES

Page 37 of 161
Pp v. Margen, et al., March 30, 1950

Obedience to an order of a superior gives rise to


exemption from criminal liability only when the order is
for some lawful purpose (Art. 11, par. 6, Revised Penal
Code). Sergeant Margen's order to have the deceased
tortured was not of that kind. The deceased may have
given offense. But that did not give the sergeant the
right to take the law in his own hands and have the
offender subjected to inhuman punishment. The order
was illegal, and appellant was not bound to obey it.

People of the Phil. vs. Beronilla, et al.


[GRN L-4445 February 28, 1955]

CRIMES COMMITTED UPON ORDERS OF


SUPERIOR OFFICERS; LACK OF CRIMINAL
INTENT.-Where the accused acted upon orders of
superior officers that they, as military subordinates,
could not question, and obeyed in good faith, without
being aware of their illegality, without any fault or
negligence on their part, the act is not accompanied by
criminal intent. 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 be innocent. (U. S. vs. Catolico, IS Phil.,
507; People vs. Pacana, 47 Phil., 48; Sent. of the
Tribunal Supremo of Spain, 3 July 1886; 7 January
1901; 24 March 1900; 21 Feb. 1921; 2.5 March 1929).

7. Battered Woman Syndrome --- refers to a scientifically


defined pattern of psychological and behavioral symptoms found in
women living in battering relationship as a result of cumulative abuse.
[Sec. 3 (c), R.A. No. 9262.

8. Section 26, R.A. No. 9262 --- BATTERED WOMAN


SYNDROME AS A DEFENSE --- Victim-survivors who are found by the
courts 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 circumstances of self-defense under the
Revised Penal Code.
In the determination of the state of mind of the woman who was
suffering from battered woman syndrome at the time of the commission
of the crime, the court shall be assisted by expert
psychiatrists/psychologist.
Page 38 of 161
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. [MINORITY] A person nine years of age and below.

3. [MINORITY] 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 [Now Articles 189 to 213 of P.D.
No. 603, infra.]
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. [Now Articles 189
to 213 of P.D. No. 603, infra.]
SEE LATEST: R. A. 9344, JUVENILE JUSTICE AND
WELFARE ACT of 2006:
§6, R.A. 9344 --- 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.

Section 20, R.A. 9344

Children Below the Age of Criminal Responsibility. - If it has


been determined that the child taken into custody is fifteen (15)
years old or below, the authority which will have an initial contact
with the child has the duty to immediately release the child to the
custody of his/her parents or guardian, or in the absence thereof,
the child's nearest relative. Said authority shall give notice to the
local social welfare and development officer who will determined
the appropriate programs i consultation with the child and to the
person having custody over the child. If the parents, guardians or
Page 39 of 161
nearest relatives cannot be located, or if they refuse to take
custody, the child may be released to any of the following: a duly
registered non-governmental or religious organization; a
Barangay official or a member of the Barangay Council for the
Protection of Children (BCPC); a local social welfare and
development officer; or, when and where appropriate, the DSWD.
If the child referred to herein as been found by the Local Social
Welfare and Development Office to be abandoned, neglected or
abused by his parents, or in the event that the parents will not
comply with the prevention program, the proper petition for
involuntary commitment shall be filed by the DSWD or the Local
Welfare and Development Office pursuant to Presidential Decree
No. 603, otherwise known as "The Child and Youth Welfare
Code".

A child above fifteen (15), 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.

§5. Rights of the Child in Conflict with the Law. (R. A.


9344, JUVENILE JUSTICE AND WELFARE ACT of 2006)---
Every child in conflict with the law shall have the following rights,
including, but not limited to:
(k) the right to have restrictions on his/her personal liberty
limited to the minimum, and where discretion is given by law to
the judge to determine whether to impose fine or imprisonment,
the imposition of fine being preferred as the more appropriate
penalty;
(l) in general, the right to automatic suspension of sentence;
(m) the right to probation as an alternative to imprisonment,
if qualified under the Probation Law;
(n) the right to be free from liability for perjury, concealment
or misrepresentation.

N.B. --- The term “youthful offender” is no longer used. In its stead
is the term “Child in conflict with the law.”
The term DISCERNMENT means the capacity to distinguish
right from wrong and to perceive or recognize the consequences
of his act.

Page 40 of 161
4. [PURE ACCIDENT] 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 INSUPERABLE CAUSE. [This is
a felony by omission, id est, failing to perform a required act.]

ANNOTATIONS

(a) In addition to the seven above quoted, INSTIGATION and


ABSOLUTORY causes also exempt the actor from criminal liability.

(b) There is no civil liability in pure accident, Art. 12 (4) [Corpus, et


al. vs. Paje, et al., July 31, 1969] and insuperable cause.
b.1. 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.

(c) In the justifying circumstances, there is no crime and no


criminal, but in exempting circumstances, there is a crime, but no
criminal.

(d) People vs. Nepomuceno, Jr. November 11, 1998

Page 41 of 161
Accused-appellant cannot invoke the benevolent provisions of
Paragraph 4, Article 12 of the Revised Penal Code in order to be
exempted from criminal liability arising from the death of his wife,
Grace Nepomuceno. Said provision pertinently states:
Art. 12. Circumstances which exempt from criminal liability. The
following are exempt from criminal liability:
xxx xxx xxx
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.
At all events, accident to be exempting, presupposes that the act done
is lawful. Here, however, the act of accused-appellant of drawing a
weapon in the course of a quarrel, the same not being in self-defense,
is unlawful - it at least constitutes light threats (Article 285, par. 1,
Revised Penal Code). There is thus no room for the invocation of
accident as a ground for exemption (People vs. Reyta, Jr., 13 CAR
(25) 1190;1195 [1968]).

d. IMBECILITY AND INSANITY --- the civil liability is


VICARIOUS, i.e., liability that arises from the act of another. This is
exempting in all cases except where the crime was committed during
the actor’s lucid interval. The prosecution has the burden of proving
discernment, which is the mental capacity to fully appreciate the
consequences of one’s act or to determine the difference between right
and wrong.
(a) Imbecility is absolutely exempting, while Insanity is
conditional because it is not exempting if the criminal act was
committed during lucid interval.
(b) Mere mental aberration, eccentricity, mild psychosis, or
schizophrenia is not exempting except where during the commission of
the crime, the accused was totally without control of his will power. At
most, those mental illnesses, which merely diminishes the will power
[Note: not total] of the accused, is only mitigating.
(c) Insanity, in order to be exempting the accused must be
insane immediately before the commission of the crime or during such
commission.
People vs. Talavera
[G.R. No. 139967. July 19, 2001]

A man’s acts is presumed voluntary, for every


person is presumed to be of sound mind. It is based
on the moral and legal presumption that freedom and
intelligence constitutes the normal condition of a
person. The presumption, however, may be
overthrown by factors such as insanity, which exempts
Page 42 of 161
a person from criminal liability. Insanity exists when
there is a complete deprivation of intelligence in
committing the act. Mere abnormality of the mental
faculties will not exclude imputability. The accused
must be so insane as to be incapable of entertaining a
criminal intent. He must be deprived of reason and act
without least discernment because there is a
complete absence of the power to discern or a total
deprivation of freedom of the will. In determining a
defendant’s competency to stand trial, the test is
whether he has the capacity to comprehend his
position, to understand the nature and object of the
proceedings against him, to conduct his defense in a
rational manner, and to cooperate, communicate with,
and assist his counsel to the end that any available
defense may be interposed.
Whenever the facts of the case show that a
defendant’s behavior when he committed the crime is
such that it creates doubt as to the voluntariness of his
acts, the court should conduct appropriate measures
to determine the mental state of the person. Our
courts are designed not merely for purposes of
establishing the commission of a crime but also to
ascertain whether a “criminal mind” was responsible
for its commission. This is the rationale why our penal
laws recognize certain circumstances which exempt a
person from criminal liability, among which is insanity.
Concomitant with this is the Estrada insanity test laid
down by the court in People v. Estrada, [G.R. No.
130487, June 19, 2000.] which requires determination
of two distinct matters:
(1) Whether the defendant is sufficiently coherent
to provide his counsel with information necessary or
relevant to constructing a defense; and
(2) Whether he is able to comprehend the
significance of the trial and his relation to it.
These matters help ascertain if a person
comprehends the state which he is in, particularly the
relationship between the defendant and his counsel
and the defendant vis-à-vis the court proceedings.
The insanity tests should have been particularly
observed in cases where the supreme penalty of death
may be imposed upon the accused considering that
man can never restore life once taken. All protective
measures must be exercised so as not to wrongfully
Page 43 of 161
punish one who does not deserve it regardless of how
heinous the crime committed may be.

e. PURE ACCIDENT: ELEMENTS --- (a) performance of a lawful


act; (b) with due care; (c) causes inury to another by mere accident;
and (d) without any fault or intention of causing it. [People vs.
Nepomuceno, Jr. November 11, 1998]
e.1. [Biagtan, et al. vs. Insular Life Assurance Co., LTD.,
March 29, 1972] Accident was defined as that which happens by
chance or fortuitously, without intention or design, and which is
unexpected, unusual and unforeseen, or that which takes place without
one's foresight or expectation - an event that proceeds from an
unknown cause, or is an unusual effect of a known cause, and
therefore not expected (29 Am. Jur. 706).

f. COMPULSION OF IRRESISTIBLE FORCE:


People vs. Joselito Del Rosario y Pascual
April 14, 1999
[GRN 127755 April 14, 1999]

A person who acts under the compulsion of an


irresistible force, like one who acts under the impulse
of an uncontrollable fear of equal or greater injury, is
exempt from criminal liability because he does not act
with freedom. Actus me invito factus non est meus
actus. An act done by me against my will is not my
act. The force contemplated must be so formidable as
to reduce the actor to a mere instrument who acts not
only without will but against his will. The duress, force,
fear or intimidation must be present, imminent and
impending, and of such nature as to induce a well-
grounded apprehension of death or serious bodily
harm if the act be done. A threat of future injury is not
enough. The compulsion must be of such a character
as to leave no opportunity for the accused for escape
or self-defense in equal combat. [People v. Lorena,
G.R. No. 54414, 9 July 1984, 130 SCRA 311]
As a rule, it is natural for people to be seized by
fear when threatened with weapons, even those less
powerful than a gun, such as knives and clubs. People
will normally, usually and probably do what an armed
man asks them to do, nothing more, nothing less. In
the instant case, del Rosario was threatened with a
gun. He could not therefore be expected to flee nor
risk his life to help a stranger. A person under the
Page 44 of 161
same circumstances would be more concerned with
his personal welfare and security rather than the safety
of a person whom he met only for the first time that
day.

To be free of criminal culpability, a person invoking irresistible


force or uncontrollable fear must show that the force exerted was such
that it reduced him to a mere instrument acting not only without will but
against his will as well. Compulsion must be, of such character as to
leave appellant no opportunity for self-defense in equal combat or
escape. [Pp v. Tami, May 2, 1995]

g. IMPULSE OF UNCONTROLLABLE FEAR:


People vs. Fronda May 14, 1993

Fear in order to be valid should be based on a


real, imminent or reasonable fear for one's life or limb
(People vs. Abanes, 73 SCRA 44, [1976])
In order that the circumstance of uncontrollable
fear may apply, it is necessary that the compulsion be
of such a character as to leave no opportunity to
escape or self-defense in equal combat. (People vs.
Loreno, 130 SCRA 311, [1984]

People vs. Daganon, et al. November 13, 1986

More recently, in the case of People v. Loreno


(130 SCRA 311), this Court held that: " . . . The duress,
force, fear or intimidation must be present, imminent
and impending and of such a nature as to induce a
well-grounded apprehension of death or serious bodily
harm if the act is not done. A threat of future injury is
not enough. The compulsion must be of such a
character as to leave no opportunity to the accused for
escape or self-defense in equal combat."

People vs. Petenia, et al. August 12, 1986


EN BANC

For this exempting circumstance to be invoked


successfully, the following requisites must concur: (a)
existence of an uncontrollable fear; (b) the fear must
be real and imminent; and (c) the fear of an injury is
greater than or at least equal to that committed.
Page 45 of 161
h. Compulsion of irresistible force is a physical force coming from
a stranger. While impulse of uncontrollable fear comes from within the
person himself.

i. INSUPERABLE OR LAWFUL CAUSE [No civil liability.


Insuperable --- insurmountable; cannot be overcome. ] People v.
Badian, Sept. 30, 1936: This exempting circumstance implies
knowledge of the precept of the law to be complied.
Failure to deliver a detention prisoner to the proper judicial
authorities within the prescribed reglementary period is exempting
because of insuperable or lawful cause
Medina vs. Orozco Jr. [GRN L-26723 December
22, 1966]

First to be considered is the charge of arbitrary


detention. Petitioner claims violation of Article 125 of
the Revised Penal Code.
xxx xxx xxx
However, stock should be taken of the fact that
November 7 was a Sunday, November 8 was declared
an official holiday; and November 9 (election day) was
also an official holiday. In these three no-office days, it
was not an easy matter for a fiscal to look for his clerk
and stenographer, draft the information and search for
the Judge to have him act thereon, and get the clerk of
court to open the courthouse, docket the case and
have the order of commitment prepared. Then, where
to locate, and the certainty of locating those officers
and employees could very well compound the fiscal's
difficulties. These are considerations sufficient enough
to deter us from declaring that Arthur Medina was
arbitrarily detained. For, he was brought to court on the
very first office day following arrest. [U. S. vs.
Vicentillo, 19 Phil, 118, 119 (March 18, 1911); Sayo, et
al. vs. Chief of Police, et al., 80 Phil. 859, 870; Aquino,
The Revised Penal Code, 1961 ed., Vol. II, p. 820,
citing People vs. Acacio, 60 Phil. 1030.]

j. INSTIGATION [absolutory] and ENTRAPMENT [not


absolutory]:
People vs. Boco y Alejo et al. [GRN 129676 June 23, 1999]

A buy-bust operation is a form of entrapment,


which in recent years has been accepted as a valid
Page 46 of 161
means of arresting violators of the Dangerous Drugs
Law. It is commonly employed by police officers as an
effective way of apprehending law offenders in the act
of committing a crime. In a buy-bust operation, the
idea to commit a crime originates from the offender,
without anybody inducing or prodding him to commit
the offense. Its opposite is instigation or
inducement, wherein the police or its agent lures the
accused into committing the offense in order to
prosecute him. [People v. Doria, GR No. 125299,
January 22, 1999]

k. ABSOLUTORY CAUSES: People v. Doria, GR No. 125299,


January 22, 1999: Absolutory causes are those causes where the act
committed is a crime but for reasons of public policy and sentiment
there is no penalty imposed-Citing Reyes, Revised Penal Code, Book
I, pp. 231-232 [1993].

k.1. Art. 16 --- No accessories in light felonies; Art. 7 --- No


punishment imposed for light felonies unless consummated, except in
crimes against person or property; see also Art. 247 where the physical
injuries inflicted is not serious; Art. 20; Art 124 last par. Arbitrary
detention (confinement in a hospital of a person who is suffering from
violent insanity).; Art. 280 (3) Trespass to dwelling – for a lawful cause.
k.2. Also, spontaneous desistance before performing all acts
of execution, in certain cases. [Art. 6]
k.3. Art. 332 (RPC)---
Persons exempt from criminal liability. — No criminal, but only
civil liability, shall result from the commission of the crime of theft,
swindling or malicious mischief (A.T.M. : MET) committed or caused
mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by
affinity in the same line.
2. The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall have passed
into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in- law,
if living together.
The exemption established by this article shall not be applicable
to strangers participating in the commission of the crime.

Chapter Three
CIRCUMSTANCES WHICH MITIGATE
CRIMINAL LIABILITY
Page 47 of 161
ANNOTATIONS

1. There are two kinds, viz: Ordinary (OMC), and Privileged


(PMC, Art. 69).

2. Distinction between the OMC and the PMC:

a. A generic aggravating circumstance (GAC) can offset an


OMC, but not a PMC; [People v. SPO1 Ulep, 20 Sept. 2000]

b. Nothing can offset a PMC;

c. An OMC lowers the penalty by a period only [see Art. 64,


par. 5], but no limit as there are OMCs proved. While a PMC lowers
the penalty by one or two degrees, as the case may be [Lacanilao v.
Court of Appeals, No. L-34940, June 27, 1988, 162 SCRA 563.
reiterated in Ulep, supra.];

d. Accused was over 9 but under 15 years old when he


committed the crime. Penalty was reduced by two degrees [Pp v.
Daliray, 26 Jan. 2004] See latest: R. A. 9344, JUVENILE JUSTICE
AND WELFARE ACT of 2006 ; and

e. An OMC, even as provided for under Art. 64 (5), applies


only to divisible penalties (but see Pp v. Marivic Genosa, 15 JAN.
2004). A PMC applies to both divisible and indivisible penalties. Two
OMCs, sans GAC, partake of the nature of a PMC.

3. Art 13(1) & (2) on MINORITY only [However, see R.A. 9344],
but not senility, are both PMCs. The rest are OMCs. Although the death
sentence may not be imposed upon a convict who is over seventy
years old [Art. 47] or if imposed earlier, it is to be suspended upon
reaching the age of more than 70 [Art. 83].

4. The defense has the burden of proving the attendant


circumstance of a mitigating circumstance.

5. Several mitigating circumstances that are based on the same


fact or facts, are to be treated as one.. In the case of Pepito et al. vs.
CA et al., July 8, 1999, the Hon. Supreme Court said, viz: “The Court of
Appeals likewise correctly disregarded the mitigating circumstance of
having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation after it appreciated that of sufficient
Page 48 of 161
provocation or threat on the part of the offended party immediately
preceding the act. It is settled that if these two mitigating
circumstances are based on the same facts, the same should be
treated as one.”
EXAMPLE: A insulted B. The latter, because of the insult, killed A.
It may appear that the following OMCs were attendant, viz: (1)
Immediate vindication of a grave offense; (2) Sufficient provocation; (3)
Passion and obfuscation.
Only one OMC will be appreciated because they all arose from
the insult

6. ORDINARY MODIFYING CIRCUMSTANCES [OMCs & GACs]


do not apply in the following cases:
a. Where the penalty is single and indivisible.
b. Felonies through negligence (culpable felonies).
c. Where the Penalty is fine only.
d. Where the penalty is prescribed by special law. Except
where the special law provides for penalties similar to those in the
RPC, e.g. (1) P.D. 1866, as amended by R.A.8294 --- Section 3, “The
penalty of prision mayor in its maximum period to reclusion temporal
and a fine of not less than fifty thousand pesos shall be imposed upon
any person who shall unlawfully manufacture, assemble, deal in ,
acquire xxx ”; (2) R. A. No. 9262, Anti-Violence Against Women and
Their Children --- Section 6 thereof, on penalties.

Art. 13. Mitigating circumstances. — The following are


mitigating circumstances; [Note: the first two are privileged mitigating
circumstances and are covered under Art. 69.]

1. [INCOMPLETE JUSTIFYING AND EXEMPTING


CIRCUMSTANCES] 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. This is
a PMC.

1.a. For this circumstance to be appreciated, a majority of


the elements of self-defense, including unlawful aggression, must
be established. [Pp v. Catbagan, Feb. 23, 2004]

1.b. In People v. Bato, 15 Dec. 2000, the Hon. Supreme


Court stated, viz: ”In the absence of unlawful aggression on the
part of the victim, there can be no self-defense, complete or
incomplete. [Citing People v. Deopante, 331 Phil. 998, 1018
[1996].]”

Page 49 of 161
People vs. Cabellon and Gaviola
[GRN 29221 August 8, 1928]
1. CRIMINAL LAW; HOMICIDE; DEFENSE OF A
RELATIVE.- Of the three elements required by the law
for exemption from criminal liability for the defense of a
relative, only one may be held to be present in the
crime in question, and that is, the unlawful aggression
on the part of the deceased. And by virtue of the
provision of article 86 of the Penal Code, the penalty to
be imposed upon the appellant must be the penalty
one degree lower than that prescribed by law.

De Luna vs. CA June 2, 1995


[GRN 111484 June 2, 1995]
EN BANC

“We did repeatedly say before that, whether


complete or incomplete, self-defense, by its very
nature and essence, always would require the
attendance of unlawful aggression initiated by the
victim which must clearly be shown. [People v.
Delgado, 182 SCRA 343; People v. Cañete, 175 SCRA
111; People v. Agapinay, 186 SCRA 812; United States
v. Carrero, 9 Phil. 544]
When unlawful aggression on the victim's
part is alone established, incomplete self-defense is
so appreciated merely as an ordinary mitigating
circumstance under Article 13, paragraph 18 of the
Code. When such unlawful aggression is coupled
with still another element of self-defense,
incomplete self-defense becomes a privileged
mitigating circumstance, referred to in Article 69, of the
Revised Penal Code, that entitles the accused to a
reduction of the penalty imposed by law for the felony
by one or two degrees depending on the conditions
and circumstances therein obtaining.”
N.B. --- De Luna [decided En Banc] and
Catbagan [decided 23 Feb. 2004] clearly overturned
the ruling in Cabellon.

2. [MINORITY] that the offender is under eighteen years of age


or [SENILITY] over seventy years. In the case of the minor, he
shall be proceeded against in accordance with the provisions of
Art. 80 [Art. 80 was already repealed by P.D. 603, The Child and
Youth Welfare Code of the Philippines, infra.]. This is a PMC.
Page 50 of 161
SEE LATEST: R. A. 9344, JUVENILE JUSTICE AND
WELFARE ACT of 2006. The above discussion no longer holds
true. Presumption is on minority. It is now on the shoulder of the
prosecution to present sufficient evidence to rebut such
presumption.

3. [PRAETER INTENTIONEM] that the offender had no


intention to commit so grave a wrong as that committed. Lack of
intent to commit so grave a wrong, is not applicable in culpa.

3.a. This does not apply to culpable felonies. In culpa, intent


is not an element. In its stead is either negligence (deficiency of
action) or imprudence (deficiency of perception). The intention of
the offender at the moment that he committed the crime, not the
intention during the planning stage.

3.b. Intention is a mental process and is an internal state of


mind. The intention must be judged by the action, conduct, and
external acts of the accused. What men do is the best index of
their intention.. Pp v. Regato, et al., 31 January 1984]

4. That SUFFICIENT PROVOCATION or threat on the part of


the offended party immediately preceded the act.

4.a. Provocation is defined to be any unjust or improper


conduct or act of the offended party, capable of exciting, inciting,
or irritating anyone. The provocation must be sufficient and
should immediately precede the act. To be sufficient, it must be
adequate to excite a person to commit the wrong, which must
accordingly be proportionate in gravity. And it must immediately
precede the act so much so that there is no interval between the
provocation by the offended party and the commission of the
crime by the accused. [Navarro v. CA, Aug. 26, 1999]

4.b. Provocation in order to be a mitigating circumstance


must be sufficient and immediately preceding the act. [People vs.
Pagal, GRN L-32040 October 25, 1977.]

4.c. For provocation in order to be a mitigating circumstance


must be sufficient and immediately preceding the act. [Pp v. Alconga &
Bracamonte, April 30, 1947]

4.d. Immediate --- At once; no delay.

Page 51 of 161
But in Pp. v. Deguia, 20 April 1951 --- A confronted B and
accused the latter of stealing his jackfruits. B went home, looked
for a weapon, returned and killed A. Provocation was still
appreciated.

5. That the act was committed in the IMMEDIATE


VINDICATION OF A GRAVE OFFENSE to the one committing
the felony (delito), his spouse, ascendants/descendants, or
relatives by affinity within the same degrees.

5.a. Including legitimate, natural or adopted brothers or


sisters.
5.b. First cousin is not included (4th degree).

5.c. The grave offense is something punishable or not


punishable by law, but that it caused the anger or resentment on
the part of the accused. For example: defamatory remarks;
eloping with the daughter of the accused; or calling someone a
parasite. How to measure the effect of the act --- consider the
age, status, social standing, and other attendant circumstances,
e.g. presence of other people.

5.d. Immediate here means proximate. An interval of time


between the commission of the grave offense and the vindication
may be allowed. [Slapping engenders perturbation of the mind
that may last even until the following day when the killing was
done]

6. That of having acted upon an impulse so powerful as


naturally to have produced PASSION OR OBFUSCATION.

6.a. Passion --- Outbreak of violent emotion, e.g., blinded by


anger.

6.b. Obfuscation --- Blinded by anger. Sudden impulse of


natural and uncontrollable fury. [Loss of self-control]
6.c. This OMC must arise from lawful sentiments or
legitimate feelings.

6.d. The following requisites must concur: (1) there should


be an act both unlawful [or unjust] and sufficient to produce such
condition of mind; and (2) said act which produced the
obfuscation was not far removed from the commission of the
crime by a considerable length of time, during which the
perpetrator might recover his moral equanimity.
Page 52 of 161
6.e. Equanimity --- composure; makapamensar.

7. [VOLUNTARY SURRENDER and VOLUNTARY PLEA OF


GUILTY] 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.

7.a. To be appreciated as a mitigating circumstance,


voluntary surrender must be established by the concurrence of
the following requisites: (a) the offender had not actually been
arrested; (b) the offender surrendered himself to a person in
authority or to an agent of a person in authority; and (c) the
surrender was voluntary. [Pp. v. Catbagan, 23 Feb. 2004; Pp v.
Belaje, 23 Nov. 2000; People v. Amamangpang, 291 SCRA 638,
654 (1998)]

7.b. A surrender, to be voluntary, must be spontaneous,


showing the intent of the accused to submit himself
unconditionally to the authorities, either because he
acknowledges his guilt, or he wishes to save them the trouble and
expense necessarily incurred in his search and capture. Voluntary
surrender presupposes repentance. [Pp v. Abolidor, 18 Feb. 2004]

7.c. Arrest is not synonymous with voluntary surrender. So


that when accused, after shooting the victim, was immediately
disarmed and arrested, even if he did not resist the arrest or deny
his criminal act, voluntary surrender was not appreciated. [Pp v.
Brecinio, 17 March 2004]

7.d. Requisites of voluntary plea of guilty or confession of


guilt: (1) the accused spontaneously confessed his guilt; (2) the
confession was made in open court, that is, before a competent
court trying the case; (3) the confession was made prior to the
presentation of evidence by the prosecution. [Pp. v. Juan (En
Banc), 14 Jan. 2004]

8. That the OFFENDER IS DEAF AND DUMB, BLIND or


otherwise suffering from some physical defect, which thus
restricts his means of action, defense, or communications with his
fellow beings.

8.a. But, nocturnity is present since the accused purposely


sought the cover of darkness of the night in committing the crime.
Page 53 of 161
However, this aggravating circumstance is offset by the mitigating
circumstance that appellant suffers some physical defect which
thus restricts his means of action, defense, or communication with
his fellow beings, to wit: appellant's right hand is missing as a
consequence of an accident involving "kuwitis" which occurred on
New Year's eve of 1966. [Pp v. Garillo, GRN L-30281, 2 Aug.
1978]

8.b. In the crime of Estafa, this circumstance was not


appreciated because his physical defect has no relationship to
the crime committed. But in a case where a deaf-mute was
slandered and who cannot fight back with another slander
because he cannot talk, picked up a piece of wood and hit the
victim, this mitigating circumstance was appreciated.

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.
9.a. Examples: (a) Schizophrenia [a psychosis “major mental
disorder” characterized by emotional, intellectual, and behavioral
disturbance, such as withdrawal from reality, delusions, and
progressive deterioration.] (Webster’s); (b) Acute neurosis [A
functional nervous or emotional disorder marked by severe
anxiety or depression making the person ill-tempered and easily
angered; (c) Puerperal [Pertaining to child birth] fever; (d)
Feeblemindedness [Weak intellectually].
However, where there was complete deprivation of the
power to control the will the same shall be analogous to insanity
and, therefore, exempting.
9.a. To be appreciated as a mitigating circumstance, after a
plea of insanity is rejected, the accused must be shown to have
been suffering from a chronic mental disease that affected his
intelligence and willpower for quite a number of years prior to the
commission of the act he was being held for. [Pp v. Opuran, 17
March 2004]

10. And, finally, any other circumstances of a similar nature and


analogous to those above mentioned.

10.a. The following are considered analogous


circumstances:
10.a.1. Extreme poverty = state of necessity;
10.a.2. Leading the police to the place where he buried
the loot = voluntary surrender;

Page 54 of 161
10.a.3. Killing by the accused of the victim who
several days prior had manhandled him = sufficient provocation or
passion and obfuscation;
10.a.4. Jealousy = passion or obfuscation;
10.a.5. Testifying for the prosecution without being
discharged = voluntary plea of guilty.
10.a.6. Prompt voluntary restitution of the property
subject of malversation or robbery/theft = voluntary surrender.
10.a.7. Although in senility, the age of the offender must
be more than 70 years old, but even if the age is only more than
60, but with failing eyesight the same may be considered
analogous to senility.

11. People vs. Bernal, et al., July 14, 1952: MITIGATING


CIRCUMSTANCE OF HAVING ACTED IN OBEDIENCE TO AN
ORDER ISSUED BY A SUPERIOR. [PMC] - Accused , having fired at
the victim following his superior's order, which was obviously illegal and
unwarranted, is liable for the killing, although he is entitled to the
mitigating circumstance of having acted "in obedience to an order
issued by a superior.”

Chapter Four
CIRCUMSTANCE WHICH AGGRAVATE
CRIMINAL LIABILITY

ANNOTATIONS

a. Must be proved as conclusively as the crime itself. [Pp v. Alde,


29 May 1975]

b. Kinds of aggravating circumstances:


b.1. Generic – [Sometimes referred to as “aggravating
circumstance” only.] generally applies to all crimes, e.g. recidivism.
b.2. Specific – applies to a particular felony like disregard of
sex, age, or rank in crimes against persons;
b.3. Qualifying – [Sometimes referred to as “qualifying
circumstance” only.] changes the nature and even the name of the
felony, such as killing by means of poison in murder. This is an
ingredient of the felony; and
b.4. Inherent – part of the felony committed, such as dwelling
in robbery with force upon things. Must of necessity accompany the
commission of the felony.

NOTE: The superstars are the GACs and the QUACs

Page 55 of 161
c. The Revised Rules on Criminal Procedure, made effective
on 01 December 2000, requires aggravating circumstances, whether
ordinary or qualifying, to be stated in the complaint or information.
Sections 8 and 9 of Rule 110 of the Rules of Court now provide:

“Sec. 8. Designation of the offense. - The complaint or


information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense, and specify
its qualifying and aggravating circumstances. If there is no designation
of the offense, reference shall be made to the section or subsection of
the statute punishing it.

“Sec. 9. Cause of the accusations. - The acts or omissions


complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute but in
terms sufficient to enable a person of common understanding to know
what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment.”

A court would thus be precluded from considering in its


judgment the attendance of “qualifying or aggravating circumstances” if
the complaint or information is bereft of any allegation of the presence
of such circumstances. [Pp v. Catubig, EN BANC, August 23, 2001]

d. GACs and OMCs offset each other, but not QUACs because
These are ingredients of the felony and are included in its definition or
provision of the law. An OMC may offset a QUAC only when the latter
partakes of the nature of a GAC, viz: (a) Excess, like where there are
two or more QUACs attendant in the killing; (b) In robbery with
homicide, treachery will only partake of he nature of a mere GAC.

e. No matter how many GACs are proved and appreciated, it will


never increase the penalty beyond the maximum provided by law. For
example, the penalty for homicide is Reclusion Temporal, no mention
about the period --- meaning in its medium. Thus, the penalty would be
Reclusion Temporal medium. Even if there were, say, four GACs
proved and appreciated, the maximum of the penalty would not be
higher than Reclusion Temporal maximum. Unlike in OMCs were there
is no limit, because it is favorable to the accused.

f. Unlike in Art. 13 [Mitigating Circumstances], Art. 14


[Aggravating Circumstances] does not admit of analogous cases.
Art. 14 is exclusive [Pp v. Armando A. Regala, 5 April 2000 (G.R. No.
130508)] [Pp v. Torres, (EN BANC) March 16, 2004]. EXPRESSIO
Page 56 of 161
UNIUS EST EXCLUSIO ALTERIUS. Art. 14 lists down 21 aggravating
circumstances, but to that we can add the following, viz:
(1) Section 25, Art. II of R.A. 9165 (Comprehensive
Dangerous Drugs Act of 2002), which provides, viz: “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 ;”
and
(2) Section 1, par. 3 of P.D. 1866, as amended by R.A.
8294, provides: “If homicide or murder is committed with the use of an
unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.” [Pp v. Badajos, Jan. 15,
2004; Pp v. Allawan, Feb. 13, 2004]

g. Art. 62. --- Effect 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.

h. The attendance of aggravating circumstances in the


perpetration of the crime serves to increase the penalty (the
criminal liability aspect), as well as to justify an award of
exemplary or corrective damages (the civil liability aspect),
moored on the greater perversity of the offender manifested in the
commission of the felony such as may be shown by (1) the
motivating power itself, (2) the place of commission, (3) the
means and ways employed, (4) the time, or (5) the personal
circumstances of the offender or the offended party or both. [Pp v.
Catubig, August 23, 2001]

i. QUACs and GACs should be proved with the same quantum of


evidence as the crime itself.

Art. 14. Aggravating circumstances. — The following are


aggravating circumstances:

Page 57 of 161
(1) That advantage is taken by the offender of his public
position.
1.a. The offender must have intentionally availed of the
influence or reputation of his position in order to facilitate the
commission of the crime. So that where the accused police
officer, because of passion and obfuscation and at the spur of the
moment, shot the victim using his government issued firearm, this
aggravating circumstance does not apply.
1.b. If the crime committed by the public official is inherent in
his position, this does not apply, e.g. malversation & bribery.
1.c. Article 62, par. 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.

(2) That the crime be committed in contempt or with insult


to the public authorities.
2.a. The phrase “public authorities” should read as “persons
in authority.”
2.b. Requisites: (a) the public authority is engaged in the
discharge of his duties; and (b) he is not the object of the crime
being committed [Pp v. Gutierrez, 8 Feb. 1999; People vs.
Magdueño September 22, 1986]; and the offender knows of
the identity of the person in authority.

(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 it be committed in the dwelling of the
offended party, if the latter has not given provocation.
3.a. The term dwelling should not be equated with domicile.
3.b. The first portion [SAR] is only applicable in crimes
against persons, security, or honor. Disregard of age, sex or rank
is not aggravating in robbery with homicide, which is primarily a
crime against property, as the homicide is regarded as merely
incidental to the robbery. [Pp. v. Montinola, July 9, 2001]
3.c. If all are attendant in the commission of the crime ---
considered as one only.
But in the case of Pp v. Santos, 91 Phil. 320; Pp v. Daos,
27 April 1934; Pp v. Puesca, 05 Dec. 1978, the Supreme Court
stated that “When their elements are distinctly perceived and can
subsist independently, revealing a greater degree of perversity.”
They are to be considered independently.
3.d. Offender must deliberately and intentionally offend or
insult the sex or age of the offended party. So that in a crime

Page 58 of 161
where the circumstance of sex is inherent, e.g., rape, seduction,
acts lasciviousness, or parricide disregard of sex does not apply.
3.e. The term rank refers to a high position in social life or in
the government service, e.g. teacher, priest, judge, consul,
ambassador, or regional directors of government agencies. The
offender must have knowledge of the identity of the victim.
3.d. Assault should not be while the public officer [person in
authority or his agent] was in the act of discharging his function or
that it should not be committed by reason of such performance.
Otherwise, the crime is Direct Assaults.
PERSONS IN AUTHORITY
(not limited to the following enumeration)
a. Chief Executive --- Guillen, 85 Phil. 307
b. Mayors --- Imson, 80 Phil. 285; Gumban, 39 Phil. 76; Dirain, 9
Phil. 162.
c. Judges --- Prudencio Garcia, 20 Phil. 358; Montiel, 9 Phil. 162;
Torrecarion, CA 52 O.G. 7644.
d. Brgy. Chairman, Kagawad, members of the Lupong
Tagapamayapa --- Section 388, LGC of 1991 (R.A. 7160).
e. Governor --- Baluyot, 40 Phil. 385; Dano, 87 Phil. 588.
f. Provincial Treasurer --- Gerardo Ramos, 57 Phil. 462.
g. Director of Posts --- Acierto, 57 Phil. 614.
h. Division Superintendent of Schools --- Benitez, 63 Phil. 671.
i. School teacher --- Rosa de Guzman, CA 46 O.G. 3177,
Commonwealth Act 578.
j. Election inspector --- Villanueva vs. Ortiz, 108 Pil. 1349;
Marapao, 85 Phil. 832.
k. Chief of Police --- Pp v. PO3 Feliciano, 24 Sept. 2001

AGENTS OF A PIA
(not limited to the following enumeration)
a. BIR agent --- Dosal, 92 Phil. 877.
b. Postmaster, Municipal Treasurer, Sanitary Inspector.
c. Chief of Provincial Hospital.
d. Postal Clerk

3.f. Disregard of respect due to sex and age may be


included in treachery.
3.g. The killing of a 6-year old child by an adult person is
treacherous. (People vs. Sancholes, 271 SCRA 527 [1997]. N.B.
Disregard of age is absorbed.
3.h. Dwelling is aggravating even if the accused did not enter
the house, but he shot the victim from outside the house; or that
the commission of the crime was started from inside the dwelling
and was concluded outside of the dwelling. This is appreciated in
Page 59 of 161
adultery where the adulterous act was committed inside the
conjugal dwelling and that the paramour resides elsewhere.
3.i. But calling the deceased down from his house and killing
him in the immediate vicinity thereof is not the commission of the
crime in the dwelling of the murdered person unless it appears
that the place is so connected with the house as to form an
integral part thereof. [UNITED STATES VS. J. RAMOS ET AL.
,GRN 539 April 1, 1902.] Especially is there exists a means of
communication (passage) between that place and the house.
3.j. Case:
People vs. Perreras, G.R. No. 139622. July 31, 2001
EN BANC

Dwelling aggravates a felony where the crime was


committed in the dwelling of the offended party if the latter
has not given provocation or if the victim was killed inside his
house. Dwelling is considered aggravating primarily because
of the sanctity of privacy the law accords to human abode.
He who goes to another's house to hurt him or do him wrong
is guiltier than he who offends him elsewhere.
Although accused-appellant was outside of the house
when he fired, the victim was inside his house. For the
circumstance of dwelling to be considered, it is not
necessary that the accused should have actually entered the
dwelling of the victim to commit the offense; it is enough that
the victim was attacked inside his own house, although the
assailant might have devised means to perpetrate the
assault from the outside.

3.k. The staircase is an integral part of dwelling.


3.l. Not appreciated in Robbery with force upon things.
Considered inherent.
3.m. Dwelling is aggravating in robbery with violence or
intimidation because this class of robbery can be committed
without the necessity of trespassing the sanctity of the offended
party's house. [Pp v. Cabato, April 15, 1988] Appreciated in
robbery with homicide in the case of Reyes, decided En Banc 13
April 2004.
3.n. Pp v. Daniel, 75 O.G. 4834: The term “dwelling” includes
a room in a boarding house. It is not necessary that the victim
owns the place where he stays or dwells.
3.o. Pp v. Alcala, 40 Phil. 739: “Dwelling” includes
dependencies, staircase, and enclosures under the house.

Page 60 of 161
(4) That the act be committed with abuse of confidence or
obvious ungratefulness.
4.a. It is also essential that the confidence between the
parties must be immediate and personal such as would give that
accused some advantage or make it easier for him to commit the
crime. That such confidence was a means of facilitating the
commission of the crime, the culprit taking advantage of the
offended party's belief that the former would not abuse said
confidence. [Pp v. Mandolado, et al. 28 June 1983]
4.b. Requisites: (a) the offenderd party has trusted the
offender and the latter abused such trust; (b) that such abuse of
confidence facilitated the commission of the felony.
4.c. APPRECIATED: (a) Houseboy for several years, killing
her master inside the latter’s bedroom where the offender was
always allowed access in order to clean it; (b) Accused was
accommodated to live with the family of the complainant whom he
raped [Pp v. Cabresos, May 26, 1995]; (c) Host killed in his own
house by his guest. [People vs. Ponciano, December 5, 1991]; (d)
When the killer of the child is the domestic servant of the family
and was sometimes the deceased child's amah, the aggravating
circumstance of grave abuse of confidence is present. [Pp v. Lora,
March 30, 1982]
4.d. NOT APPRECIATED: (a) Victim and assailant had just
met each other when the murder was committed; (b) Inasmuch as
the relation of trust and confidence that exists in this case is
between the accused-appellant and the father of the deceased,
and that the deceased was then residing apart from his father as
he was working in Zamboanga City, there is no immediate and
personal relationship between accused-appellant and the
deceased. [Pp v. Comendador, Sept. 18, 1980];

(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.
5.a. The offender must have purposely sought the place in
order to commit the crime. A contrario, if the crime was casually
committed in such place, this GAC is not applicable.
5.b. The aggravating circumstance that the killing was done
in a place dedicated to religious worship, cannot be legally
considered, where there is no evidence to show that the accused
had murder in her heart when she entered the chapel that fatal
night. [Pp v. Jaurigue, 21 Feb. 1946]
5.c. The trial court also erred in appreciating the aggravating
circumstance that the commission of the crime was in contempt of
Page 61 of 161
or with assault to public authorities. The REQUISITES of this
circumstance are: (1) the public authority is engaged in the
discharge of his duties and (2) he is not the person against whom
the crime is committed. None of these circumstances are present
in this case. In the first place, the crime was committed against
the barangay chairman himself. At the time that he was killed, he
was not engaged in the discharge of his duties as he was in fact
playing a card game with his neighbors.
5.d. However, the aggravating circumstance of commission
of a crime in a place where the public authorities are engaged in
the discharge of their duties should be appreciated against
petitioner Navarro. The offense in this case was committed right
in the police station where policemen were discharging their
public functions. [Navarro v. CA, et al., Aug. 26, 1999, citing Pp v.
Regala, 113 SCRA 613 (1982)]

(6) That the crime be committed in the nighttime, or in an


uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the offense.
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.
6.a. Generally, if all these aggravating circumstances concur
in the commission of the crime, all will constitute one aggravating
circumstance only. However, these can be considered separately
if their elements are distinctly perceived and can subsist
independently. [Pp v. Santos, 91 Phil. 320, May 21, 1952; Pp v.
Daos, 27 April 1934; Pp v. Puesca, 05 Dec. 1978]
6.b. Nocturnity is an aggravating circumstance when it is
deliberately sought to prevent the accused from being recognized
or [taken advantage, supplied.] to ensure his unmolested escape.
There must be proof that this was intentionally sought to insure
the commission of the crime and [Should be or] that appellants
took advantage thereof. In the instant case, there is paucity of
evidence that the peculiar advantage of nighttime was purposely
and deliberately sought by the accused, "the fact that the offense
was committed at night will not suffice to sustain nocturnity."
[People vs. Fortich, GRN 80399-404, November 13, 1997]
6.c. By itself, Nocturnity is a GAC. If Nocturnity is sought as
a means, mode, or form to insure the execution of the crime, it
will be absorbed by treachery [crime against person], a QUAC.
6.d. Nighttime is from sunset to sunrise. [Pp v. Lao, Dec. 9,
1999]

Page 62 of 161
6.e. Nighttime is out of the question where it has no
influence in the commission of the crime, such as malversation,
bribery, libel, bigamy, or falsification .
6.f. The ELEMENTS of nocturnity as an aggravating
circumstance are: (a) when it facilitated the commission of the
crime; or (b) when especially sought by the offender to insure the
commission of the crime or for the purpose of impunity, or (c)
when the offender took advantage thereof also for purposes of
impunity. There are two tests for nocturnity as an aggravating
circumstance:
(a) The objective test, under which nocturnity is
aggravating because it facilitates the commission of the offense;
and
(b) The subjective test, under which nocturnity is
aggravating because it was purposely sought by the offender.
These two tests should be applied in the alternative. [Pp v.
Lomerio, Feb. 28, 2000]
6.g. The uninhabitedness of a place is determined not by the
distance of the nearest house to the scene of the crime, but
whether or not in the place of commission, there was reasonable
possibility of the victim receiving some help. [Pp v. Damaso, 20
May 1978] It must be purposely sought, chosen, or taken
advantage to facilitate the commission of the crime. In Pp v. Egot,
June 25, 1984, the Supreme Court stated, thus: “A place where
there are no people or any number of houses within a perimeter
of less than 200 meters is uninhabited.” “A distance of 200 yards
to the nearest house is sufficient to make the scene of the crime
uninhabited.”
6.h. Uninhabited cannot be appreciated if it there was no
showing that the accused purposely sought it (subjective test) or
took advantage of it to commit the crime without any interference
and that he might better attain his purpose (objective test).
6.i. Band – at least four persons that are armed with means
of violence; more than three armed malefactors with the common
intention of committing a crime. The manner or degree of
participation is immaterial provided the acts are all geared
towards the attainment of a common design, and provided further
that they all directly participated in its commission. If less than
four directly participated, and the other was left in the hideout
because he was the mastermind --- no band. If during trial, only
three were convicted and the others were acquitted then there is
no band.
This is inherent in brigandage. In the crime of rape, it is
inherent under the first paragraph of Art. 266-A [[Whenever the

Page 63 of 161
rape was committed with the use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.]
APPRECIATED: (1) as GAC in Robbery with homicide, 1st
par. Art. 294, Pp v. Pedroso, EN BANC, 30 July 1982. Note, this
case effectively overturned Ombao (2) as GAC in Robbery with
homicide; rob. w/ rape, intentional mutilation, or with phy. inj.
resulting in insanity, impotency, or blindness, Pp v. Puesca, EN
BANC, Dec. 5, 1978.
NOT APPRECIATED:(1) Pp. v. Ombao, ist Div., Feb. 26,
1981. Overturned by Pedroso, supra.

ERNESTO GARCES, Petitioner,


versus
Pp, Respondent., G.R. No. 173858, 2007 Jul 17, 3rd Division

We also note that the trial court failed to make any definitive
finding as to the existence of aggravating circumstances. However, we
find that the aggravating circumstances of nighttime and uninhabited
place did not attend the commission of the crime.

Nocturnity is aggravating when it is deliberately sought to prevent


the accused from being recognized or to ensure his unmolested
escape.[20] The mere fact that the rape was committed at nighttime
does not make nocturnity an aggravating circumstance. In the instant
case, other than the fact that the crime was committed at night, there is
no other evidence that the peculiar advantage of nighttime was
purposely and deliberately sought by the accused.

The aggravating circumstance of uninhabited place cannot


likewise be appreciated in the absence of evidence that the accused
actually sought an isolated place to better execute their purpose. The
records do not show that solitude was purposely sought or taken
advantage of to facilitate the commission of the crime.

6.j. A crime is committed by a band whenever more than


three (3) armed malefactors shall have acted together in the
commission of an offense. As GAC only. [Pp v. Lee, et al., Dec.
20, 1991]
6.k. Absorbed by “abuse of superior strength.” They have the
same essence
6.l. Where band is appreciated, the same may also apply to
the principal by inducement. (Pp v. Ilane, 31 May 1938)

Page 64 of 161
(7) That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemic or other
calamity or misfortune.
7.a. This operates as a QUAC in crimes against persons
(Art. 248 murder), also in theft (Art. 310)
7.b. Other calamity: eruption of a volcano, destructive
cyclone, or other public calamity.
7.c. The development of engine trouble at sea is a
misfortune, but it does not come within the context of the phrase "other
calamity or misfortune" as used in Article 14, paragraph 7 of the
Revised Penal Code, which refer to other conditions of distress similar
to those precedingly enumerated therein, namely, "conflagration,
shipwreck, earthquake, epidemic, "such as the chaotic conditions
resulting from war or the liberation of the Philippines during the last
World War. The reason for the provision of this aggravating
circumstance "is found in the debased form of criminality met in one
who, in the midst of a great calamity, instead of lending aid to the
afflicted, adds to their suffering by taking advantage of their misfortune
to despoil them."[People vs. Arpa, et al., GRN L-26789 April 25, 1969]

7.d. Contra-distinguish with par. 12 where the fire,


inundation, or explosion is used as a means in committing the
crime.
(8) That the crime be committed with the aid of armed men
or persons who insure or afford impunity.
8.a. The aggravating circumstances of abuse of superior
strength and aid of armed men are absorbed in treachery. [Pp v.
Hijapon, July 10, 2001]
8.b. NOT APPRECIATED: Because the appellant as well as
those who cooperated with him in the commission of the crimes in
question acted under the same plan and for the same purpose.
[Pp v. Abrera, Dec. 12, 1997] Meaning, they were in conspiracy.
[Pp v. Umbrero, et al., May 8, 1991]
8.c. The armed men must take part in the commission of the
crime, directly or indirectly, but must not act under the same plan
and for the same purpose, otherwise conspiracy will set in, or that
if there were at least four of them, then it will be absorbed by
Band. See abuse of superior strength (par. 15).

(9) 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.

Page 65 of 161
9.a. The term final judgment should be read as “final and
executory judgment.”
9.b. First conviction must be for the first felony, and the
second conviction, for the second felony that was committed after
the first felony.
9.c. Note that there is no mention as to the lapse of time
between the commission and conviction of the first felony and that
of the second one. The clear inference is that recidivism is
imprescriptible.
9.d. Contra distinguish with Art. 62 on HABITUAL DELINQUENCY.
(FLERTS)Falsification,LSPI,Estafa,Robbery,Theft.Serious P.I.
9.e. An offender may be a recidivist and a habitual
delinquent if he was convicted for the third time of a felony that is
embraced within the same title as that of either the first and
second felony, but limited to FLERTS only, within ten years from
the date of his release or last conviction, whichever applies.
9.f. Not a requirement that the accused shall have served
out his sentence for the previous felony or felonies. What is
required is just a final and executory conviction.

(10) [REITERACION or HABITUALITY]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.
10.a. The accused shall have served out his sentence for the
prior felony or felonies.
10.b. The court has the discretion of whether or not to
consider it in the imposition of the penalty. This is unlike in
recidivism where its presence is always considered in the
imposition of the penalty.

(11) That the crime be committed in consideration of a price,


reward, or promise.
11.a. QUAC in crimes against persons.
11.b. Applies to both the giver and the receiver.
11.c. The price, reward, or promise must be the primary
consideration why the actual perpetrator [principal by direct
participation] committed the felony. This does not apply in a case
where with or without it the principal by direct participation would
nevertheless commit the crime.
11.d. The inducement must be made directly with the
intention of procuring the commission of the crime and that such
inducement must be the determining cause of the crime. [Pp v.
Agapinay, June 27, 1990] See also “principal by inducement.”
Page 66 of 161
11.e. If the manner of execution was not agreed upon and
was left to the discretion of the hitman, all other GACs and
QUACs that were attendant to its commission will only affect the
hitman and not the inducer.

(12) 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.
12.a. QUAC in crimes against persons.
12.b. If a building is burned in order to kill the occupant, the
crime is “Destructive Arson” and that the fact of the injury or death
must be alleged. The mandatory penalty is death. Art. 320 as
amended by P.D. 1744 and R.A. 7659. This is no longer
considered murder.

(13) That the act be committed with EVIDENT PREMEDITATION.


13.a. Cool and serene reflection as to the consequences of
his act.
13.b. Can be satisfactorily established only if it could be
proved that the defendant had ample and sufficient time to allow
his conscience to overcome the determination of his will, if he had
so desired, after meditation and reflection, following his plan to
commit the crime. [Pp. v. Montejo, Nov. 21, 1988]
13.c. Does not apply or not appreciated where there was
mistake of identity [error en personae]. (Pp. Romeo Barros, June
27, 1995)
13.d. Inherent in crimes against property. (U. S. vs. Blanco,
10 Phil., 298; U. S. vs. Hermosilla, 31 Phil., 405; Pp v. Dos, Apr.
27, 1934) Also, in arson. May be considered in robbery with
homicide if there was evident premeditation to kill in addition to
the robbery.
13.e. In order to be appreciated, there must be proof of
planning and preparation to commit the felony. [Pp v. Clariño, July
31, 2001]
13.f. Elements: (a) the time when the accused determined to
commit the crime, (b) an act manifestly indicating that the
accused clung to that determination, and (c) a lapse of time
between the determination and the execution sufficient to allow
the accused to reflect upon the consequences of the act. [Pp v.
Cortes, July 11, 2001]
13.g. The essence of premeditation is that the execution of
the act was preceded by cool thought and reflection upon the
resolution to carry out the criminal intent during a space of time

Page 67 of 161
sufficient to arrive at a calm judgment. [Pp v. PO3 Tan, et al., June
21, 2001]
13.h. To be considered, it is indispensable to show how and
when the plan to kill was hatched or how much time had elapsed
before it was carried out. Premeditation must be based on
external acts which must be notorious, manifest, and evident –
not merely suspecting – indicating deliberate planning. [PO3 Tan,
et al., supra]
13.i. Not appreciated where the felony was committed at the
spur of the moment or heat of anger. Except where there was
sufficient lapse of time between the determination and the
execution. [Moises Capalac, Oct. 23, 1982]

(14) That craft, fraud or disguise be employed.


14.a. Craft, fraud or disguise is a specie (identical in form))
of aggravating circumstance that denotes intellectual trickery or
cunning resorted to by an accused to aid in the execution of his
criminal design or to lure the victim into a trap and to conceal the
identity of the accused. [Pp v. Quiñola, May 5, 1999]
14.b. Sometimes considered as QUAC because deemed
treacherous, and therefore, absorbed in treachery.
14.c. These are separate aggravating circumstances.
14.d. CRAFT is chicanery [Intellectual trickery, by quibbling
(to evade the point in question; an evasion; a trivial point of
disagreement) or sophistry (fallacious reasoning), used to misled,
trick, or delude (New Webster’s Dictionary)], resorted to by the
accused to aid in the execution of his criminal design; it is
employed as a scheme in the execution of the crime. [Pp v. Zea,
et al., June 29, 1984]
14.e. Craft, appreciated as GAC. The accused and his
cohorts pretended to be bona fide passengers of the jeep in order
not to arouse suspicion. However, once inside the jeep, they
robbed the driver and the other passengers. [Pp v. Lee, Dec. 20,
1991] In Pp v. Daos, Apr. 27, 1934, co-existed with treachery
because they boarded the car, pretending to be bonafide
passengers then assaulted the victim from behind.
14.f. FRAUD is a false representation of a matter of fact,
whether by words or by conduct, by false or misleading
allegations, or by concealment of that which should have been
disclosed, which deceives and is intended to deceive another.
(Black’s Law Dictionary)
14.g. The Court considered DISGUISE as an aggravating
circumstance where the accused, wore masks to cover their faces
in order to conceal their identities. The fact that the mask
subsequently fell down thus paving the way for the accused's
Page 68 of 161
identification is immaterial. [Pp v. Cabato, April 18, 1988; citing
People v. Veloso, L-32900, Feb. 25, 1982, 112 SCRA 173, 182]

(15) [ABUSE OF SUPERIOR STRENGTH] (a) That advantage is


taken of superior strength, or (b) MEANS IS EMPLOYED TO
WEAKEN THE DEFENSE.
15.a. ABUSE OF SUPERIOR STRENGTH and AID OF
ARMED MEN, when present with TREACHERY are absorbed or
included in the latter. [Pp v. Ferrera, June 18, 1987]
15.b. The mere fact that there were two aggressors cannot
constitute per se abuse of superior strength in the absence of
evidence in the record of the relative physical strength of the
aggressors and the assaulted party. 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. Guns were used to commit the crime. Each of the two
defendants had a gun. It was not, therefore, necessary for them to
take advantage of superior strength to accomplish their purpose
of killing the victim. [Pp v. Talay, Nov. 28, 1980]
15.c. Superior strength is attendant in the commission of a
crime where the accused acted in concert to secure advantage in
their superiority in number. [Pp v. Rodico, Oct. 16, 1995]
15.d. Superior strength should be appreciated because of
the marked difference of physical strength between the offended
parties and the offender. Pp v. Gatcho, Feb. 26, 1981]
15. e. Abuse of superior strength requires, at base, a
deliberate intent on the part of the malefactor to take advantage
thereof. Besides the inequality of comparative force between the
victim and the aggressor, there must be a situation of strength
notoriously selected and made use of by the offender in the
commission of the crime. In this case, there were four (4)
malefactors including accused-appellant who was armed with a
bladed weapon when they attacked and ganged up on the
unarmed victim. It need not be overemphasized that there was a
blatant inequality of strength between the victim and his
assailants. [Pp v. Ortiz, July 7, 2001]
15.f. MEANS BE EMPLOYED TO WEAKEN THE
DEFENSE:
a. This is a QUAC, but considered inherent in the crime
of rape.
b. Appreciated where the victim was made to drink
intoxicating liquor in order to facilitate the commission of the
murder. [Pp v. Ducusin, August 8, 1929]

(16) That the act be committed with TREACHERY (alevosia).


Page 69 of 161
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.
16.a. There is treachery when the offender commits any of
the crimes against person, employing means, methods, or forms
in the execution thereof, which tend to directly and specially
insure the execution of the crime, without risk to himself arising
from the defense which the offended party might make. [Pp v.
Opuran, March 17, 2004]
16.b. Treachery absorbs abuse of superior strength. [Pp. v. Vera,
Aug. 18, 1999]. The circumstance of abuse of superior strength is
inherent in treachery [People vs. Renejane February 26, 1988]
16.c. The essence of treachery is the sudden and
unexpected attack by an aggressor on an unsuspecting victim,
depriving the latter of any real chance to defend himself, thereby,
ensuring its commission without risk to the aggressor, without the
slightest provocation on the part of the victim. Pp v. Macuha, July
16, 1999]
16.d. To appreciate treachery, two conditions must be
present, to wit: (1) the employment of means of execution that
give the person attacked no opportunity to defend himself or to
retaliate and (2) the means of execution were deliberately or
consciously adopted. [Pp v. Panida, et al., July 6, 1999; Pp v.
Flores, EN BANC, Feb. 5, 2004]
16.e. APPRECIATED:
a. When the victim was sleeping or had just awakened
when killed. [Pp v. Abolidor, Feb. 18, 2004]
b. The victim was only seven (7) years old. [Pp v.
Daliray, Jan. 26, 2004 (Note: killing a child of tender age is
treacherous. Treachery is indisputably presumed. [Pp v.
Caritativo, April 1, 1996] The killing of a 6-year old child by an
adult person is treacherous. (People vs. Sancholes, 271 SCRA
527 [1997]. N.B. Disregard of age is absorbed.

c. Where the assailants suddenly barged in and


immediately went on a shooting rampage. [Pp. v. Cachola, EN
BANC, Jan. 21, 2004]
d. Where the victim, a prisoner, was killed by a police
officer, while the former was inside the prison cell. The culprit
manhandled the victim and suddenly shot him. [Pp v. Brecinio,
March 17, 2004]

Page 70 of 161
16.f. Treachery may co-exist with evident premeditation. In
robbery with homicide, alevosia is to be regarded as a generic
aggravating circumstance only. [Pp v. Salvatierra, 257 SCRA 489]
16.g. Even if treachery becomes evident at a subsequent
stage, if it was not so at the start and the attack was continuous, it
cannot be considered in the judgment. [Pp v. Leal, June 29,
2001] Except where there was an efficient break or interruption in
the attack. Treachery must be present at the inception of the
attack. [Leal, supra.]
16.h. No treachery if the attack was committed at the spur of
the moment, or while the offender was being overwhelmed by
passion and obfuscation, because then there requisite that it was
purposely sought would be absent.

(17) That means is employed or circumstances brought about


which add IGNOMINY to the natural effects of the act.
17.a. Ignominy is a circumstance pertaining to the moral
order, which adds disgrace and obloquy to the material injury
caused by the crime. [Pp. v. Ralph Velez Diaz, Dec. 8, 1999]
17.b. This aggravating circumstance requires that the
offense be committed in a manner that tends to make its effects
more humiliating to the victim, that is, add to his moral suffering.
The ignominious act must be committed while the victim was
still alive. [Pp. Carmina, Jan. 28, 1991] That its commission was
purposely sought by the actor or that he deliberately employed
means to add ignominy to the natural effects of the crime
17.c. Where the victim was already dead when his body was
or a part thereof was dismembered, ignominy cannot be taken
against the accused. [Pp v. Cachola, (EN BANC), Jan. 21, 2004]
17.d. It has been held that where the accused in committing
the rape, used not only the missionary position, i.e. male superior,
female inferior but also the dog position as dogs do, i.e. entry
from behind, the aggravating circumstance of ignominy attended
the commission thereof. [Pp v. Siao, March 3, 2000; Pp v. Lao,
Dec. 9, 1999]
17.e. There is ignominy when the culprits successively raped
the daughter in one place and her mother in another place. [Pp v.
Velo, March 13, 1948]
17.d. This Court in previous rape cases, has held the
following circumstances ignominious:
(a) where the accused ordered the complainant to exhibit to them
her complete nakedness for about ten minutes before raping her;
(b) where the rape was committed by two or more persons in view
of one another;

Page 71 of 161
(c) where the sexual intercourse was performed in the "dog style"
position;
(d) and where the accused plastered mud on the victim's private
pArt.
(e) Ignominy was also present where the victim was pregnant and
whose pleas on that ground were ignored by the accused who
went on to force his lust on her. The accused then tied a banana
fiber around his penis and inserted it again into her vagina.
Thereafter, he pulled out his organ and forced the victim to suck it.
[Pp v. Bacule, Jan. 28, 2000]

(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.
18.a. But breaking of roof, or wall, or window, falls in the next
paragraph.
18.b. This is absorbed in the crime of Robbery with force
upon things.

(19) That as a means to the commission of a crime a wall,


roof, floor, door, or window be broken.
19.a. Absorbed in Robbery with force upon things, because
this crime may not be committed unless the culprits enter the
building unlawfully.
19.b. Appreciated, together with dwelling, in robbery with
homicide, because this kind of robbery may be committed outside
of he building.

(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).
20.a. The offender is of greater perversity if he takes
advantage of the youthfulness of a person in aiding him to commit
a crime.
20.b. NOT APPRECIATED --- The accused and his co-
conspirators used the jeep of the victim merely to facilitate their
escape. It was not intentionally sought to ensure the success of
their nefarious plan; and it was not shown that without the use of
the vehicle the offense charged could not have been committed.
[Pp v. Veloso, Feb. 25, 1982]
20.c. APPRECIATED --- Accused loaded their loot on board
a jeepney. [People vs. Moreno, March 22,1993.]

Page 72 of 161
(21) CRUELTY…. That the wrong done in the commission of the
crime be deliberately augmented by causing other wrong not
necessary for its commissions.
21.a. Cruelty refers to physical suffering of the victim
purposely intended by the offender. Hence, the wrong done must be
performed while the victim is still alive. For cruelty to exist, it must
be shown that the accused enjoyed and delighted in making the victim
suffer slowly and gradually, causing him unnecessary physical or moral
pain in the consummation of the act. [Pp v. Gatcho, Feb. 26, 1981]
21.b. But the number of wounds is not a test for determining
whether cruelty is present. The test is whether the accused
deliberately and sadistically augmented the victim's suffering.
Consequently, there must be proof that the victim was made to
agonize before he was killed. [Pp v. Panida, et al., July 6, 1999]
21.c. The fact that victim's decapitated body bearing forty-
three (43) stab wounds, twenty-four (24) of which were fatal, was
found dumped in the street is not sufficient for a finding of cruelty
where there is no showing that appellant, for his pleasure and
satisfaction, caused the victim to suffer slowly and painfully and
inflicted on him unnecessary physical and moral pain. Number of
wounds alone is not the criterion for the appreciation of cruelty as
an aggravating circumstance. Neither can it be inferred from the
mere fact that the victim's dead body was dismembered. [Pp v.
Ilaoa, June 16, 1994]
Chapter Five
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 is
(a) the spouse, (b) ascendant, (c) descendant, (d) legitimate,
natural, or adopted brother or sister, or (e) relative by affinity in the
same degrees of the offender.
The intoxication of the offender shall be taken into consideration
as
(a) a mitigating circumstances when the offender has committed a
felony in a state of intoxication, if the same is not habitual or not
subsequent to [after] the plan to commit said felony
(b) but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance.
Page 73 of 161
ANNOTATIONS
. RELATIONSHIP:

a. Relationship. Article 266-B, RPC, on Penalties, provides, viz:


xxx xxx xxx
The death penalty shall also be imposed if the crime of rape [First
kind --- with unlawful carnal knowledge] is committed with any of the
following aggravating/qualifying circumstances:
(1) When the victim is under eighteen [18] years of age and
the offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the common-
law spouse of the parent of the victim; xxx.

b. As a rule, relationship is held to be aggravating in crimes


against chastity, such as rape [See Art. 266-B, RPC] and acts of
lasciviousness, whether the offender is a higher or a lower degree
relative of the offended party. [Pp v. Catubig, Aug. 23, 2001]
N.B. --- Crimes against chastity: Adultery; concubinage; acts
of lasciviousness; seduction; corruption of minors; white slave trade; &
abduction.

c. See Art. 20 where relationship is exempting.

d. Relationship is exempting in Art. 332, viz:


Persons exempt from criminal liability. — No criminal,
but only civil liability, shall result from the commission of the
crime of theft, swindling or malicious mischief committed or
caused mutually by the following persons:
1. Spouses, ascendants and descendants, or
relatives by affinity in the same line.
2. The widowed spouse with respect to the property
which belonged to the deceased spouse before the same
shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and
sisters-in- law, if living together.
The exemption established by this article shall not be
applicable to strangers participating in the commission of the
crime.

e. In parricide, where relationship is an element, relationship is


not considered.

f. Art. 263 of the RPC provides:

Page 74 of 161
Serious physical injuries. — Any person who shall
wound, beat, or assault another, shall be guilty of the crime
of serious physical injuries and shall suffer:
1. The penalty of prision mayor, if in consequence of
the physical injuries inflicted, the injured person shall
become insane, imbecile, impotent, or blind;
2. The penalty of prision correccional in its medium
and maximum periods, if in consequence of the physical
injuries inflicted, the person injured shall have lost the use of
speech or the power to hear or to smell, or shall have lost an
eye, a hand, a foot, an arm, or a leg or shall have lost the
use of any such member, or shall have become
incapacitated for the work in which he was therefor habitually
engaged;
3. The penalty of prision correccional in its minimum
and medium periods, if in consequence of the physical
injuries inflicted, the person injured shall have become
deformed, or shall have lost any other part of his body, or
shall have lost the use thereof, or shall have been ill or
incapacitated for the performance of the work in which he as
habitually engaged for a period of more than ninety days;
4. The penalty of arresto mayor in its maximum
period to prision correccional in its minimum period, if the
physical injuries inflicted shall have caused the illness or
incapacity for labor of the injured person for more than thirty
days.
If the offense shall have been committed against any of
the persons enumerated in Article 246, or with attendance of
any of the circumstances mentioned in Article 248, the case
covered by subdivision number 1 of this Article shall be
punished by reclusion temporal in its medium and maximum
periods; the case covered by subdivision number 2 by
prision correccional in its maximum period to prision mayor
in its minimum period; the case covered by subdivision
number 3 by prision correccional in its medium and
maximum periods; and the case covered by subdivision
number 4 by prision correccional in its minimum and medium
periods.
The provisions of the preceding paragraph shall not be
applicable to a parent who shall inflict physical injuries upon
his child by excessive chastisement.

N.B. --- persons enumerated in Art. 246 --- Father, mother, or


child, whether legitimate or illegitimate, or any of his ascendants, or
descendants, or his spouse.
Page 75 of 161
g. The Child and Youth Welfare Code, P.D. 603:
Art. 59. Crimes. - Criminal liability shall attach to any
parent who:
(8) Inflicts cruel and unusual punishment upon the
child or deliberately subjects him to indignations and other
excessive chastisement that embarrass or humiliate him.

INTOXICATION:

a. For intoxication to be a mitigating circumstance, the following


conditions must be present:
(1) The same is not habitual or is not subsequent to [after] a
plan of the commission of a felony; otherwise, it is aggravating if it is
habitual and intentional; and
(2) The consumption of alcoholic drinks was in such quantity
as to blur the accused’s reason and deprive him of a certain degree of
control. [Pp. v. Muerong, July 6, 2001]
b. The accused pleading intoxication to mitigate penalty must
present proof:
[1] Of having taken a quantity of alcoholic beverage before
the commission of the crime;
[2] That the quantity taken was sufficient to produce the
effect of obfuscating reason.
[3] Of not being a habitual drinker and not taking the
alcoholic drink with the intention to reinforce his resolve to commit the
crime. [Pp v. Cortes, July 11, 2001]
d. When the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance. [Pp v. Bato, Dec. 15,
2000]
e. Intoxication was not habitual, considered mitigating. [Cortes,
supra.]

DEGREE OF INSTRUCTION AND EDUCATION/LACK OF


EDUCATION:

a. Lack of education must be proved positively and cannot be


based on mere deduction or inference.. Moreover, mere illiteracy is not
sufficient to constitute a mitigating circumstance. There must be also
lack of intelligence. [People vs. Retania, January 22, 1980, GRN L-
34841]

b. NOT APPRECIATED:
b.1. Where the accused has studied up to sixth grade, the
Court was of the opinion that it is more than sufficient schooling to give
Page 76 of 161
a person a degree of instruction as to properly apprise him of what is
right and Wrong. [People vs. Pujinio, et al., April 29, 1969]
b.2. As a Christian, accused cannot possibly be ignorant of
the fifth commandment (you shall not kill) or that it is contrary to natural
law to commit murder. [People vs. Laspardas, October 23, 1979]
b.3. Low degree of instruction and education are not
mitigating in crimes against chastity like rape. [Garganera vs. Jocson,
September 1, 1992]
b.4. Both accused finished elementary grades and,
therefore, were not illiterate. Although the criterion in determining lack
of education is not illiteracy alone, but lack of sufficient intelligence,
there is no showing that the accused were of such low mental capacity
that they had not realized the full significance of their acts. No one,
however unschooled he may be, is so ignorant as not to know that
theft or robbery, or assault upon the person of another is inherently
wrong and a violation of the law. [Pp v. Ang, Oct. 8, 1985]

c. APPRECIATED:
C.1. People vs. Mengote, July 25, 1975, Where the two
accused, who were ignorant non-Christian, entered a plea of guilty in
the crime of robbery with homicide. In its obiter, the Supreme Court
even extended the benefit to ignorant persons with little or no
education, who are unschooled and illiterate.
c.2. Where an accused has committed the crime of murder
and it appears that he lacks education and instruction for the reason
that he did not finish even the first grade in elementary school, the
mitigating circumstance of lack of education should be taken into
consideration.[Pp v. Limaco, Jan. 9, 1951]

Title Two
PERSONS CRIMINALLY LIABLE FOR FELONIES

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;
[Principal by direct participation] (actual perpetrator)
Page 77 of 161
2. Those who directly force or induce others to commit it;
[Principal by inducement]
3. Those who cooperate in the commission of the offense by
another act without which it would not have been accomplished.
[Principal by indispensable cooperation]

ANNOTATIONS
CONSPIRACY:

a. In conspiracy, the essential elements are: (1) concurrence of


wills; & (2) unity of action and purpose.
b. Conspiracy is incompatible with negligence [Pp. v. Abdona
Montilla, (CA) 52 O.G.4327

People vs. Marquita et al. March 1, 2000

As to the finding of conspiracy, we have said time


and again that the same degree of proof required for
establishing the crime is required to support a finding
of conspiracy. Conspiracy, like the crime itself, must be
proven beyond reasonable doubt and one's presence
in the crime scene does not make an accused a
conspirator [ People v. Desoy, G.R. No. 127754,
August 16, 1999, p. 16; People v. Abrera, 283 SCRA 1,
15 (1997)]. N.B. --- This is about passive presence, Pp
v. Madera, infra.
Conspiracy transcends mere companionship
[People v. Quinao, 269 SCRA 495, 510-511 (1997);
People v. Manuel, 234 SCRA 532, 542 (1994)].
Mere knowledge, acquiescence or approval of
the act, without cooperation or agreement to
cooperate, is not enough to constitute one a party to a
conspiracy. Likewise, there must be intentional
participation in the transaction with a view to the
furtherance (noun --- promotion; advancement) of the
common design (design --- plan; scheme; purpose;
intention) and purpose [People v. Aniel, 96 SCRA 199,
208 (1980); People v. Izon, et al., 104 Phil. 690, 698
(1958)].

People vs. Hatague April 7,1992

Conspiracy exists when two or more persons


come to an agreement concerning the commission of
a felony and decide to Commit it [Art. 8, RPC]. To
Page 78 of 161
establish conspiracy, prior agreement between both
accused to kill the victim is not essential for the same
may be inferred from their own acts showing a joint
purpose and design [People vs. Tachado, et al., 170
SCRA 611 (1989).].

People vs. Quiñones March 28, 1990

In a conspiracy, the act of one is the act of all and


every one of the conspirators is guilty with the others
in equal degree. Hence, every member of the group
that perpetrated the killing and robbery of the three
victims must suffer the same penalty prescribed by law
even if they had different modes of participation in the
commission of the crime [People vs. Salvador, 163
SCRA 574.].

People vs. Madera May 31, 1974

MERE PASSIVE PRESENCE AT THE SCENE


OF THE CRIME DID NOT MAKE APPELLANTS
MARIANITO ANDRES AND GENEROSO ANDRES
LIABLE.- The fact that appellants Marianito Andres
and Generoso Andres were standing behind appellant
Madera when the latter fired shots at Elino Bana, did
not make them liable for what Madera did, there being
no proof whatsoever of any conspiracy among the
three appellants. They were not armed. They did
nothing to help Madera. Their mere passive presence
at the scene of the crime did not make them liable
either as co-principals or accomplices.

INDICIA OF CONSPIRCY [ATM --- A B L E]


People vs. Casey, et al. February 24, 1981

Pursuant to this uniform and consistent


jurisprudence on the existence of conspiracy by the
mere proof of community of design and purpose on the
part of the accused, We hold that conspiracy exists in
this case. True enough that there is no direct evidence
showing that the accused had conspired together, but
their acts and the attendant circumstances disclose
that common motive that would make accused Ricardo
Felix as a co-principal with the actual slayer, Joseph
Casey.
Page 79 of 161
Without doubt, he performed overt acts in
furtherance of the conspiracy. In People vs. Peralta [25
SCRA 759]. it was held that such overt act may
consist in actively participating in the actual
commission of the crime, in lending moral
assistance to his coconspirators by being present
at the scene of the crime, or in exerting moral
ascendancy over the rest of the conspirators as to
move them to executing the conspiracy. In the case at
bar, Ricardo Felix's overt acts consist in instigating the
pursuit of the deceased, in firing a shot at him and in
giving Joseph Casey encouragement by his armed
presence while the latter inflicted the fatal wounds on
the deceased.

People vs. Peralta, et al. October 29, 1968,


25 SCRA 759

CONSPIRACY; DOCTRINE.- A conspiracy exists


when two or more persons come to an agreement
concerning the commission of a felony and decide to
commit it.
Generally, conspiracy is not a crime except when
the law specifically provides for a penalty therefore as
in treason, rebellion and sedition. The crime of
conspiracy known to the common law is not an
indictable offense in the Philippines. An agreement to
commit a crime is a reprehensible act from the
viewpoint of morality, but as long as the conspirators
do not perform overt acts in furtherance of their
malevolent design, the sovereignty of the State is not
outraged and the tranquility of the public remains
undisturbed.
However, when in resolute execution of a
common scheme, a felony is committed by two or
more malefactors, the existence of conspiracy
assumes pivotal importance in the determination of
liability of the perpetrators.

People vs. Dumayan May 21, 2001

There is no need to prove a previous agreement


among the malefactors to commit the crime if by their
overt acts, it is clear that they acted in concert in the
pursuit of their unlawful design. In this case, the
Page 80 of 161
malefactors’ actions of assisting one another in
simultaneously stabbing and inflicting wounds on the
victim are clear and indubitable proofs of a concerted
effort to bring about the death of the victim. There
being a conspiracy in the commission of the crime,
each of the conspirators, no matter how minimal his
participation in the crime, is guilty as principal
perpetrator thereof.

People vs. Lagarto y Petilla and Cordero y


Maristella
February 29, 2000

All these demonstrate that the prosecution


established beyond reasonable doubt that LAGARTO,
CORDERO, and Lagunday shared a common design
to rape and kill Angel Alquiza. Although there is no
direct proof of such unity of purpose, conspiracy was
properly appreciated in these premises by the trial
court because their individual acts, taken as a whole,
showed that they were acting in unison and
cooperation to achieve the same unlawful
objective.107.] Under these premises, it is not even
necessary to pinpoint the precise participation of each
of the accused, the act of one being the act of all.108;
People v. Pulusan, 290 SCRA 353 [1998]; People v.
Medina, 292 SCRA 436 [1998]; People v. Chua, 297
SCRA 229 [1998].] thus, the trial court correctly
observed that "conspiracy is established by the
concerted action of the accused in the commission of
the crime as well as in their concerted efforts after the
commission of the crime,"109 as when they attempt to
dispose of the body of the victim to hide their misdeed.
In the case at bar, the trial court found that
CORDERO, LAGARTO, and Lagunday acted in
concert to slay the victim and thereafter conceal her
body by wrapping it in a round yellow tablecloth,
putting it in a sack, and leaving it in the flooded street
of Del Pan. Jurisprudence constantly points out that
the conduct of the accused before, during, and after
the commission of the crime may be considered to
show an extant conspiracy.110.] Even if by Barlam's
testimony it would appear that only CORDERO raped
Angel, LAGARTO is still liable for the crime of rape
with homicide because where conspiracy is
Page 81 of 161
adequately shown, the precise modality or extent of
participation of each individual conspirator becomes
secondary. The applicable rule, instead, is that the act
of one conspirator is the act of all of them.111; People
v. Lising, 285 SCRA 595 [1998].

Pp v. Escober, Jan. 29, 1988

Clearly, Pelagio, having fled from the scene of the


robbery, had abandoned the conspiracy and
dissociated himself from his coconspirators even while
the robbery was still in process and certainly before
the unfortunate policeman arrived on the scene as the
robbers were about to escape in a taxi. Because of
such abandonment and dissociation, the conspiracy,
whatever may have been the subject thereof was over
and done with, so far as concerned Pelagio.
Abandonment and dissociation are clear equivalents of
efforts to prevent the homicide which, under
Macalalad, would exculpate one from liability for the
homicide but not for the robbery.

----------------------------------------------------------------------------------------------
---

TABULAR PRESENTATION:

PROVIDED THAT THE RAPE MERELY ACCOMPANIED THE


ROBBERY AND NOT IN FURTHERANCE OF OR PURSUANT TO
THE CONSPIRACY. ALSO, THE RAPE IS NOT A NECESSARY AND
LOGICAL CONSEQUENCE OF THE INTENDED CRIME.

A. CONSPIRACY:
All of these also apply to robbery with homicide. [See
concurring opinion of J. Gutierrez in the Escober case.]

1. XYZ --- CONSPIRED 2. XYZ CONSPIRED TO ROB.


TO ROB. XYZ –-- ROB
XYZ --- ROB XY --- RAPE “A”
XY --- RAPE “A” Z --- HAS KNOWLEDGE OF THE RAPE
Z --- NO KNOWLEDGE AND DID NOT ENDEAVOR TO
ABOUT THE RAPE – PREVENT
OR- HAS KNOWLEDGE ITS COMMISSION.
BUT ENDEAVORS TO
PREVENT ITS CRIME: XYZ --- ROBBERY WITH RAPE
Page 82 of 161
COMMISSION -OR- NO
CHANCE TO PREVENT
ITS COMMISSION, E.G.
BECAUSE OF
SUDDENNESS. [SEE:
OMPAD CASE]

CRIMES: XY ---
ROBBERY WITH RAPE
Z ---
ROBBERY ONLY

B: B A N D

1. WXYZ --- ROB 2. WXYZ --- ROB


WXY --- RAPE “A” WXY --- RAPE “A”
Z --- ENDEAVORS TO Z --- DID NOT ENDEAVOR TO
PREVENT THE RAPE. PREVENT
CRIMES: WXY --- THE RAPE. [WITH OR WITHOUT
ROBBERY W/ RAPE KNOWLEDGE IS IMMATERIAL
Z --- ROBBERY BECAUSE OF THE 2nd PAR. OF ART.
ONLY 296.]

CRIME: WXYZ --- ROBBERY W/ RAPE

AUTHORITIES

1. PP. VS. JUAN G. ESCOBER, ET AL., JAN. 29, 1988


2. PP. VS. SULPICIO DE LA CERNA, OCT. 30, 1967
3. U.S. VS. TIONGO, ET AL., MARCH 26, 1918
4. PP. VS. JUAN MORENO, MARCH 22, 1993
5. U.S. VS. JULIAN MACALALAD, OCT. 8, 1907
6. PP. VS. ADRIANO, 95 SCRA 107 [1980]
7. PP. VS. OMPAD, JAN. 31, 1969
8. PP. VS. VISCARRA, JULY 30, 1982 [SUDDENNESS OF THE
KILLING]
----------------------------------------------------------------------------------------------
---
PRINCIPAL BY INDUCEMENT:

a. REQUISITES of Inducement or Induction --- (1) that it be made


directly with the intention of procuring the commission of the crime; and
(2) that such inducement must be the determining cause (primary
Page 83 of 161
consideration) of the commission of the crime by the actual perpetrator.
[Pp v. Agapinay, 27 June 1990, See Aggravating Circumstance No. 11.]

b. If one induces another to commit a crime, the influence is the


determining cause of the crime. Without the inducement, the crime
would not have been committed. Indeed, the inducer sets into motion
the execution of the criminal act. Without the inducement, the actual
perpetrator would not have falsified the records. [Chua vs. CA, August
28, 1996]

c. For an act to be considered as direct inducement, it is


necessary that such advice or such words have a great dominance
and great influence over the person who acts. It is necessary that they
be as direct, as efficacious, as powerful as physical or moral coercion
or as violence itself. [Pp v. Indanan, Jan. 29, 1913]
Also, in Indanan, the Supreme Court cited some cases where the
act may not be considered as inducement as contemplated in Art. 17
(2), viz:

That one who during a riot in which a person was killed, said to
one of the combatants, "Stab him! Stab him!", it not appearing that he
did anything more than say these words except to be present at the
fight, was not guilty of the crime of homicide by inducement, the court
saying that, "considering that, although the phrases pronounced were
imprudent and even culpable, they were not so to the extent that they
may be considered the principal and moving cause of the effect
produced; direct inducement cannot be inferred from such phrases, as
inducement must precede the act induced and must be so
influential in producing the criminal act that without it the act would not
have been performed."
A person who advised a married woman whose husband was
very stingy and treated her badly that the only thing for her to do was
to rob him, was not guilty of the crime of robbery by inducement, for
the reason that imprudent and ill-conceived advice is not sufficient.
A father who simply said to his son who was at the time engaged
in combat with another, "Hit him! Hit him!", was not responsible for the
injuries committed after such advice was given, under the facts
presented. The court said: "It being held in mind that the inducement to
the commission of the crime by means of which a person may be
considered a principal in the same manner as he who executes the act
itself can only be founded in commands, sometimes in advice, in
considerations, or by inducement so powerful that it alone produces
the criminal act. "

Page 84 of 161
d. Where the alleged inducement to commit the crime was no
longer necessary to incite the assailant, the utterer cannot be held
accountable for the crime as a principal by inducement. [People vs.
Parungao November 28, 1996, EN BANC]

e. See par. 5 and 6 of Art. 12, viz: COMPULSION OF


IRRESISTIBLE FORCE & IMPULSE OF AN UNCONTROLLABLE
FEAR of an equal or greater injury where only the inducer is liable, the
actual perpetrator is exempted.

f. Where the manner, means, or form of executing the crime, e.g.,


with the use of explosive, by means of treachery, or with the use of a
motor vehicle, was never included in the inducement, such will not
affect the inducer. [People vs. Delfin, et al., July 31, 1961]

PRINCIPALS BY INDISPENSABLE COOPERATION:

a. To cooperate is to help, to aid; and necessarily presupposes,


knowledge of the ultimate purpose in view. To cooperate means to
desire or wish in common a thing.
However, that common will or purpose does not necessarily mean
a previous understanding. [Samson vs. Court of Appeals, et al., March
31, 1958] It can be inferred from the circumstances of each case. [Pp
v. Aplegido, et al., April 27, 1946]

b. APPRECIATED: when the victim was lying on the ground and


being raped by R, D held the hands of the victim without which rape
would not have been accomplished. [People v. Cortes, September 3,
1993]

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. [Accessories before the fact]

ANNOTATIONS
a. To hold a person liable as an accomplice, two elements must
be present: (1) the community of criminal design; that is, knowing the
criminal design of the principal by direct participation, he concurs with
the latter in his purpose; and (2) the performance of previous or
simultaneous acts that are not indispensable to the commission of the
crime. [Pp v. Vera, Aug. 18, 1999]

b. An accomplice does not enter into a conspiracy with the


principal by direct participation. He does not have previous agreement
or understanding with the principal to commit a crime. Nevertheless, he
Page 85 of 161
participates to a certain point in the common criminal design. [People
vs. Elefaño, Jr., et al., November 25, 1983]

c. To sum it up, the ELEMENTS would be: That he knowingly or


intentionally takes part in the execution of the crime by previous or
simultaneous acts, which are either moral or physical, but are not
indispensable in the commission of the crime. However, there should
be no conspiracy or previous agreement or understanding with the
principal to commit a crime. Otherwise, that would make him a co-
principal, a co-conspirator.
d. APPRECIATED: Pp v. Pastores, et al., Aug. 31, 1971 --- We
agree with defense counsel that the details of commission of the
offense do not satisfactorily support the finding of conspiracy,
particularly in view of the uncontradicted fact that the herein appellants
met the complainant Minda Reyes and her companion and friend,
Brillantes, purely by chance [Read: no conspiracy]. Whatever the
responsibility of Magat and Villar, it must be predicated on their action
in separating Brillantes from the complainant when all five had reached
the river dike, and thereafter preventing Brillantes from rendering aid to
Minda. While this act was undoubtedly one of help and cooperation.
We do not view it as indispensable, so that the rape could not have
been committed without the sequestration of Brillantes. It must be
recalled that at the grandstand, the latter proved no match for
Pastores, who boxed and effectively weakened Brillantes and further,
Pastores was then armed with a knife while Brillantes had no weapon.
xxx.
In People vs. Tamayo, 44 Phil. 38, the accused who stayed
outside the house while the others robbed and killed the victims, yet
had knowledge of the criminal intention of the other accused and only
went along with them was only convicted as an accomplice. In People
vs. Crisostomo (46 Phil. 775), three of the accused who held the
victim's companions to prevent the latter from rendering any help to the
victim who was being kidnapped were only convicted as accomplices,
even if circumstances indicated conspiracy among them, for their acts
were not indispensable to the realization of the crime. Well known is
the rule that in case of doubt as to the participation of an accused
the lesser liability should prevail.
Pp v. Chua Huy, Aug. 31, 1950 --- The participation in the
kidnapping consisted in guarding the victims to keep them from
escaping. This participation was simultaneous with the commission of
the crime if not with its commencement or previous thereto. Although
detention is an essential element of kidnapping, but the act of guarding
the victims was not indispensable to the end proposed. Therefore, they
are responsible as accomplices only.

Page 86 of 161
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:
[Accessories after the fact]
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 [any crime, except light felonies], provided
the accessory acts with abuse of his public functions or whenever
the author of the crime is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.
ANNOTATIONS

a. Who are accessories? They are neither principals nor


accomplices, but ---
1. Have knowledge of the commission of the crime;
2. Take part subsequent to its commission in any of the
following manner:
a. Profiting economically themselves or assisting the
offender to profit economically from the effects of the crime. [But the
principal may not be guilty because of exempting circumstance, e.g.,
minority or as in Art. 332, supra, page 70, on Relationship, Alternative
circumstances];
b. By concealing or destroying the body of the crime or
the effects or instruments thereof, in order to prevent its discovery;
c. By Concealing, Harboring, or Assisting in the escape
of the principal of the crime [any kind except light felonies] if he acts
with abuse of public functions or when the author of the crime is guilty
of Treason, Parricide, Murder, or an Attempt to take the life of the
president or is known to be Habitually guilty of some other crime. [Art.
19] ---- (For additional penalty, see Art. 58. See also Art. 208.) [ATM ---
Three Pretty Maids Always HIde]

Art. 58. Additional penalty to be


imposed upon certain accessories. — Those
accessories falling within the terms of paragraphs 3
of Article 19 of this Code who should act with abuse
of their public functions, shall suffer the additional
penalty of absolute perpetual disqualification if the
principal offender shall be guilty of a grave felony,
Page 87 of 161
and that of absolute temporary disqualification if he
shall be guilty of a less grave felony.

Art. 208. Prosecution of offenses; negligence


and tolerance. — The penalty of prision correccional
in its minimum period and suspension shall be
imposed upon any public officer, or officer of the law,
who, in dereliction of the duties of his office, shall
maliciously refrain from instituting prosecution for the
punishment of violators of the law, or shall tolerate
the commission of offenses. [Prevaricacion]

b. The phrase “Take part subsequent to its commission” clearly


suggests that accessories neither participate in the criminal design nor
in its commission.

c. No accessory in light crimes.

d. Related Special Laws are: PD 1829, Obstruction of Justice (16


Jan. 1981), and PD 1612, Anti-fencing, viz:

PRESIDENTIAL DECREE NO. 1829


Sec. 1.The penalty of prision correccional in its
maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who
knowingly or willfully obstructs, impedes, frustrates or
delays the apprehension of suspects and the
investigation and prosecution of criminal cases by
committing any of the following acts:
(a) preventing witnesses from testifying in any
criminal proceeding or from reporting the commission
of any offense or the identity of any offender/s by
means of bribery, misrepresentation, deceit,
intimidation, force or threats;
(b) altering, destroying, suppressing or
concealing any paper, record, document, or object,
with intent to impair its verity, authenticity, legibility,
availability, or admissibility as evidence in any
investigation of or official proceedings in, criminal
cases, or to be used in the investigation of, or official
proceedings in, criminal cases;
(c) harboring or concealing, or facilitating the
escape of, any person he knows, or has reasonable
ground to believe or suspect, has committed any
Page 88 of 161
offense under existing penal laws in order to prevent
his arrest prosecution and conviction;
(d) publicly using a fictitious name for the
purpose of concealing a crime, evading prosecution or
the execution of a judgment, or concealing his true
name and other personal circumstances for the same
purpose or purposes;
(e) delaying the prosecution of criminal cases
by obstructing the service of process or court orders or
disturbing proceedings in the prosecutor's offices, in
Tanodbayan, or in the courts;
(f) making, presenting or using any record,
document, paper or object with knowledge of its falsity
and with intent to affect the course or outcome of the
investigation of, or official proceedings in, criminal
cases;
(g) soliciting, accepting, or agreeing to accept
any benefit in consideration of abstaining from,
discounting, or impeding the prosecution of a criminal
offender;
(h) threatening directly or indirectly another
with the infliction of any wrong upon his person, honor
or property or that of any immediate member or
members of his family in order to prevent such person
from appearing in the investigation of, or official
proceedings in, criminal cases, or imposing a
condition, whether lawful or unlawful, in order to
prevent a person from appearing in the investigation of
or in official proceedings in, criminal cases;
(i)giving of false or fabricated information to
mislead or prevent the law enforcement agencies from
apprehending the offender or from protecting the life or
property of the victim; or fabricating information from
the data gathered in confidence by investigating
authorities for purposes of background information and
not for publication and publishing or disseminating the
same to mislead the investigator or to the court.
If any of the acts mentioned herein is penalized
by any other law with a higher penalty, the higher
penalty shall be imposed.
Sec. 2.If any of the foregoing acts is committed
by a public official or employee, he shall in addition to
the penalties provided there under, suffer perpetual
disqualification from holding public office.

Page 89 of 161
PRESIDENTIAL DECREE NO. 1612
Sec. 2.Definition of Terms. - The following terms
shall mean as follows:

a."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.

b."Fence" includes any person, firm, association


corporation or partnership or other organization
who/which commits the act of fencing.

Sec. 5.Presumption of Fencing. - Mere


possession of any good, article, item, object, or
anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of
fencing.

e. Concealing or Destroying the Body of the Crime:

1. Corpus delicti is the body of the crime and, in its primary


sense, means a crime has actually been committed. [People v.
Mantung, G.R. No. 130372, July 20, 1999, p. 11.] Applied to a
particular offense, it is the actual commission by someone of the
particular crime charged. In this case, aside from the extra-judicial
confessions, the police found the stolen goods, the murder
weapons, and the dead bodies, thereby conclusively establishing
the needed corroborating evidence of corpus delicti. [Pp v.
Moana, et al., June 8, 2000]

2. Corpus delicti means the "body or substance of the crime,


and, in its primary sense, refers to the fact that the crime has
been actually committed.” In theft, corpus delicti has two
elements, namely: (1) that the property was lost by the owner, and
(2) that it was lost by felonious taking. [Pp v. Tan, Aug. 26, 1999]

f. To hold the accessory liable, it should be established that the


principal committed a crime and that his guilt is directly related to said
crime. The accessory may still be held liable even when the principal is
not made criminally liable because of exempting circumstance, e.g.,
Page 90 of 161
minority or as in Art. 332, supra, page 40 (d) on Relationship,
Alternative circumstances.
However, there is no necessity that the principal must be
apprehended and tried, the accessory may be tried and convicted even
in the absence of the principal, provided the body or substance of the
crime is proved and his participation was established beyond
reasonable doubt. [Nueva, 74 O.G. 1424, Feb. 16, 1976]

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.
ANNOTATIONS
a. They are exempted from any liability provided they did not
economically profit or help the principal profit from the effects of the
crime.

b. However, even if they did not, they may still be made


liable under P.D. No. 1829, Obstruction of Justice, supra. See also Art.
208 --- Prosecution of offenses; negligence and tolerance. — The
penalty of prision correccional in its minimum period and suspension
shall be imposed upon any public officer, or officer of the law, who, in
dereliction of the duties of his office, shall maliciously refrain from
instituting prosecution for the punishment of violators of the law, or
shall tolerate the commission of offenses.
.

Title Three
PENALTIES
Chapter One
PENALTIES IN GENERAL

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 with the limitation re “ex post facto
law.” See also the other limitations found on page 1.]

Art. 22. Retroactive effect of penal laws. — Penal Laws shall


have a retroactive effect insofar as they favor the persons guilty of a
felony, who is not a habitual criminal, as this term is defined in Rule 5
of Article 62 of this Code, although at the time of the publication of
Page 91 of 161
such laws a final sentence has been pronounced and the convict is
serving the same. [See page 6 on IRRETROSPECTIVITY OR
PROSPECTIVITY ]

ANNOTATIONS

a. Also applies to special laws. [EN BANC, G.R. No. L-17905


January 27, 1923, THE PEOPLE OF THE PHILIPPINE ISLANDS,
plaintiff-appellee, vs. JUAN MORAN, FRUCTUOSO CANSINO, and
HILARIO ODA, defendants-appellants.]

b. Art. 22 refers to substantive penal laws. It does not apply to


procedural rule of evidence involving the incompetency and
inadmissibility of confessions in the constitution, and therefore cannot
be included in the term "penal laws." Also, because constitutional
provisions as a rule should be given a prospective effect. [EN BANC,
March 3, 1975, MAGTOTO vs. MANGUERA et al.]

c. As regards jurisdiction of a court to try criminal cases,


retroactivity does not apply.

Art. 23. Effect of pardon by the offended party. — A pardon of


the offended party does not extinguish criminal action except as
provided in Article 344 of this Code; but civil liability with regard to the
interest of the injured party is extinguished by his express waiver.

a. Article 344, RPC:

Prosecution of the crimes of adultery,


concubinage, seduction, abduction, rape and acts of
lasciviousness. — The crimes of adultery and
concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. [N.B. --- the
pardon must be made before the filing of the case.]
The offended party cannot institute criminal
prosecution without including both the guilty parties, if
they are both alive, nor, in any case, if he shall have
consented or pardoned the offenders.
The offenses of seduction, abduction, rape or
acts of lasciviousness, shall not be prosecuted except
upon a complaint filed by the offended party or her
parents, grandparents, or guardian, nor, in any case, if
the offender has been expressly pardoned by the
above named persons, as the case may be.

Page 92 of 161
In cases of seduction, abduction, acts of
lasciviousness and rape, the marriage of the offender
with the offended party shall extinguish the criminal
action or remit the penalty already imposed upon him.
The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and
accessories after the fact of the above-mentioned
crimes.

RPC, Art. 89. How criminal liability is totally


extinguished. — Criminal liability is totally
extinguished:
(7) By the marriage of the offended woman, as
provided in Article 344 of this Code.

b. However, see R.A. No. 8353, The Anti-Rape Law of 1997,


which repealed Art. 335 of the RPC. Rape is now considered as a
crime against persons, therefore, being a public crime, may now be
prosecuted de officio. Article 266-C of the said law provides:

Effect of Pardon. --- The subsequent valid


marriage between the offender and the offended party
shall extinguish the criminal action or the penalty
imposed.
In case it is the legal husband who is the
offender, the subsequent forgiveness by the wife as
the offended party shall extinguish the criminal action
or the penalty: Provided, That the crime shall not be
extinguished or the penalty shall not be abated if the
marriage is void ab initio.

Art. 24. Measures of prevention or safety, which neither are nor


considered penalties. — The following shall not be considered as
penalties:
1. The arrest and temporary detention of accused persons, as
well as their detention by reason of insanity or imbecility, or illness
requiring their confinement in a hospital.
2. The commitment of a minor to any of the institutions
mentioned in Article 80 and for the purposes specified therein.
3. Suspension from the employment of public office during the
trial or in order to institute proceedings.
4. Fines and other corrective measures which, in the exercise
of their administrative disciplinary powers, superior officials may
impose upon their subordinates.

Page 93 of 161
5. Deprivation of rights and the reparations, which the civil
laws, may establish in penal form.
Chapter Two
CLASSIFICATION OF PENALTIES

Art. 25. Penalties which may be imposed. — The penalties


which may be imposed according to this Code, and their different
classes, are those included in the following:
Scale
PRINCIPAL PENALTIES
Capital punishment:
Death.
Afflictive penalties:
Reclusion perpetua, [R.A. 7659 --- 20 Y, 1 D to 40 Y, but still
considered indivisible.]
Reclusion temporal,
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor.
Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
Light penalties:
Arresto menor,
Public censure.
Penalties common to the three preceding classes:
Fine, and
Bond to keep the peace.
ACCESSORY PENALTIES
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Suspension from public office, the right to vote and be voted for,
the profession or calling.
Civil interdiction,
Indemnification,
Forfeiture or confiscation of instruments and proceeds of the
offense,
Payment of costs.

Art. 26. When afflictive, correctional, or light penalty. — A fine,


whether imposed as a single or as an alternative penalty, shall be
considered an afflictive penalty, if it exceeds 6,000 pesos; a

Page 94 of 161
correctional penalty, if it does not exceed 6,000 pesos but is not less
than 200 pesos; and a light penalty if it less than 200 pesos.

Chapter Three
DURATION AND EFFECTS OF PENALTIES
Section One. — Duration of Penalties

Art. 27. Reclusion perpetua. — The penalty of Reclusion


Perpetua shall be from twenty years and one day to forty years. [NOTE
--- Section 10, Rule 122, Rules of Criminal Procedure: Automatic
review to the Court of Appeals]
Reclusion temporal. — The penalty of reclusion temporal shall be
from twelve years and one day to twenty years.
Prision mayor and temporary disqualification. — The duration of
the penalties of prision mayor and temporary disqualification shall be
from six years and one day to twelve years, except when the penalty of
disqualification is imposed as an accessory penalty, in which case its
duration shall be that of the principal penalty.
Prision correccional, suspension, and destierro. — The duration
of the penalties of prision correccional, suspension and destierro shall
be from six months and one day to six years, except when suspension
is imposed as an accessory penalty, in which case, its duration shall be
that of the principal penalty.
Arresto mayor. — The duration of the penalty of arresto mayor
shall be from one month and one day to six months.
Arresto menor. — The duration of the penalty of arresto menor
shall be from one day to thirty days.

Bond to keep the peace. — The bond to keep the peace shall be
required to cover such period of time as the court may determine.

Art. 28. Computation of penalties. — If the offender shall be in


prison, the term of the duration of the temporary penalties shall be
computed from the day on which the judgment of conviction shall have
become final.
If the offender was not in prison, the term of the duration of the
penalty consisting of deprivation of liberty shall be computed from the
day that the offender is placed at the disposal of the judicial authorities
for the enforcement of the penalty. The duration of the other penalties
shall be computed only from the day on which the defendant
commences to serve his sentence.
Art. 29. (R.A. 10592, MAY 29, 2013) “ART. 29. Period of preventive
imprisonment deducted from term of imprisonment. – Offenders or accused who
Page 95 of 161
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.”
Sec. 2 — Effects of the penalties according to their respective nature

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 employment’s 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 employment’s 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
Page 96 of 161
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 employment’s
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 office or to be
elected to such office. Moreover, the offender shall not be permitted to
hold any public office during the period of his disqualification.

Art. 33. Effects of the penalties of suspension from any public


office, profession or calling, or the right of suffrage. — The suspension
from public office, profession or calling, and the exercise of the right of
suffrage shall disqualify the offender from holding such office or
exercising such profession or calling or right of suffrage during the term
of the sentence.
The person suspended from holding public office shall not hold
another having similar functions during the period of his suspension.

Art. 34. Civil interdiction. — Civil interdiction shall deprive the


offender during the time of his sentence of the rights of parental
authority, or guardianship, either as to the person or property of any
ward, of marital authority, of the right to manage his property and of the
right to dispose of such property by any act or any conveyance inter
vivos.

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.
The court shall determine, according to its discretion, the period of
duration of the bond.
Should the person sentenced fail to give the bond as required he
shall be detained for a period which shall in no case exceed six

Page 97 of 161
months, if he shall have been prosecuted for a grave or less grave
felony, and shall not exceed thirty days, if for a light felony.

Art. 36. Pardon; its effect. — A pardon shall not work the
restoration of the right to hold public office, or the right of suffrage,
unless such rights be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of
the civil indemnity imposed upon him by the sentence.

People vs. Salle, Jr.


[GRN 103567 December 4, 1995]
A judgment of conviction becomes final
(a) when no appeal is seasonably perfected,
(b) when the accused commences to serve the sentence,
(c) when the right to appeal is expressly waived in writing, except
where the death penalty was imposed by the trial court, and
(d) when the accused applies for probation, thereby waiving his
right to appeal.
Where the judgment of conviction is still pending appeal and has
not yet therefore attained finality, as in the instant case, executive
clemency may not yet be granted to the appellant.

Art. 37. Cost. — What are included. — Costs shall include fees
and indemnities in the course of the judicial proceedings, whether they
be fixed or unalterable amounts previously determined by law or
regulations in force, or amounts not subject to schedule.

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.

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 (Amended by RA 10159, April 10, 2012):
:
1. If the principal penalty imposed be prision correccional or
arresto and fine, he shall remain under confinement until his fine
Page 98 of 161
referred to in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third 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 imposed is higher than prision
correccional, 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,
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.
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 RA 5465, April 21, 1969.)
Section Three. — Penalties in which other accessory
penalties are inherent

Art. 40. Death — Its accessory penalties. — The death penalty,


when it is not executed by reason of commutation or pardon shall carry
with it that of perpetual absolute disqualification and that of civil
interdiction during thirty years following the date sentence, unless such
accessory penalties have been expressly remitted in the pardon.

Art. 41. Reclusion perpetua and reclusion temporal. — Their


accessory penalties. — The penalties of reclusion perpetua and
reclusion temporal shall carry with them that of civil interdiction for life
or during the period of the sentence as the case may be, and that of
perpetual absolute disqualification which the offender shall suffer even
though pardoned as to the principal penalty, unless the same shall
have been expressly remitted in the pardon.

Art. 42. Prision mayor — Its accessory penalties. — The


penalty of prision mayor, shall carry with it that of temporary absolute
disqualification and that of perpetual special disqualification from the
right of suffrage which the offender shall suffer although pardoned as
to the principal penalty, unless the same shall have been expressly
remitted in the pardon.

Page 99 of 161
Art. 43. Prision correccional — Its accessory penalties. — The
penalty of prision correccional shall carry with it that of suspension
from public office, from the right to follow a profession or calling, and
that of perpetual special disqualification from the right of suffrage, if the
duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in the article although
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon.

Art. 44. Arresto — Its accessory penalties. — The penalty of


arresto shall carry with it that of suspension of the right to hold office
and the right of suffrage during the term of the sentence.

Art. 45. Confiscation and forfeiture of the proceeds or


instruments of the crime. — Every penalty imposed for the commission
of a felony shall carry with it the forfeiture of the proceeds of the crime
and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be property of a third
person not liable for the offense, but those articles which are not
subject of lawful commerce shall be destroyed.
Chapter Four
APPLICATION OF PENALTIES
Section One. — Rules for the application of penalties to the persons
criminally liable and for the graduation of the same.

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 felony in general terms, it
shall be understood as applicable to the consummated felony.

Art. 47. In what cases the death penalty shall not be imposed.
— The death penalty shall be imposed in all cases, in which it must be
imposed under existing laws, except in the following cases:
1. When the guilty person is more than seventy years of age.
2. When upon appeal or revision of the case by the Supreme
court, all the members thereof are not unanimous in their voting
as to the propriety of the imposition of the death penalty. For the
imposition of said penalty or for the confirmation of a judgment of
the inferior court imposing the death sentence, the Supreme
Court shall render its decision per curiam, which shall be signed
by all justices of said court, unless some member or members
thereof shall have been disqualified from taking part in the
consideration of the case, in which even the unanimous vote and
Page 100 of 161
signature of only the remaining justices shall be required. [DEATH
PENALTY NO LONGER EXISTS]

Art. 48. Penalty for complex crimes. — When a single act


constitutes two or more grave or less grave felonies, or when an
offense [should be --- felony] 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.

a. Mala prohibita are excluded. (But se Pp v. Malinao, 16


Feb. 2004 as regards delito complejo)
b. The case of Pp v. De los Santos, March 27, 2001
jettisoned Lontok, Jr. v. Gorgonio, April 30, 1979]

Pp v. De los Santos, March 27, 2001

Article 48 of the Revised Penal Code provides that when the


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. Since Article 48 speaks of felonies, it is
applicable to crimes through negligence in view of the definition of
felonies in Article 3 as “acts or omissions punishable by law” committed
either by means of deceit (dolo) or fault (culpa). In Reodica v. Court of
Appeals, we ruled that if a reckless, imprudent, or negligent act results
in two or more grave or less grave felonies, a complex crime is
committed. Thus, in Lapuz v. Court of Appeals, the accused was
convicted, in conformity with Article 48 of the Revised Penal Code, of
the complex crime of “homicide with serious physical injuries and
damage to property through reckless imprudence,” and was sentenced
to a single penalty of imprisonment, instead of the two penalties
imposed by the trial court. Also, in Soriao v. Court of Appeals, the
accused was convicted of the complex crime of “multiple homicide with
damage to property through reckless imprudence” for causing a motor
boat to capsize, thereby drowning to death its twenty-eight
passengers.
The slight physical injuries caused by GLENN to the ten other
victims through reckless imprudence, would, had they been intentional,
have constituted light felonies. Being light felonies, which are not
covered by Article 48, they should be treated and punished as
separate offenses. Separate informations should have, therefore,
been filed.

c. Since Article 48 speaks of felonies, it is applicable to


crimes through negligence in view of the definition of felonies in Article
Page 101 of 161
3 as “acts or omissions punishable by law” committed either by means
of deceit (dolo) or fault (culpa). [Pp v. De los Santos, 27 March 2001]

d. Does not apply to special complex crime, e.g., Robbery


with Homicide or Rape with Homicide, because the specific article itself
provides for the penalty.

e. KINDS: where the single act constitutes two or more


grave or less grave felonies (delito compuesto); and second, when the
felony is a necessary means for committing the other (delito complejo)
and/or complex proper. [People vs. Tabaco, GRN 100382-100385,
March 19, 1997]
1. Compound (DELITO COMPUESTO) --- When a
single act constitutes two or more grave or less grave felonies, id est,
grave felony + grave felony; less grave felony + less grave felony;
grave felony + less grave felony; less grave felony + grave felony.
2. Complex proper (DELITO COMPLEJO) --- When a
felony, which is either grave or less grave, is committed as a necessary
means to commit another felony, which is also either grave or less
grave.
f. [Concept of] DELITO CONTINUADO [Continuing Crime] It
is not a complex crime. It is a single felony or offense consisting of a
series of acts arising from one criminal resolution. It also applies to
crimes mala prohibita.

PP, appellee, vs. JOHNNY MALINAO Y NOBE, appellant.,


G.R. No. 128148, 2004 Feb 16, En Banc)
N.B. --- BUT see P.D. 1866 as amended by R.A. 8294
On the first question, it is true that from the theoretical concept of
the requisite mens rea, the killing as the result of the criminal design
arose from a specific criminal intent, that is, the animus interficendi or
intent to kill. The illegal possession of the firearm requires a discrete
and specific intent to possess the weapon, which is the animus
possidendi, coupled with the physical possession thereof.

It would, therefore, appear at first blush that the two offenses


having arisen from different criminal intents, this would be, under the
philosophical bases for concurso de delitos, a case of material or real
plurality under which different crimes have been committed and for
each of which a separate criminal liability attaches. The flaw in this
approach, however, is that although two crimes have been committed,
they are not altogether separate or disconnected from each other both
Page 102 of 161
in law and in fact. The illegally-possessed firearm having been the
weapon used in the killing, the former was at least the necessary,
although not an indispensable, means to commit the other.

The situation thus borders closer to the concept of a complex


crime proper, technically known as a delito complejo, rather than to the
postulate of two separate crimes. It is true that former doctrines were
to the effect that there can be no complex crime where one of the
component offenses is punished by a special law. The rationale
therefore was that in a complex crime, Article 48 of the Code
prescribes that the penalty shall be for the gravest offense to be
applied in its maximum period. Since, at that time, the penalties for
crimes provided in special laws were not divided into periods, it would
be impossible to apply Article 48.

The ratiocination no longer applies now, specifically with respect


to the case at bar, since the penalties in Presidential Decree No. 1866
were all taken from the scale of penalties in the Code. The only
possible difficulty in this novatory approach would be on the first kind of
complex crime, that is, the delito compuesto since it exists “(w)hen a
single act constitutes two or more grave or less grave felonies.” The
use of that particular term for the delicts committed bars the application
of that form of complex crime to offenses under Presidential Decree
No. 1866, since “felonies” are offenses provided and defined in the
Code.

That objection would not, however, apply to a delito complejo


since it is sufficient therefore that “an offense is a necessary means for
committing the other.” By these considerations, however, the writer
does not mean to imply that a killing through the use of an illegally-
possessed firearm is a delito complejo under Article 48 of the Code. As
was carefully stated, such an offense merely borders closer to or
approximates the concept of a delito complejo, but it thereby
emphasizes the thesis that the offenses should not be considered as
separate crimes to be individually punished under the principle of
material plurality.

Pp vs. Ricafranca, January 28, 2000

"The violation of P.D. No. 1866 should have been


punished separately conformably with our ruling in
People vs. Quijada. Nevertheless, fortunately for
appellant Rex Bergante, P.D. No. 1866 was recently
amended by Republic Act No 8294, otherwise known
as ‘An Act Amending the Provisions of Presidential
Page 103 of 161
Decree No. 1866, as Amended.’ The third paragraph of
Section 1 of said Act provides that ‘if homicide or
murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.’ In short,
only one offense should be punished, viz., either
homicide or murder, and the use of the unlicensed
firearm should only be considered as an
aggravating circumstance. Being favorable to Rex
Bergante, this provision may be given retroactive
effect pursuant to Article 22 of the Revised Penal
Code, he not being a habitual criminal."

Santiago v. Garchitorina, G.R. 109265, 02 Dec. 1993

According to Cuello Calon, for delito continuado to exist


there should be
(1) A plurality of acts performed during a period of time;
(2) Unity of penal provision violated; and
(3) Unity of criminal intent or purpose
This means that two or more violations of the same
penal provisions are united in one and the same intent or
resolution leading to the perpetration of the same criminal
purpose or aim. (11 Derecho Penal, p. 520; 1 Aquino,
Revised Penal Code, 630, 1987 ed)
Applying the concept of delito continuado, we treated
as constituting only one offense the following cases:
(1) The theft of 13 cows belonging to two different
owners committed by the accused at the same place and at
the same period of time (People v. Tumlos, 67 Phil. 320
[1939).
(2) The theft of six roosters belonging to two different
owners, from the same coop and at the same period of time
(People v. Jaranillo, 55 SCRA 563).
(3) The theft of two roosters in the same place and on
the same occasion (People v. De Leon, 49 Phil. 437 (1926]).
(4) The illegal charging of fees for services rendered by
a lawyer every, time he collects veteran's benefits on behalf
of a client, who agreed that the attorneys fees shall be paid
out of said benefits, (People v. Sabbun, 10 SCRA 156
[1964]). The collections of the legal fees were impelled by
the same motive, that of collecting fees for services
rendered, and all acts of collection were made under the

Page 104 of 161


same criminal impulse (People v. Lawas, 97 Phil. 975
[1955]).
On the other hand, we declined to apply the concept to
the following cases:
(1) Two Estafa cases, one of which was committed
during the period from January 19 to December 1955 and
the other from January 1956 to July 1956 (People v.
Dichupa, 113 Phil. 306 [1961] said acts were committed on
two different occasions.
(2) Several malversations committed in May, June, and
July 1936, and falsifications to conceal the said offenses
committed in August and October 1936, the malversations
and falsifications were not the result of only one purpose or
of only one resolution to embezzle and falsify. x x x " (People
v. Cid, 66 Phil. 354 [1938]).
(3) Two Estafa cases, one committed in December
1963 involving the failure of the collector to turn over the
installment for a radio and the other in June 1964 involving
the pocketing of the installments for a sewing machine
(People v. Ledesma, 73 SCRA 77 [1976]).
(4) 75 Estafa, cases committed by the conversion by
the agent of collection from the customer of the employee
made on different dates (Gamboa v. Court of Appeals, 68
SCRA 308 ([1975])
The concept of delito continuado, although an outcrop
of the Spanish Penal Code, has been applied to crimes
penalized under special laws, e.g. violation of R.A. No. 145
penalizing the charging of fees for services rendered
following up claims for war veteran's benefits (People v.
Sabbun, 10 SCRA 156 [1964]).
Under Article 10 of the Revised Penal Code, the Code
shall be supplementary to special laws, unless the latter
provide the contrary. Hence, legal principles developed from
the Penal Code may be applied in a supplementary capacity
to crimes punished under special laws.
The question of whether a series of criminal acts over a
period of time creates a single offense or separate offenses has
troubled also American Criminal Law and perplexed American
courts as shown by the several theories that have evolved in theft
cases.
The trend in theft cases is to follow the so-called "single
larceny" doctrine, that is, the taking of several things,
whether belonging to the same or different owners, at the
same time and place constitutes but one larceny. Many
courts have abandoned the "separate larceny doctrine,"
Page 105 of 161
under which there was a distinct larceny as to the property of
each victim. Also abandoned was the doctrine that the
government has the discretion to prosecute the accused for
one offense or for as many distinct offenses as there are
victims (ANNOTATIONS, 37 ALR 3rd 1407, 1410-1414).
The American courts following the "single larceny" rule,
look at the commission of the different criminal acts as but
one continuous act involving the same "transaction" or as
done on the same "occasion" (State v. Sampson, 157 Iowa
257, 138 NW 473; People v. Johnson, 81 Mich. 573,45 NW
1119; State v. Larson, 85 Iowa 659, 52 NW 539).
An American court held that a contrary rule would
violate the constitutional guarantee against putting a man in
jeopardy twice for the same offense (ANNOTATIONS, 28
ALR 2d 1179). Another court observed that the doctrine is a
humane rule, since if a separate charge could be filed for
each act, the accused may be sentenced to the penitentiary
for the rest of his life (ANNOTATIONS, 28 ALR 2d 1179).
Compound (delito compuesto)

a. Art. 48 APPLIES: Pp v. Pama, [C.A.] 44 O.G. 3339 (1947)


--- Only one and the same bullet killed two (2) persons – Double
Homicide.

Pp v. Macagaling, October 3, 1994 --- Shooting someone,


but missed, instead the bullet hit another person who subsequently
died. --- Homicide with attempted homicide.

Pp v. de Leon, 49 Phil. 237, [citing decisions of the Supreme


Court of Spain of November 2,1898, October 4, 1905] it has been held
that the act of taking two roosters belonging to two different persons in
the same place and on the same occasion cannot give rise to two
crimes having an independent existence of their own, because there
are not two distinct appropriations nor two intentions that characterize
two separate crimes.

Pp v. Guillen, 47 O.G. No. 7, 3433, --- a single act, that of


throwing a highly explosive hand grenade, resulting in the death of one
victim and in physical injuries on others.

b. DOES NOT APPLY: Pp v. Desierto, [C.A.] 45 O.G. 4542


(1948) --- where the death of several persons were caused by a single
act of the accused. Because although the burst of shots was caused
by a single act of pressing the trigger of the sub-machine gun, in view
Page 106 of 161
of its special mechanism, the person firing it has only to keep pressing
the trigger and it would fire continually. Therefore, it is not the act of
pressing the trigger that produced the several felonies, but the number
of bullets that actually produced them.

Pp v. Tabaco, GRN 100383-100385, March 1997 --- When


various victims were injured from separate shots, such acts constitute
separate and distinct crimes. In order that the first part of Art. 48 should
apply, there must be a singularity of criminal act; singularity of criminal
impulse is not written into the law.

People vs. Mision, February 26, 1991 --- Where the accused
stabbed the two victims who were separated by a distance of three (3)
meters from each other.

Pp v. Pacificador, 6 Feb. 2002: As the multiple murder and


frustrated murder resulted from the firing of several shots against the
eight (8) victims, the crimes are not complex.

Complex proper (delito complejo)

a. “Necessary means” --- In Pp v. Salvilla, 26 April 1990,


the Supreme Court stated: The term "necessary means'' does not
connote indispensable means for if it did, then the offense as a
"necessary means" to commit another would be an indispensable
element of the latter and would be an ingredient thereof. The phrase
"necessary means" merely signifies that one crime is committed to
facilitate and insure the commission of the other (Aquino, Revised
Penal Code, Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J.,
Amado Hernandez, 99 Phil. 515).
Illustrations: (1) Falsifying a public document, e.g., Deed of Sale
in order to commit Estafa. (2) Falsifying a commercial document, e.g.,
Bill of Ladings in order to commit Estafa. (3) Direct assaults with less
serious physical injuries where the victim is an agent of a person in
authority. (4) Falsification of public document in order to commit
malversation. (5) Forcible abduction with rape.

KIDNAPPING, CASE: Pp v. Ramos, 12 Oct. 1998; Cited in


Pp v. Rimorin, et al., 16 May 2000

Prior to 31 December 1993, the date of effectivity of RA


No. 7659, the rule was that where the kidnapped victim was
subsequently killed by his abductor, the crime committed
would either be a complex crime of kidnapping with murder
under Art. 48 of The Revised Penal Code, or two (2)
Page 107 of 161
separate crimes of kidnapping and murder. Thus, where the
accused kidnapped the victim for the purpose of killing him,
and his abductor in fact killed him, the crime committed was
the complex crime of kidnapping with murder under Art. 48 of
The Revised Penal Code, as the kidnapping of the victim
was a necessary means of committing the murder. On the
other hand, where the victim was kidnapped not for the
purpose of killing him but was subsequently slain as an
afterthought, two (2) separate crimes of kidnapping and
murder were committed.
However, RA No. 7659 amended Art. 267 of The
Revised Penal Code by adding thereto a last paragraph,
which provides -
When the victim, is killed or dies as a consequence of
the detention, or is raped, or is subjected to torture or
dehumanizing acts, the maximum penalty shall be imposed.
This amendment introduced in our criminal statutes the
concept of "special complex crime" of kidnapping with
murder or homicide. It effectively eliminated the distinction
drawn by the courts between those cases where the killing of
the kidnapped victim was purposely sought by the accused,
and those where the killing of the victim was not deliberately
resorted to but was merely an afterthought. Consequently,
the rule now is: Where the person kidnapped is killed in the
course of the detention, regardless of whether the killing was
purposely sought or was merely an afterthought, the
kidnapping and murder or homicide can no longer be
complexed under Art. 48, nor be treated as separate crimes,
but shall be punished as a special complex crime under the
last paragraph of Art. 267, as amended by RA No. 7659.
b. In People v. Jose, et al., G.R. No. L- 28232, Feb. 6, 1971,
37 SCRA 450, where the four accused forcibly abducted Maggie de la
Riva and each of them raped her, this Court held 'that even while the
first act of rape was being performed, the crime of forcible abduction
had already been consummated, so that each of the three succeeding
crimes of the same nature can not legally be considered as still
connected with the abduction - in other words, they should be
detached, from and considered independently of, that of forcible
abduction and, therefore, the former can no longer be complexed with
the latter." [Pp v. Tami, May 2, 1995]

c. No complex crime of Estafa thru falsification of a private


document, e.g., receipts used by a private business enterprise
because the elements of damage are the same to both felony.

Page 108 of 161


d. Rebellion may not be complex with common crimes
because of the absorption doctrine. Common crimes committed not in
furtherance of rebellion are treated as separate and distinct felonies.

Art. 49. Penalty to be imposed upon the principals when the


crime committed is different from that intended. — In cases in which
the felony committed is different from that which the offender intended
to commit, the following rules shall be observed:
1. If the penalty prescribed for the felony committed be higher
than that corresponding to the offense, which the accused intended to
commit, the penalty corresponding to the latter shall be imposed in its
maximum period.
2. If the penalty prescribed for the felony committed is lower
than that corresponding to the one, which the accused intended to
commit, the penalty for the former shall be imposed in its maximum
period.
3. The rule established by the next preceding paragraph shall
not be applicable if the acts committed by the guilty person shall also
constitute an attempt or frustration of another crime, if the law
prescribes a higher penalty for either of the latter offenses, in which
case the penalty provided for the attempted or the frustrated crime
shall be imposed in its maximum period.

ANNOTATIONS
a. ABERATIO ICTUS --- which means mistake in the blow,
characterized by aiming at one but hitting the other due to imprecision
in the blow. [Pp v. Sabalones, et al., 31 Aug. 1998]

b. PRAETER INTENTIONEM --- See also Par. 3, Art. 13,


lack of intent to commit so grave a wrong.

c. ERROR EN PERSONAE --- Mistake in the identity.


[Evident premeditation does not apply in error en personae, but it does
apply in treachery.]

d. The preceding paragraphs (a), (b), and (c) are covered in


the first portion of Art. 4

e. Simplified rule: Apply the maximum of the lesser penalty.


Art. 48 imposes the penalty for the more serious crime in its maximum
period.

f. Art. 49 applies only in the following cases, viz: (a) Error en


personae; and (b) Where the penalty prescribed for the crime actually
Page 109 of 161
committed is different from the penalty prescribed for the crime
intended.

Art. 50. Penalty to be imposed upon principals of a frustrated


crime. — The penalty next lower in degree than that prescribed by law
for the consummated felony shall be imposed upon the principal in a
frustrated felony.

Art. 51. Penalty to be imposed upon principals of attempted


crimes. — A penalty lower by two degrees than that prescribed by law
for the consummated felony shall be imposed upon the principals in an
attempt to commit a felony.

Art. 52. Penalty to be imposed upon accomplices in


consummated crime. — The penalty next lower in degree than that
prescribed by law for the consummated shall be imposed upon the
accomplices in the commission of a consummated felony.

Art. 53. Penalty to be imposed upon accessories to the


commission of a consummated felony. — The penalty lower by two
degrees than that prescribed by law for the consummated felony shall
be imposed upon the accessories to the commission of a
consummated felony.

Art. 54. Penalty to imposed upon accomplices in a frustrated


crime. — The penalty next lower in degree than prescribed by law for
the frustrated felony shall be imposed upon the accomplices in the
commission of a frustrated felony.

Art. 55. Penalty to be imposed upon accessories of a frustrated


crime. — The penalty lower by two degrees than that prescribed by law
for the frustrated felony shall be imposed upon the accessories to the
commission of a frustrated felony.

Art. 56. Penalty to be imposed upon accomplices in an


attempted crime. — The penalty next lower in degree than that
prescribed by law for an attempt to commit a felony shall be imposed
upon the accomplices in an attempt to commit the felony.

Art. 57. Penalty to be imposed upon accessories of an


attempted crime. — The penalty lower by two degrees than that
prescribed by law for the attempted felony shall be imposed upon the
accessories to the attempt to commit a felony.

Page 110 of 161


TABULAR REPRESENTATION [See also Art. 60, infra.]
Consummated Frustrated Attempted
Principal Let x be the x - 1 degree x – 2 degrees
penalty for the
principal in a
consummated
felony.
Accomplice x – 1 degree x – 2 degrees x – 3 degrees
Accessory [Art. x – 2 degrees x- 3 degrees x – 4 degrees
16 --- no
accessory in
light felonies.]

Art. 58. Additional penalty to be imposed upon certain


accessories. — Those accessories falling within the terms of
paragraphs 3 of Article 19 of this Code who should act with abuse of
their public functions, shall suffer the additional penalty of absolute
perpetual disqualification if the principal offender shall be guilty of a
grave felony, and that of absolute temporary disqualification if he shall
be guilty of a less grave felony.

Art. 59. Penalty to be imposed in case of failure to commit the


crime because the means employed or the aims sought are
impossible [2nd par. of Art. 4]. — When the person intending to commit
an offense has already performed the acts for the execution of the
same but nevertheless the crime was not produced by reason of the
fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are
essentially inadequate to produce the result desired by him, the court,
having in mind the social danger and the degree of criminality shown
by the offender, shall impose upon him the penalty of arresto mayor or
a fine from 200 to 500 pesos. [Impossible crime --- 2nd portion of Art. 4]

Art. 60. Exception to the rules established in Articles 50 to


57. — The provisions contained in Articles 50 to 57, inclusive, of this
Code shall not be applicable to cases in which the law expressly
prescribes the penalty provided for a frustrated or attempted felony, or
to be imposed upon accomplices or accessories.
a. Examples:
Art. 268, Slight Illegal Detention --- One who furnishes the
place for detention. Same penalty as that imposed upon the principal.
Art. 346, Acts of Lasciviousness, Rape, Seduction,
Corruption of Minors, White Slave Trade, and Abduction. --- liability of

Page 111 of 161


ascendants, guardians, teachers, or other persons entrusted with the
custody of the offended party.

Art. 61. Rules for graduating penalties. — For the purpose of


graduating the penalties which, according to the provisions of Articles
50 to 57, inclusive, of this Code, are to be imposed upon persons guilty
as principals of any frustrated or attempted felony, or as accomplices
or accessories, the following rules shall be observed:
1. When the penalty prescribed for the felony is single and
indivisible, the penalty next lower in degrees shall be that
immediately following that indivisible penalty in the respective
graduated scale prescribed in Article 71 of this Code.
2. When the penalty prescribed for the crime is composed of
two indivisible penalties, or of one or more divisible penalties to
be impose to their full extent, the penalty next lower in degree
shall be that immediately following the lesser of the penalties
prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is composed of
one or two indivisible penalties and the maximum period of
another divisible penalty, the penalty next lower in degree shall be
composed of the medium and minimum periods of the proper
divisible penalty and the maximum periods of the proper divisible
penalty and the maximum period of that immediately following in
said respective graduated scale.
4. when the penalty prescribed for the crime is composed of
several periods, corresponding to different divisible penalties, the
penalty next lower in degree shall be composed of the period
immediately following the minimum prescribed and of the two next
following, which shall be taken from the penalty prescribed, if
possible; otherwise from the penalty immediately following in the
above mentioned respective graduated scale.
5. When the law prescribes a penalty for a crime in some
manner not especially provided for in the four preceding rules, the
courts, proceeding by analogy, shall impose corresponding
penalties upon those guilty as principals of the frustrated felony,
or of attempt to commit the same, and upon accomplices and
accessories.

PENALTIES

Divisible penalties are divided into three [3] equal portions. Each
portion is known as a period. If there is an ordinary mitigating

Page 112 of 161


circumstance [OMC], the penalty is to be lowered by one period for
every OMC, except where Art. 64, Paragraph 5 applies.
If there is an aggravating circumstance, the penalty should be
increased by one period for every attendant aggravating circumstance,
but not to exceed the maximum of the penalty prescribed for the crime
committed.
If there is neither aggravating nor mitigating circumstance, the
prescribed penalty should be imposed, in its medium period where no
period is mentioned.
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. [Art. 64]

A degree, on the other hand is a graduation of penalties. The


graduated scales of penalties are provided in Art. 71, thus:
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. Temporary absolute disqualification
3. Suspension from public office, the right to vote and
be voted for, and the right to follow a profession or
calling
4. Public censure
5. Fine

Each penalty in the above scales is a DEGREE IN ITSELF.


Thus, one degree lower than death, the highest degree, is
reclusion perpetua.

Many penalties, however, are composed of periods. Thus, where


the penalty for a crime is prision correccional in its minimum and
medium periods. It is composed of two [2] periods. One degree lower
is just the next lower 2 periods, or arresto mayor in its medium and
maximum periods.
Page 113 of 161
On the other hand, before the advent of GONZALES, if the
penalty for a crime is, say, reclusion temporal in its medium period the
same is composed of one period only. The penalty one degree lower is
just the next lower period or reclusion temporal minimum [See People
vs. Gonzales, 73 Phil. 549, infra, which is governing.]. Finally, if the
penalty is reclusion temporal in its maximum period to death, as a
special case, this penalty is considered composed of 3 periods. One
degree, lower is just the next lower 3 periods or prision mayor
maximum to reclusion temporal medium. To illustrate:
1. Penalty composed of 3 periods: say, reclusion temporal
maximum to death.
1. Death - - - - - - - - - prescribed
2. Reclusion perpetua - - - - penalty
3. Reclusion temporal -- max
med
min one degree lower
4. Prision mayor ------ max
med
min two degrees lower
5. Prision correccional-- max
med
min
6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure
10. Fine

2. Penalty composed of two periods:

4. Prision mayor --------max


med
min
5. Pris. Correccional----max
med prescribed
min penalty
6. Arresto mayor---------max
med one degree lower
min

3. Penalty composed of one period:

1. Death
2. Reclusion perpetua
Page 114 of 161
3. Reclusion temporal---max
med -- Prescribed penalty
min

4. Prision mayor--------max
Prision correccional max --- One degree lower
[Gonzales Doctrine]

G.R. Nos. L-4215-16 April 17, 1953


PEOPLE OF THE PHIL. vs. LEONARDO DOSAL
092 Phil 877

FIRST DIVISION
SYLLABUS
1. CRIMINAL LAW; PENALTIES, COMPUTATION OF. —
In determining the penalty next lower in degree for the purpose of
applying the law on indeterminate sentence, while some of the justices
believe that said penalty immediately lower should be prision mayor in
its medium degree, the majority equally hold that following the doctrine
laid down in the case of People vs. Gonzales (73 Phil., 549), the
penalty next lower in degree to prision mayor in its maximum
degree is and should be prision correccional in its maximum
degree.
The penalty in criminal case No. 2109 (now L-4215) should
therefore be not less than four (4) years and nine (9) months and
eleven (11) days of prision correccional and not more than ten (10)
years, eight (8) months and one (1) day of prision mayor. The
indemnity to the heirs of the deceased Benito Fernandez should be
increased to P6,000. With these modifications, the decision appealed
from is hereby affirmed, with costs.

LEONIDAS EPIFANIO Y LAZARO, Petitioner


---versus---
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. NO. 157057, 2007 Jun 26, 3rd Division)

Accordingly, the imposable penalty for the crime of attempted


murder, following Article 51 of the Revised Penal Code, is prision
correccional in its maximum period to prision mayor in its medium
period. Applying the Indeterminate Sentence Law, the minimum of the
penalty to be imposed should be within the range of arresto mayor in
its maximum period to prision correccional in its medium period, and
the maximum of the penalty to be imposed should be within the range
of prision correccional in its maximum period to prision mayor in its
medium period. Since no generic aggravating or mitigating
Page 115 of 161
circumstance attended the commission of the crime of attempted
murder, the penalty should be two (2) years and four (4) months of
prision correccional, as minimum; and eight (8) years of prision mayor,
as maximum.
NOTE: The crime was committed on August 15, 1990 in Samal,
Davao. The penalty then imposable for MURDER was ---

Art. 248. Murder. — Any person who, not falling within the
provisions of Article 246 shall kill another, shall be guilty of murder and
shall be punished by reclusion temporal in its maximum period to
death, if committed with any of the following attendant circumstances:

=====================================================
====

HOW TO DIVIDE PENALTIES COMPOSED OF PERIODS IN THREE


EQUAL PERIODS

1. Prescribed penalty: Prision mayor maximum to reclusion


temporal medium. [3-period penalty]

1. Get the range of the penalty: 10 y and 1d to 17y and 4m

2. Subtract the minimum from the maximum


17y 4m
- 10y [do not include the day]
7y 4m

3. Divide the range by 3


7y 4m or 88 m 88 m  3 = 29 m and 10 d or
2y 5m 10d

4. min 10y 1d to 12y 5m 10d


med 12y 5m 11d to 14y 10m 20d
max 14y 10m 21d to 17y 4m 00d

2. Prescribed penalty: prision correccional in its minimum and


medium periods. [2-period penalty]

1. Range --- 6m 1d to 4y 2m

2. Subtract 4y 2m - 6m [do not include the day] = 3y 8m

3. 3y 8m  3 = 1y 2m 20d
Page 116 of 161
4. min 6m 1d to 1y 8m 20d
med 1y 8m 21d to 2y 11m 10d
max 2y 11m 11d to 4y 2m 00d

3. Prescribed penalty: Reclusion temporal medium [1-period


penalty]

1. 14 years 8 months 1 day to 17 years 4 months

2. 17y 4m - 14y 8m = 2 years and 8 months

3. 2 year and 8 months divided by 3 = 10 months 20 days

4. min 14y 8m 1d to 15y 6m 20d


med 15y 6m 21d to 16y 5m 10d
max 16y 5m 11d to 17y 4m 00d

TABULATION OF THE PROVISIONS OF THE CHAPTER

Penalty Penalty to be Penalty to be Penalty to Penalty to


prescribe imposed imposed be be
d for the upon the upon the imposed imposed
crime principal in a principal in upon the upon the
frustrated an attempted accessory accessory
crime, and crime, the in a in an
the accessory in frustrated attempted
accomplice the crime, crime
in a consummate and the
consummate d crime, and accompli-
d crime the ces in an
accomplices attempted
in a crime
frustrated
crime
First Death Reclusion Reclusion Prision Prision
Case perpetua temporal mayor correccion
al
Secon Reclusio Reclusion Prision Prision Arresto
d n temporal mayor Correccion mayor
Case perpetua al
to death
Third Reclusio Prision Prision Arresto Fine and
case n mayor in its correccional mayor in
Page 117 of 161
temporal maximum in its its
in its period to
maximum maximum arresto
maximum reclusion
period to period to mayor in
period to temporal in
prision prision its
its medium
mayor in its correcciona minimum
death period. medium l in and
period. its medium medium
period. periods.
Fourth Prision Prision Arresto Fine and Fine
Case mayor in correccional mayor in its arresto
its in its maximum mayor in its
maximum maximum period to minimum
period to period to prision and
reclusion prision correccional medium
temporal mayor in its in its periods.
in its medium medium
medium period. period.
period.

Section Two. — Rules for the application of penalties with regard to the
mitigating and aggravating circumstances, and habitual delinquency.

Art. 62. Effect 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 fain in the commission of any crime.

Page 118 of 161


2. The same rule shall apply with respect to any aggravating
circumstance inherent in the crime to such a degree that it must of
necessity accompany the commission thereof.
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 prision
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 prision mayor in
its minimum and medium periods; and
(c) Upon a fifth or additional 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 prision
mayor in its maximum period to reclusion 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 [Whichever applies.] of the crimes of serious
or less serious physical injuries, robo, hurto, estafa, or falsification, he
is found guilty of any of said crimes a third time or oftener. [FLERTS]

ANNOTATIONS

(a) ATM: [FLERTS] Falsification, Less serious physical


injuries, Estafa, Robbery, Theft, Serious physical injuries.

(b) The accused is sentenced to the penalty provided by law


for the last crime of which he was found guilty and to an additional
penalty.
Page 119 of 161
(c) Habitual delinquency applies to all stages of execution.

(d) The additional penalties imposed for habitual delinquency


by virtue of the provisions of article 62 of the Revised Penal Code, are
neither cruel nor unusual. [People vs. Madrano (53 Phil., 860)] [People
vs. Montera (55 Phil., 933)].

(d) Habitual delinquency is not, however, a crime in itself; it


is only a factor in determining a total penalty. [Pp v. Villaluz, 6 Aug.
1975] Therefore, its possible imposition, which may possibly increase
the penalty to more than six (6) years, does not affect the jurisdiction of
the municipal court. Provided, that the crime charged is within the
competence of the municipal court.

(e) Habitual delinquency requires that the second crime was


committed after the first conviction, the third, after the second, the
fourth, after the third, and so on (People v. Santiago, 55 Phil. 266) and
hence, the date of commission is an indispensable allegation. [Cuenca
vs. Superintendent Of The Correctional Institution For Women,
December 30, 1961]

(f) In imposing the additional penalty, recidivism should not


be taken into account the same being inherent in habitual delinquency.
[People vs. Manalo May 25, 1956]

(g) A general statement of habitual delinquency is not


sufficient. The following must be alleged with specificity: (1) Dates of
the commission of the previous crimes; (2) Date the last conviction or
release; and (3) Date of the other previous convictions or release.

Art. 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.

Page 120 of 161


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.

Art. 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 circumstance 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.
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.

ANNOTATIONS

Page 121 of 161


a. Art. 64 is only applicable to divisible penalties. It does not
apply to (1) Single and indivisible penalties; (2) penalties
prescribed by special law, except where the special law itself
provides for its application; (3) fines; and (4) culpa.

Art. 65. Rule in cases in which the penalty is not composed of


three periods. — In cases in which the penalty prescribed by law is not
composed of three periods, the courts shall apply the rules contained
in the foregoing articles, dividing into three equal portions of time
included in the penalty prescribed, and forming one period of each of
the three portions.

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. (See Art. 26)

Art. 67. Penalty to be imposed when not all the requisites of


exemption of the fourth circumstance of Article 12 (PURE ACCIDENT)
are present.— When all the conditions required in circumstances
Number 4 of Article 12 of this Code to exempt from criminal liability are
not present, the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period shall be imposed upon the
culprit if he shall have been guilty of a grave felony, and arresto mayor
in its minimum and medium periods, if of a less grave felony.(See Art.9)
(See: Juvenile Justice and Welfare Act of 2006, R.A. 9344, p. 160)
Art. 68. Penalty to be imposed upon a person under eighteen
years of age. — When the offender is a minor under eighteen years
and his case is one coming under the provisions of the paragraphs
next to the last of Article 80 of this Code, the following rules shall be
observed:
1. Upon a person under fifteen but over nine years of age, who
is not exempted from liability by reason of the court having
declared that he acted with discernment, a discretionary penalty
shall be imposed, but always lower by two degrees at least than
that prescribed by law for the crime which he committed.
2. Upon a person over fifteen and less than eighteen years of
age the penalty next lower than that prescribed by law shall be
imposed, but always in the proper period.

Art. 69. Penalty to be imposed when the crime committed is not


wholly excusable. — A penalty lower by one or two degrees than that
Page 122 of 161
prescribed by law shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases
mentioned in Article 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature
of the conditions of exemption present or lacking.
1. In Pp v. Jaurigue, 21 Feb. 1946, where the court
appreciated three OMCs, viz: voluntary surrender, immediate
vindication of a grave offense and praeter intentionem, the penalty was
lowered by two degrees in consonance with the provision of Art. 69.
But note that none of the OMCs mentioned falls under Art. 11 or Art.
12. N.B. --- See Art. 64 (5)

Art. 70. Successive service of sentence. — 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

Page 123 of 161


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 ( pena perpetua) shall be computed at thirty years. (As
amended).

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:
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. (See Art. 26)
SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be
voted for, the right to follow a profession or calling,
4. Public censure,
5. Fine.

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.

Section Three. — Provisions common in the last two preceding


sections

Art. 73. Presumption in regard to the imposition of accessory

Page 124 of 161


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. (See also Art. 34.)

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.

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
table:

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES


AND THE TIME INCLUDED IN EACH OF THEIR PERIODS

Penalties Time Time Time Time


included in included in included in included in
the penalty its its its
in its minimum medium maximum
entirety period period period

Reclusion From 12 From 12


From 14 From 17
temp years and 1 years and 1
years, 8 years, 4
oral day to 20 day to 14
months and months and
years. years and 8
1 day to 17 1 day to 20
months. years and 4 years.
months.
Prision mayor, From 6 From 6 From 8 From 10
absolute years and 1 years and 1 years and 1 years and 1
disqualification day to 12 day to 8 day to 10 day to 12
Page 125 of 161
and special years. years. years. years
temporary
disqualification.
Prision From 6 From 6 From 2 From 4
corre months and months and years, 4 years, 2
ccion 1 day to 6 1 day to 2 months and months and
al, years. years and 4 1 day to 4 1 day to 6
susp months. years and 2 years
ensi months.
on
and
desti
erro.
Arresto mayor From 1 From 1 to 2 From 2 From 4
month and months. months and months and
1 day to 6 1 day to 4 1 day to 6
months. months. months.
Arresto menor From 1 to From 1 to From 11 From 21
30 days. 10 days. days to 20 days to 30
days. days.

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.

Chapter Five
EXECUTION AND SERVICE OF PENALTIES
Section One. — General Provisions

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.
Page 126 of 161
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.

Art. 80. Repealed and modified by Chapter III of P.D. No.


603, The Child and Youth Welfare Code of the Philippines, as
amended by P.D. No. 1179 and P.D. No. 1210, promulgated 15 August
1977 and 11 Oct. 1978.
SEE LATEST: R. A. 9344, JUVENILE JUSTICE AND WELFARE
ACT of 2006. The above discussion no longer holds true.

Section Two. — Execution of principal penalties.


[No more death penalty in our jurisdiction]
Art. 81. When and how the death penalty is to be executed. —
The death sentence shall be executed with reference to any other and
shall consist in putting the person under sentence to death by
electrocution. The death sentence shall be executed under the
authority of the Director of Prisons, endeavoring so far as possible to
mitigate the sufferings of the person under sentence during
electrocution as well as during the proceedings prior to the execution.
[N.B. --- Now, by electrocution, R.A. 8177, approved on 20 March
1996]
If the person under sentence so desires, he shall be
anaesthetized at the moment of the electrocution.

Art. 82. Notification and execution of the sentence and


assistance to the culprit. — The court shall designate a working day for
the execution but not the hour thereof; and such designation shall not
be communicated to the offender before sunrise of said day, and the
execution shall not take place until after the expiration of at least eight
hours following the notification, but before sunset. During the interval
between the notification and the execution, the culprit shall, in so far as
Page 127 of 161
possible, be furnished such assistance as he may request in order to
be attended in his last moments by priests or ministers of the religion
he professes and to consult lawyers, as well as in order to make a will
and confer with members of his family or persons in charge of the
management of his business, of the administration of his property, or of
the care of his descendants.

Art. 83. Suspension of the execution of the death sentence. —


The death sentence shall not be inflicted upon a woman within the
three years next following the date of the sentence or while she is
pregnant, nor upon any person over seventy years of age. In this last
case, the death sentence shall be commuted to the penalty of
reclusion perpetua with the accessory penalties provided in Article 40.

Art. 84. Place of execution and persons who may witness the
same. — The execution shall take place in the penitentiary of Bilibid in
a space closed to the public view and shall be witnessed only by the
priests assisting the offender and by his lawyers, and by his relatives,
not exceeding six, if he so request, by the physician and the necessary
personnel of the penal establishment, and by such persons as the
Director of Prisons may authorize.

Art. 85. Provisions relative to the corpse of the person executed


and its burial. — Unless claimed by his family, the corpse of the culprit
shall, upon the completion of the legal proceedings subsequent to the
execution, be turned over to the institute of learning or scientific
research first applying for it, for the purpose of study and investigation,
provided that such institute shall take charge of the decent burial of the
remains. Otherwise, the Director of Prisons shall order the burial of
the body of the culprit at government expense, granting permission to
be present thereat to the members of the family of the culprit and the
friends of the latter. In no case shall the burial of the body of a person
sentenced to death be held with pomp. [Punishable under Art. 153]

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.

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

Page 128 of 161


more than 250 and not less than 25 kilometers from the place
designated.

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.

Isabelita Reodica vs. CA, et al. July 8, 1998.


DECISION
SECOND DIVISION
DAVIDE, JR., J :
xxx xxx xxx.
We agree with both petitioner and the OSG that the penalty of six
months of arresto mayor imposed by the trial court and affirmed by
respondent Court of Appeals is incorrect. However, we cannot
subscribe to their submission that the penalty of arresto menor in its
maximum period is the proper penalty.
Article 365 of the Revised Penal Code provides: Imprudence and
negligence. - Any person who, by reckless imprudence, shall commit
any act which, had it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its maximum period to
prision correccional in its medium period; if it would have constituted a
less grave felony, the penalty of arresto mayor in its minimum and
medium periods shall be imposed; if it would have constituted a light
felony, the penalty of arresto menor in its maximum period shall be
imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony, shall
suffer the penalty of arresto mayor in its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of
arresto mayor in its minimum period shall be imposed.
When the execution of the act covered by this article shall have
only resulted in damage to the property of another, the offender shall
be punished by a fine ranging from an amount equal to the value of
said damages to three times such value, but which shall in no case be
less than 25 pesos.
A fine not exceeding 200 pesos and censure shall be imposed
upon any person who, by simple imprudence or negligence, shall
cause some wrong which, if done maliciously, would have constituted a
light felony.
In the imposition of these penalties, the courts shall exercise their
sound discretion, without regard to the rules prescribed in Article 64.
The provisions contained in this article shall not be applicable:
Page 129 of 161
1. When the penalty provided for the offense is equal to or lower
than those provided in the first two paragraphs of this article, in which
case the courts shall impose the penalty next lower in degree than that
which should be imposed in the period which they may deem proper to
apply.
According to the first paragraph of the aforequoted Article, the
penalty for reckless imprudence resulting in slight physical injuries, a
light felony, is arresto menor in its maximum period, with a duration of
21 to 30 days. If the offense of slight physical injuries is, however,
committed deliberately or with malice, it is penalized with arresto
menor under Article 266 of the Revised Penal Code, with a duration of
1 day to 30 days. Plainly, the penalty then under Article 266 may be
either lower than or equal to the penalty prescribed under the first
paragraph of Article 365. This being the case, the exception in the sixth
paragraph of Article 365 applies. Hence, the proper penalty for
reckless imprudence resulting in slight physical injuries is public
censure, this being the penalty next lower in degree to arresto menor.
As to reckless imprudence resulting in damage to property in the
amount of P8,542.00, the third paragraph of Article 365, which
provides for the penalty of fine, does not apply since the reckless
imprudence in this case did not result in damage to property only. What
applies is the first paragraph of Article 365, which provides for arrest
mayor in its minimum and medium periods (1 month and 1 day to 4
months) for an act committed through reckless imprudence which, had
it been intentional, would have constituted a less grave felony. Note
that if the damage to the extent of P8,542.00 were caused deliberately,
the crime would have been malicious mischief under Article 329 of the
Revised Penal Code, and the penalty would then be arresto mayor in
its medium and maximum periods (2 months and 1 day to 6 months
which is higher than that prescribed in the first paragraph of Article
365). If the penalty under Article 329 were equal to or lower than that
provided for in the first paragraph, then the sixth paragraph of Article
365 would apply, i.e., the penalty next lower in degree, which is arresto
menor in its maximum period to arresto mayor in its minimum period or
imprisonment from 21 days to 2 months. Accordingly, the imposable
penalty for reckless imprudence resulting in damage to property to the
extent of P8,542.00 would be arresto mayor in its minimum and
medium periods, which could be anywhere from a minimum of 1 month
and 1 day to a maximum of 4 months, at the discretion of the court,
since the fifth paragraph of Article 365 provides that in the imposition of
the penalties therein provided "the courts shall exercise their sound
discretion without regard to the rule prescribed in article 64."
II. Classification of the Quasi Offense in Question.
Felonies are committed not only by means of deceit (dolo), but
likewise by means of fault (culpa). There is deceit when the wrongful
Page 130 of 161
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.
As earlier stated, reckless imprudence resulting in slight physical
injuries is punishable by public censure only. Article 9, paragraph 3, of
the Revised Penal Code defines light felonies as infractions of law
carrying the penalty of arresto menor or a fine not exceeding P200.00,
or both. Since public censure is classified under Article 25 of the Code
as a light penalty, and is considered under the graduated scale
provided in Article 71 of the same Code as a penalty lower than arresto
menor, it follows that the offense of reckless imprudence resulting in
slight physical injuries is a light felony.
On the other hand, reckless imprudence also resulting in damage
to property is, as earlier discussed, penalized with arresto mayor in its
minimum and medium periods. Since arresto mayor is a correctional
penalty under Article 25 of the Revised Penal Code, the quasi offense
in question is a less grave felony - not a light felony as claimed by
petitioner.
III. Applicability of the Rule on Complex Crimes.
Since criminal negligence may, as here, result in more than one
felony, should Article 48 of the Revised Code on complex crimes be
applied? Article 48 provides as follows:
ART. 48. Penalty for complex crimes. - When a single act
constitutes two or more grave or less grave felonies, or when an
offense is necessary a means for committing the other, the penalty for
the most serious crime shall be imposed, the same to be applied in its
maximum period.
Clearly, if a reckless, imprudent or negligent act results in two or
more grave or less grave felonies, a complex crime is committed.
However, in Lontok v. Gorgonio, (89 SCRA 632, 636 [1079]) this
Court declared that where one of the resulting offenses in criminal
negligence constitutes a light felony, there is no complex crime, thus:
Applying article 48, it follows that if one offense is light, there is no
complex crime. The resulting offenses may be treated as separate or
the light felony may be absorbed by the grave felony. Thus, the light
felonies of damage to property and slight physical injuries, both
resulting from a single act of imprudence, do not constitute a complex
crime. They cannot be charged in one information. They are separate
offenses subject to distinct penalties (People vs. Turla, 50 Phil. 1001;
See People vs. Estipona, 70 Phil. 513).
Where the single act of imprudence resulted in double less
serious physical injuries, damage to property amounting to P10,000
and slight physical injuries, a chief of police did not err in filing a
separate complaint for the slight physical injuries and another

Page 131 of 161


complaint for the lesiones menos graves and damage to property
[Arcaya vs. Teleron, L-37446, May 31, 1974, 57 SCRA 363, 365].
Hence, the trial court erred in considering the following felonies as
a complex crime: the less grave felony of reckless imprudence
resulting in damage to property in the amount of P8,542.00 and the
light felony of reckless imprudence resulting in physical injuries.

IV. The Right to Assail the Duplicity of the Information.


Following Lontok, the conclusion is inescapable here, that the
quasi offense of reckless imprudence resulting in slight physical
injuries should have been charged in a separate information because it
is not covered by Article 48 of the Revised Penal Code. However,
petitioner may no longer question, at this stage, the duplicitous
character of the information, i.e., charging two separate offenses in one
information, to wit: (1) reckless imprudence resulting in damage to
property; and (2) reckless imprudence resulting in slight physical
injuries. This defect was deemed waived by her failure to raise it in a
motion to quash before she pleaded to the information. 28 Under
Section 3, Rule 120 of the Rules of Court, when two or more offenses
are charged in a single complaint or information and the accused fails
to object to it before trial, the court may convict the accused of as
many offenses as are charged and proved and impose on him the
penalty for each of them.
V. Which Court Has Jurisdiction Over the Quasi Offenses in
Question.
The jurisdiction to try a criminal action is to be determined by the
law in force at the time of the institution of the action, unless the statute
expressly provides, or is construed to the effect that it is intended to
operate as to actions pending before its enactment. 30
At the time of the filing of the information in this case, the law in
force was Batas Pambansa Blg. 129, otherwise known as "The
Judiciary Reorganization Act of 1980." Section 32(2) 31 thereof
provided that except in cases falling within the exclusive original
jurisdiction of the Regional Trial Courts and of the Sandiganbayan, the
Metropolitan Trial Courts (MeTCs), Municipal Trial Courts (MTCs), and
Municipal Circuit Trial Courts (MCTCs) had exclusive original
jurisdiction over "all offenses punishable with imprisonment of not
exceeding four years and two months, or a fine of not more than four
thousand pesos, or both fine and imprisonment, regardless of other
imposable accessory or other penalties, including the civil liability
arising from such offenses or predicated thereon, irrespective of kind,
nature, value or amount thereof."
The criminal jurisdiction of the lower courts was then determined
by the duration of the imprisonment and the amount of fine prescribed
by law for the offense charged. The question thus arises as to which
Page 132 of 161
court has jurisdiction over offenses punishable by censure, such as
reckless imprudence resulting in slight physical injuries.
In Uy Chin Hua v. Dinglasan, (86 Phil. 617 [1950]) this Court
found that a lacuna (gap; hiatus) existed in the law as to which court
had jurisdiction over offenses penalized with destierro, the duration of
which was from 6 months and 1 day to 6 years, which was co-
extensive with prision correccional. We then interpreted the law in this
wise:
Since the legislature has placed offenses penalized with arresto
mayor under the jurisdiction of justice of the peace and municipal
courts, and since by Article 71 of the Revised Penal Code, as
amended by Section 3 of Commonwealth Act No. 217, it has placed
destierro below arresto mayor as a lower penalty than the latter, in the
absence of any express provision of law to the contrary it is logical and
reasonable to infer from said provisions that its intention was to place
offenses penalized with destierro also under the jurisdiction of justice of
the peace and municipal courts and not under that of courts of first
instance.
Similarly, since offenses punishable by imprisonment of not
exceeding 4 years and 2 months were within the jurisdictional ambit of
the MeTCs, MTCs and MCTCs, it follows that those penalized with
censure, which is a penalty lower than arresto menor under the
graduated scale in Article 71 of the Revised Penal Code and with a
duration of 1 to 30 days, should also fall within the jurisdiction of said
courts. Thus, reckless imprudence resulting in slight physical injuries
was cognizable by said courts.
As to the reckless imprudence resulting in damage to property in
the amount of P8,542.00, the same was also under the jurisdiction of
MeTCs, MTCs or MCTCs because the imposable penalty therefor was
arresto mayor in its minimum and medium periods - the duration of
which was from 1 month and 1 day to 4 months.
Criminal Case No. 33919 should, therefore, be dismissed for lack
of jurisdiction on the part of the RTC of Makati.
VI. Prescription of the Quasi Offenses in Question.
Pursuant to Article 90 of the Revised Penal Code, reckless
imprudence resulting in slight physical injuries, being a light felony,
prescribes in two months. On the other hand, reckless imprudence
resulting in damage to property in the amount of P8,542.00 being a
less grave felony whose penalty is arresto mayor in its minimum and
medium periods, prescribes in five years.
To resolve the issue of whether these quasi offenses have already
prescribed, it is necessary to determine whether the filing of the
complaint with the fiscal's office three days after the incident in
question tolled the running of the prescriptive period.
Page 133 of 161
Article 91 of the Revised Penal Code provides:
ART. 91. Computation of prescription of offenses. - The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and
shall be interrupted by the filing of the complaint or information, and
shall commence to run again when such proceedings terminate without
the accused being convicted or acquitted, or are unjustifiably stopped
by any reason not imputable to him. (emphasis supplied)
Notably, the aforequoted article, in declaring that the prescriptive
period "shall be interrupted by the filing of the complaint or
information," does not distinguish whether the complaint is filed for
preliminary examination or investigation only or for an action on the
merits. Thus, in Francisco v. Court of Appeals and People v.
Cuaresma, this Court held that the filing of the complaint even with the
fiscal's office suspends the running of the statute of limitations.
We cannot apply Section 9 of the Rule on Summary Procedure,
which provides that in cases covered thereby, such as offenses
punishable by imprisonment not exceeding 6 months, as in the instant
case, "the prosecution commences by the filing of a complaint or
information directly with the MeTC, RTC or MCTC without need of a
prior preliminary examination or investigation; provided that in
Metropolitan Manila and Chartered Cities, said cases may be
commenced only by information." However, this Section cannot be
taken to mean that the prescriptive period is interrupted only by the
filing of a complaint or information directly with said courts.
It must be stressed that prescription in criminal cases is a matter
of substantive law. Pursuant to Section 5(5), Article VIII of the
Constitution, this Court, in the exercise of its rule-making power, is not
allowed to diminish, increase or modify substantive rights. 37 Hence, in
case of conflict between the Rule on Summary Procedure promulgated
by this Court and the Revised Penal Code, the latter prevails.
Neither does Zaldivia control in this instance. It must be recalled
that what was involved therein was a violation of a municipal
ordinance; thus, the applicable law was not Article 91 of the Revised
Penal Code, but Act. No. 3326, as amended, entitled "An Act to
Establish Periods of Prescription for Violations Penalized by Special
Acts and Municipal Ordinances and to Provide When Prescription Shall
Begin to Run." Under, Section 2 thereof, the period of prescription is
suspended only when judicial proceedings are instituted against the
guilty party. Accordingly, this Court held that the prescriptive period was
not interrupted by the filing of the complaint with the Office of the
Provincial Prosecutor, as such did not constitute a judicial proceeding;
what could have tolled the prescriptive period there was only the filing
of the information in the proper court.

Page 134 of 161


In the instant case, as the offenses involved are covered by the
Revised Penal Code, Article 91 thereof and the rulings in Francisco
and Cuaresma apply. Thus, the prescriptive period for the quasi
offenses in question was interrupted by the filing of the complaint with
the fiscal's office three days after the vehicular mishap and remained
tolled pending the termination of this case. We cannot, therefore,
uphold petitioner's defense of prescription of the offenses charged in
the information in this case.
WHEREFORE, the instant petition is GRANTED. The challenged
decision of respondent Court of Appeals in CA-G.R. CR No. 14660 is
SET ASIDE as the Regional Trial Court, whose decision was affirmed
therein, had no jurisdiction over Criminal Case No. 33919.
Criminal Case No. 33919 is ordered DISMISSED.
No pronouncement as to costs.

Title Four
EXTINCTION OF CRIMINAL LIABILITY
Chapter One
TOTAL EXTINCTION 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;

People vs. Patriarca, Jr. September 29, 2000

Amnesty commonly denotes a general pardon to rebels for their


treason or other high political offenses, or the forgiveness which one
sovereign grants to the subjects of another, who have offended, by
some breach, the law of nations. Amnesty looks backward, and
abolishes and puts into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person
released by amnesty stands before the law precisely as though he had
committed no offense.

Paragraph 3 of Article 89 of the Revised Penal Code provides that


criminal liability is totally extinguished by amnesty, which completely
extinguishes the penalty and all its effects.
In the case of People vs. Casido, [269 SCRA 360 [1997]. the
difference between pardon and amnesty was discussed, thus:
Page 135 of 161
"Pardon is granted by the Chief Executive and as such it is a private act which must be
pleaded and proved by the person pardoned, because the courts take no notice thereof; while
amnesty by Proclamation of the Chief Executive with the concurrence of Congress, is a public
act of which the courts should take judicial notice. Pardon is granted to one after conviction;
while amnesty is granted to classes of persons or communities who may be guilty of political
offenses, generally before or after the institution of the criminal prosecution and sometimes
after conviction. Pardon looks forward and relieves the offender from the consequences of an
offense of which he has been convicted, that is, it abolishes or forgives the punishment, and
for that reason it does 'not work the restoration of the rights to hold public office, or the right of
suffrage, unless such rights be expressly restored by the terms of the pardon,' and it 'in no
case exempts the culprit from the payment of the civil indemnity imposed upon him by the
sentence' (Article 36, Revised Penal Code). While amnesty looks backward and abolishes and
puts into oblivion the offense itself, it so overlooks and obliterates the offense with which he is
charged that the person released by amnesty stands before the law precisely as though he
had committed no offense."
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
Article 344 of this Code.

Art. 90. Prescription of crime. — Crimes punishable by death,


reclusion perpetua or reclusion temporal shall prescribe in twenty
years.
Crimes punishable by other afflictive penalties shall prescribe in
fifteen years.
Those punishable by a correctional penalty shall prescribe in ten
years; with the exception of those punishable by arresto mayor, which
shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one
year.
The crime of oral defamation and slander by deed shall prescribe
in six months.
Light offenses prescribe in two 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 paragraphs of this article. (As amended
by RA 4661, approved June 19, 1966.)

Art. 91. Computation of prescription of offenses. — The period


of prescription shall commence to run from the day on which the crime
is discovered by the offended party, the authorities, or their agents, and
shall be interrupted by the filing of the complaint or information, and
shall commence to run again when such proceedings terminate without
the accused being convicted or acquitted, or are unjustifiably stopped
for any reason not imputable to him.
The term of prescription shall not run when the offender is absent
from the Philippine Archipelago.
Page 136 of 161
Art. 92. When and how penalties prescribe. — The penalties
imposed by final sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of the
penalty of arresto mayor, which prescribes in five years;
4. Light penalties, in one year.
However, in the case of Adlaida Tanega v. Masakayan, et al., En Banc,
28 Feb. 1967 --- The accused must evade sentence in order that the
prescription period should ran (Accused escapes during the term of
his sentence.).
Art. 93. Computation of the prescription of penalties. — The
period of prescription of penalties shall commence to run from the date
when the culprit should evade the service of his sentence, and it shall
be interrupted if the defendant should give himself up, be captured,
should go to some foreign country with which this Government has no
extradition treaty, or should commit another crime before the expiration
of the period of prescription.

Chapter Two
PARTIAL EXTINCTION OF CRIMINAL LIABILITY

Art. 94. (R.A. 10592, May 29, 2013) “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.”
SEE ALSO: parole and probation
Art. 95. Obligation incurred by person granted conditional
pardon. — Any person who has been granted conditional pardon shall
incur the obligation of complying strictly with the conditions imposed
therein otherwise, his non-compliance with any of the conditions
specified shall result in the revocation of the pardon and the provisions
of Article 159 shall be applied to him.

Art. 96. Effect of commutation of sentence. — The commutation


of the original sentence for another of a different length and nature
shall have the legal effect of substituting the latter in the place of the
former.

Art. 97. (R.A. 10592, May 29, 2013) “ART. 97. Allowance for good
conduct. – The good conduct of any offender qualified for credit for preventive
Page 137 of 161
imprisonment pursuant to Article 29 of this Code, or of any convicted prisoner in
any penal institution, rehabilitation or detention center or any other local jail shall
entitle him to the following deductions from the period of his sentence:
“1. During the first two years of imprisonment, he shall be allowed a
deduction of twenty days for each month of good behavior during detention;
“2. During the third to the fifth year, inclusive, of his imprisonment, he shall
be allowed a reduction of twenty-three days for each month of good behavior
during detention;
“3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of twenty-five days for each
month of good behavior during detention;
“4. During the eleventh and successive years of his imprisonment, he shall
be allowed a deduction of thirty days for each month of good behavior during
detention; and
“5. At any time during the period of imprisonment, he shall be allowed
another deduction of fifteen days, in addition to numbers one to four hereof, for
each month of study, teaching or mentoring service time rendered.
“An appeal by the accused shall not deprive him of entitlement to the above
allowances for good conduct.”

Art. 98. (R.A. 10592, May 29, 2013) “ART. 98. Special time allowance for loyalty. – A
deduction of one fifth of the period of his sentence shall be granted to any prisoner who,
having evaded his preventive imprisonment or the service of his sentence under the
circumstances mentioned in Article 158 of this Code, gives himself up to the authorities within
48 hours following the issuance of a proclamation announcing the passing away of the
calamity or catastrophe referred to in said article. A deduction of two-fifths of the period of
his sentence shall be granted in case said prisoner chose to stay in the place of his
confinement notwithstanding the existence of a calamity or catastrophe enumerated in
Article 158 of this Code.
“This Article shall apply to any prisoner whether undergoing preventive
imprisonment or serving sentence.”
ANNOTATIONS
(a) Art. 158 --- Evasion of service of sentence on the occasion of disorder,
conflagrations, earthquakes, or other calamities. — A convict who shall evade the
service of his sentence, by leaving the penal institution where he shall have been
confined, on the occasion of disorder resulting from a conflagration, earthquake,
explosion, or similar catastrophe, or during a mutiny in which he has not participated,
shall suffer an increase of one-fifth of the time still remaining to be served under the
original sentence, which in no case shall exceed six months, if he shall fail to give
himself up to the authorities within forty-eight hours following the issuance of a
proclamation by the Chief Executive announcing the passing away of such calamity.
Convicts who, under the circumstances mentioned in the preceding paragraph,
shall give themselves up to the authorities within the above mentioned period of 48
hours, shall be entitled to the deduction provided in Article 98 (SEE AMENDED ART.
98).

Art. 99. (R.A. 10592, May 29, 2013) “ART. 99. Who grants time
allowances. – Whenever lawfully justified, the Director of the Bureau of
Corrections, the Chief of the Bureau of Jail Management and Penology and/or
the Warden of a provincial, district, municipal or city jail shall grant allowances for
good conduct. Such allowances once granted shall not be revoked.”

Title Five

Page 138 of 161


CIVIL LIABILITY
Chapter One
PERSON CIVILLY LIABLE FOR FELONIES

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.
Subsidiary civil liability of innkeepers, tavern keepers and
proprietors of establishments. — In default of the persons criminally
liable, innkeepers, tavern keepers, 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

Page 139 of 161


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 [VICARIOUS


LIABILITY]. — 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.
Chapter Two
WHAT CIVIL LIABILITY INCLUDES
Civil Liability:
[DACILLO (En Banc), G.R. 149368, April 14, 2004]
a. P50, 000.00 --- When death occurs as a result of a crime. Requires
no proof of civil injury.
b. P25,000.00 --- with one or more generic aggravating circumstances.
[YATAR, May 19. 2004]
Rape with Homicide
a. P100, 000.00 --- Civil indemnity ex delicto.
b. P75, 000.00 Moral damages.
[LAYUGAN (En Banc), April 28, 2004]
Simple Rape
a. P50, 000.00 --- Civil indemnity.
b. P50, 000.00 --- Moral damages.

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.

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.

Page 140 of 161


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.

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.

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.

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.

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.

Page 141 of 161


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 equivalent to the
extent of such participation.

Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

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.

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.

****************************************************************

INDETERMINATE SENTENCE LAW


(Act 4103, as amended)

I. SPECIAL LAW:

1. X is convicted under Sec. 10, Art. II of RA 9165. The imposable


penalty of imprisonment is from 12 years and 1 day to 20 years.

The court can impose an indeterminate sentence the minimum of


which is not less than 12 years and 1 day, and the maximum is not
more than 20 years.
Example: minimum – 13 years (not less than 12y 1d)
maximum – 19 years (not more than 20 y)

II. RPC [with no PMC or Art. 64(5)]

a. First, disregard the presence of any ordinary mitigating or


generic aggravating circumstance.

b. Determine the minimum of the Indeterminate Sentence, which


is one degree lower from the imposable penalty.
Page 142 of 161
Example:X is convicted of a felony with the presence of 2
Mitigating Circumstances and 1 Aggravating
Circumstance. The imposable penalty is reclusion
temporal (no mention as to period – meaning:
medium)
Imposable – Reclusion Temp.
Next lower – Prision mayor

c. Apply the GAC or the OMC in fixing the max of the


Indeterminate Sentence (The GAC or the OMC has nothing to do with
the minimum of the I.S.)
Indeterminate Sentence will be:
minimum – prision mayor in any of its periods or anywhere
within its range with no reference as to its period
maximum – reclusion temp minimum (12y 1d ~ 14y 8m)
because of the excess 1 M.C. [but the longest
period of incarceration is only 12y 1d, following the
Gonzales case)

III. RPC [with PMC or Art. 64(5)]

a. Immediately apply the PMC or Art. 64(5) to the imposable


penalty, then proceed as in (b) and (c) of II.
Example: same case as in II, but 1 PMC
Imposable penalty: Reclusion Temporal – immediately lower
this by 1 degree [Art. 64(5)]
Therefore: Prision mayor – max of I.S.
Prision correccional – min. of I.S.
Same treatment as in II above.

IV. COMPLEX CRIME:

Art. 48 – the penalty for the more serious crime shall be imposed
in its max. period
a. X is found guilty of the crime of estafa through falsification
of a public document. The penalty is for the more serious crime of
falsification, which is prision mayor max. (determine the min. of
the indeterminate sentence using the prision mayor max as
reference)
Indeterminate Sentence is:
Example: 1M.C.
I.S. max – prision mayor maximum
min. – prision correccional – whole
range (supra)

Page 143 of 161


SECTION 2, ACT 4103 [ISLAW] --- This act shall not apply:
(a) to those persons convicted of offenses punished with death
penalty or life-imprisonment;
(b) to those convicted of treason, conspiracy or proposal to
commit treason;
(c) to those convicted of misprision of treason, rebellion, sedition,
or espionage;
(d) to those convicted of piracy;
(e) to those who are habitual delinquents;
(f) to those who shall have escaped from confinement or evaded
sentence;
(g) to those who having been granted conditional pardon by the
President shall have violated the terms thereof; and
(h) to those whose maximum term of imprisonment does not
exceed one year….

C A S E S:
People vs. Geneblazo July 20, 2001

Based on our findings that homicide, not murder, was committed,


the penalty imposed upon accused-appellant should correspondingly
be lowered to reclusion temporal. There being no aggravating nor
mitigating circumstance, the proper imposable penalty should be
reclusion temporal in its medium period. Applying the Indeterminate
Sentence Law, the minimum term is anywhere within the range of
prision mayor, or from 6 years and 1 day to 12 years, and the
maximum within the range of reclusion temporal in its medium period,
or from 14 years, 8 months and 1 day to 17 years and 4 months.

avdjr NOTE: Reclusion Temporal: Min: 12y 1d ~14y 8m; Med: 14y 8m
1d ~ 17y 4m; Max: 17y 4m 1d ~ 20y
Prision Mayor: Min: 6y 1d 8y; Med: 8y 1d ~ 10y; Max:
10y 1d ~12y
----------------------------------------------------------------

People vs. Pagador April 20, 2001


EN BANC
As regards the killing of Herminigildo Mendez, a victim of
homicide, the penalty under Art. 249 of The Revised Penal Code is
reclusion temporal, the range of which is twelve (12) years and one (1)
day to twenty (20) years. Considering the presence of the aggravating
circumstance of nighttime and applying the Indeterminate Sentence
Law, the maximum of the imposable penalty shall be taken from the
maximum period of reclusion temporal, which is seventeen (17) years
four (4) months and one (1) day to twenty (20) years, while the
Page 144 of 161
minimum shall be taken from the penalty next lower in degree, which
is prision mayor, the range of which is six (6) years and one (1) day to
twelve (12) years, in any of its periods.
xxx xxx
xxx

As regards the frustrated murder of Rosalinda Mendez, the


penalty one (1) degree lower than reclusion perpetua to death, which
is reclusion temporal, shall be imposed pursuant to Art. 250 of The
Revised Penal Code in relation to Art. 50 thereof. In the absence of
any modifying circumstance,16 the maximum penalty to be imposed
shall be taken from the medium period of the imposable penalty, which
is reclusion temporal medium, while the minimum shall be taken from
the penalty next lower in degree, which is prision mayor in any of its
periods.
xxx xxx
xxx
Complaining witness Emily Mendez lost her left index finger by
amputation as a result of the crime, and appreciating treachery as an
aggravating circumstance,17 evident premeditation although alleged
but not having been proved, the imposable penalty shall be prision
correccional in its minimum and medium periods the range of which is
six (6) months and one (1) day to four (4) years and two (2) months.
Applying the Indeterminate Sentence Law, the minimum shall be
taken from the minimum of the imposable penalty, which is six (6)
months and one (1) day to one (1) year eight (8) months and twenty
(20) days, and the maximum shall be taken from its medium period,
which is one (1) year, eight (8) months and twenty-one (21) days, to
two (2) years eleven (11) months and ten (10) days.
xxx xxx xxx
WHEREFORE, the Decision of the Regional Trial Court of
Alaminos, Pangasinan is MODIFIED as follows:
1) In G.R. No. 140006 (Crim. Case No. 3284-A), accused-
appellant Rolly Pagador is found guilty of Homicide (instead of Murder
as found by the trial court) and is sentenced to suffer an indeterminate
prison term of eight (8) years four (4) months and ten (10) days of
prision mayor medium as minimum, to seventeen (17) years six (6)
months and twenty (20) days of reclusion temporal maximum, as
maximum, and to pay the heirs of Herminigildo Mendez the amounts
of P50,000.00 as civil indemnity and another P50,000.00 for moral
damages;
2) In G.R. No. 140007 (Crim. Case No. 3285-A), accused-
appellant is found guilty of Murder (as likewise found by the trial court)
and is sentenced to suffer the penalty of reclusion perpetua and to pay

Page 145 of 161


the heirs of Magdalena Mendez the amounts of P50,000.00 as civil
indemnity and another P50,000.00 for moral damages;
3) In G.R. No. 140008 (Crim. Case No. 3286-A), accused-
appellant is found guilty of Less Serious Physical Injuries (instead of
Frustrated Murder as found by the trial court) and is sentenced to
suffer a straight prison term of four (4) months and ten (10) days of
arresto mayor maximum;
4) In G.R. No. 140009 (Crim. Case No. 3287-A), accused-
appellant is found guilty of Frustrated Murder and is sentenced to an
indeterminate prison term of eight (8) years four (4) months and ten
(10) days of prision mayor medium as minimum, to sixteen (16) years
two (2) months and ten (10) days of reclusion temporal medium as
maximum; and
5) In G.R. No. 140010 (Crim. Case No. 3288-A, or CA-G.R. CR
No. 23485, erroneously numbered G.R. No. 143934), accused-
appellant is found guilty of Serious Physical Injuries (instead of
Frustrated Murder as found by the trial court) and is sentenced to an
indeterminate prison term of ten (10) months and twenty (20) days of
the minimum period of prision correccional minimum and medium, as
minimum, to one (1) year ten (10) months and twenty (20) days of the
medium period of prision correccional minimum and medium, as
maximum.

ERNESTO GARCES, Petitioner


---versus---
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. No. 173858, 17 July 2007, 3rd Division
The crime committed in the case at bar is simple rape, the penalty
for which under the Revised Penal Code is reclusion perpetua. Since
Pacursa was a minor when the crime was committed, the penalty must
be reduced by one degree, to reclusion temporal.[36] Applying the
Indeterminate Sentence Law and in the absence of aggravating and
mitigating circumstances, the maximum of the penalty shall be within
the medium range of reclusion temporal, or fourteen (14) years, eight
(8) months and one (1) day to seventeen (17) years and four (4)
months. The minimum of the indeterminate penalty shall be within the
range of the penalty next lower in degree, which is prision mayor,
ranging from six (6) years and one (1) day to twelve (12) years.[37]
With respect to petitioner, the penalty imposed upon accomplices
in a consummated crime is the penalty next lower in degree than that
prescribed for the felony.[38] Since simple rape is punishable with
reclusion perpetua, the penalty of reclusion temporal should also be
imposed on petitioner in its medium period in the absence of any
aggravating or mitigating circumstances. Applying the Indeterminate
Page 146 of 161
Sentence Law, the imposable penalty should range from prision mayor,
as minimum, to reclusion temporal in its medium period, as maximum.

[36] People v. Clores, Jr., G.R. No. 130488, June 8, 2004, 431
SCRA 210, 222.

[37] Reyes, Jr. v. Court of Appeals, 424 Phil. 829 (2002).

[38] Revised Penal Code, Art. 52.


**************************************

PEOPLE OF THE PHILIPPINES, Appellee


versus
MANUEL “BOY” HERMOCILLA, Appellant.
G.R. No. 175830, 2007 Jul 10, 3rd Division

In Family Case No. A-436, however, the penalty for rape by


sexual assault with any aggravating circumstance is reclusion
temporal. Applying the Indeterminate Sentence Law, the penalty
should be within the range of prision mayor or 10 years and 1 day to
12 years as minimum, and 17 years, 4 months and 1 day to 20 years
of reclusion temporal, as maximum.
***********************************
LEONIDAS EPIFANIO Y LAZARO, Petitioner
---versus---
PEOPLE OF THE PHILIPPINES, Respondent.
G.R. NO. 157057, 2007 Jun 26, 3rd Division)

Accordingly, the imposable penalty for the crime of attempted


murder, following Article 51 of the Revised Penal Code, is prision
correccional in its maximum period to prision mayor in its medium
period. Applying the Indeterminate Sentence Law, the minimum of the
penalty to be imposed should be within the range of arresto mayor in
its maximum period to prision correccional in its medium period, and
the maximum of the penalty to be imposed should be within the range
of prision correccional in its maximum period to prision mayor in its
medium period. Since no generic aggravating or mitigating
circumstance attended the commission of the crime of attempted
murder, the penalty should be two (2) years and four (4) months of
prision correccional, as minimum; and eight (8) years of prision mayor,
as maximum.
NOTE: The crime was committed on August 15, 1990 in Samal,
Davao. The penalty then imposable for MURDER was ---

Page 147 of 161


Art. 248. Murder. — Any person who, not falling within the
provisions of Article 246 shall kill another, shall be guilty of murder and
shall be punished by reclusion temporal in its maximum period to
death, if committed with any of the following attendant circumstances:

******************************************************
July 24, 1976
PRESIDENTIAL DECREE NO. 968, (PROBATION)
[as amended by P.D. 1257, P.D. 1990, and R. A. 9344]
Sec. 1. Title and Scope of the Decree. - This Decree shall be
known as the Probation Law of 1976. It shall apply to all offenders
except those entitled to the benefits under the provisions of
Presidential Decree numbered Six Hundred and three and similar laws.
Sec. 2. Purpose. - This Decree shall be interpreted so as to:
(a) promote the correction and rehabilitation of an offender by
providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a prison
sentence; and
(c) prevent the commission of offenses.
Sec. 3. Meaning of Terms. - As used in this Decree, the
following shall, unless the context otherwise requires, be construed
thus:
(a) "Probation" is a disposition under which a defendant, after
conviction and sentence, is released subject to conditions imposed by
the court and to the supervision of a probation officer.
(b) "Probationer" means a person placed on probation.
(c) "Probation Officer" means one who investigates for the court
a referral for probation or supervises a probationer or both.
Sec. 4. Grant of Probation.(SEE: Sec. 42, R. A. 9344, below) -
Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, 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;
Provided, That no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
conviction.
"Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed
with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.
"An order granting or denying probation shall not be appealable.".
[Amended by P.D. 1990]

Page 148 of 161


“Sec. 42, R. A. 9344, The Juvenile Justice and
Welfare Act of 2006 --- Probation as an Alternative to
Imprisonment. – The court may, after it shall have
convicted and sentenced a child (more than 15 but
below 18 who acted with discernment) in conflict with
the law, and upon application at any time, place the
child on probation in lieu of service of his/her sentence
taking into account the best interest of the child. For
this purpose, Section 4 of P.D. No 968, otherwise
known as the Probation Law of 1976, is hereby
amended accordingly.”

Sec. 5. Post-sentence Investigation. - No person shall be


placed on probation except upon prior investigation by the probation
officer and a determination by the court that the ends of justice and the
best interest of the public as well as that of the defendant will be
served thereby.
Sec. 6. Form of Investigation Report. - The investigation report
to be submitted by the probation officer under Section 5 hereof shall be
in the form prescribed by the Probation Administrator and approved by
the Secretary of Justice.
Sec. 7. Period for Submission of Investigation Report. - The
probation officer shall submit to the court the investigation report on a
defendant not later than sixty days from receipt of the order of said
court to conduct the investigation. The court shall resolve the
application for probation not later than fifteen days after receipts of said
report.[Amended by P.D. 1257]
Pending submission of the investigation report and the resolution
of the petition, the defendant may be allowed on temporary liberty
under his bail filed in the criminal case; Provided, That, in case where
no bail was filed or that the defendant is incapable of filing one, the
court may allow the release of the defendant on recognize the custody
of a responsible member of the community who shall guarantee his
appearance whenever required by the court.
Sec. 8. Criteria for Placing an Offender on Probation. - In
determining whether an offender may be placed on probation, the court
shall consider all information relative, to the character, antecedents,
environment, mental and physical condition of the offender, and
available institutional and community resources. Probation shall be
denied if the court finds that:
(a) the offender is in need of correctional treatment that can be
provided most effectively by his commitment to an institution; or
(b) there is undue risk that during the period of probation the
offender will commit another crime; or

Page 149 of 161


(c) probation will depreciate the seriousness of the offense
committed.
"Sec. 9. Disqualified Offenders. - The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more
than six years;
(b) convicted of subversion or any crime against the national security
or the public order;
(c) who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one month and one
day and/or a fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this
Decree; and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33
hereof." [Amended by P.D. 1990]
Sec. 10. Conditions of Probation. - Every probation order issued
by the court shall contain conditions requiring that the probationer
shall:
(a) present himself to the probation officer designated to
undertake his supervision at such place as may be specified in the
order within seventy-two hours from receipt of said order;
(b) report to the probation officer at least once a month at such
time and place as specified by said officer.
The court may also require the probationer to:
(a) cooperate with a program of supervision;
(b) meet his family responsibilities;
(c) devote himself to a specific employment and not to change
said employment without the prior written approval of the probation
officer;
(d) undergo medical, psychological or psychiatric examination
and treatment and enter and remain in a specified institution, when
required for that purpose;
(e) pursue a prescribed secular study or vocational training;
(f) attend or reside in a facility established for instruction,
recreation or residence of persons on probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to excess;
(i) permit to probation officer or an authorized social worker to
visit his home and place or work;
(j) reside at premises approved by it and not to change his
residence without its prior written approval; or
(k) satisfy any other condition related to the rehabilitation of the
defendant and not unduly restrictive of his liberty or incompatible with
his freedom of conscience.
Page 150 of 161
Sec. 11. Effectivity of Probation Order. - A probation order shall
take effect upon its issuance, at which time the court shall inform the
offender of the consequences thereof and explain that upon his failure
to comply with any of the conditions prescribed in the said order or his
commission of another offense, he shall serve the penalty imposed for
the offense under which he was placed on probation.
Sec. 12. Modification of Condition of Probation. - During the
period of probation, the court may, upon application of either the
probationer or the probation officer, revise or modify the conditions or
period of probation. The court shall notify either the probationer or the
probation officer of the filing such an application so as to give both
parties an opportunity to be heard thereon.
The court shall inform in writing the probation officer and the
probationer of any change in the period or conditions of probation.
Sec. 13. Control and Supervision of Probationer. - The
probationer and his probation program shall be under the control of the
court who placed him on probation subject to actual supervision and
visitation by a probation officer.
Whenever a probationer is permitted to reside in a place under
the jurisdiction of another court, control over him shall be transferred to
the Executive Judge of the Court of First Instance of that place, and in
such a case, a copy of the probation order, the investigation report and
other pertinent records shall be furnished said Executive Judge.
Thereafter, the Executive Judge to whom jurisdiction over the
probationer is transferred shall have the power with respect to him that
was previously possessed by the court which granted the probation.
Sec. 14. Period of Probation. -
(a) The period of probation of a defendant sentenced to a term
of imprisonment of not more than one year shall not exceed two years,
and in all other cases, said period shall not exceed six years.
(b) When the sentence imposes a fine only and the offender is
made to serve subsidiary imprisonment in case of insolvency, the
period of probation shall not be less than nor to be more than twice the
total number of days of subsidiary imprisonment as computed at the
rate established, in Article thirty-nine of the Revised Penal Code, as
amended.
Sec. 15. Arrest and Probationer; Subsequent Disposition. - At any
time during probation, the court may issue a warrant for the arrest of a
probationer for any serious violation of the conditions of probation. The
probationer, once arrested and detained, shall immediately be brought
before the court for a hearing of the violation charged. The defendant
may be admitted to bail pending such hearing. In such case, the
provisions regarding release on bail of persons charged with a crime
shall be applicable to probationers arrested under this provision.

Page 151 of 161


In the hearing, which shall be summary in nature, the probationer
shall have the right to be informed of the violation charged and to
adduce evidence in his favor. The court shall not be bound by the
technical rules of evidence but may be inform itself of all the facts
which are material and relevant to ascertain the veracity of the charge.
The State shall be represented by a prosecuting officer in any
contested hearing. If the violation is established, the court may revoke
or continue his probation and modify conditions thereof. If revoked, the
court shall order the probationer to serve the sentence originally
imposed. An order revoking the grant of probation or modifying the
terms and conditions thereof shall not be appealable.[Amended by P.D.
1257]
Sec. 16. Termination of Probation. - After the period of probation
and upon consideration of the report and recommendation of the
probation officer, the court may order the final discharge of the
probationer upon finding that he has fulfilled the terms and conditions
of his probation and thereupon the case is deemed terminated.
The final discharge of the probationer shall operate to restore to
him all civil rights lost or suspend as a result of his conviction and to
fully discharge his liability for any fine imposed as to the offense for
which probation was granted.
The probationer and the probation officer shall each be furnished
with a copy of such order.
Sec. 17. Confidentiality of Records. - The investigation report
and the supervision history of a probationer obtained under this Decree
shall be privileged and shall not be disclosed directly or indirectly to
anyone other than the Probation Administration or the court concerned,
except that the court, in its discretion, may permit the probationer of his
attorney to inspect the aforementioned documents or parts thereof
whenever the best interest of the probationer make such disclosure
desirable or helpful: Provided, Further, That, any government office or
agency engaged in the correction or rehabilitation of offenders may, if
necessary, obtain copies of said documents for its official use from the
proper court or the Administration.
Sec. 18. The Probation Administration. - There is hereby created
under the Department of Justice an agency to be known as the
Probation Administration herein referred to as the Administration, which
shall exercise general supervision over all probationers. xxx.
xxx xxx xxx
DONE in the City of Manila, this 24th day of July in the year of
Our Lord, nineteen hundred and seventy-six.
CASE

[GRN No. 108747 April 6, 1995]

Page 152 of 161


PABLO C. FRANCISCO, petitioner, vs. COURT OF APPEALS and
THE HONORABLE MAXIMO C. CONTRERAS, respondents.
EN BANC
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a
penitent qualified offender. It essentially rejects appeals and
encourages an otherwise eligible convict to immediately admit his
liability and save the state of time, effort and expenses to jettison an
appeal. The law expressly requires that an accused must not have
appealed his conviction before he can avail of probation. This outlaws
the element of speculation on the part of the accused - to wager on the
result of his appeal - that when his conviction is finally affirmed on
appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an "escape hatch"
thus rendering nugatory the appellate court's affirmance of his
conviction. Consequently, probation should be availed of at the first
opportunity by convicts who are willing to be reformed and
rehabilitated, who manifest spontaneity, contrition and remorse.
As conceptualized, is petitioner entitled to probation within the
purview of P.D. 968, as amended by P.D. 1257 and P.D. 1990?
Petitioner's woes started when as President and General
Manager of ASPAC Trans. Company he failed to control his outburst
and blurted.
You employees in this office are all tanga, son of a bitches (sic),
bullshit. Puro kayo walang utak ... Mga anak ng puta ... Magkano ba
kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple
grave oral defamation in five (5) separate Informations instituted by five
(5) of his employees, each Information charging him with gravely
maligning them on four different days, i.e., from 9 to 12 April 1980.
xxx xxx xxx
Fourthly, the petition for probation was filed by the petitioner out of
time x x X.
Fifthly, the Court notes that Section 4 of PD 968 allows the trial
court to grant probation after conviction, upon an application by the
defendant within the period of appeal, upon terms and conditions and
period appropriate to each case, but expressly rules out probation
where an appeal has been taken x x x"6
The motion for reconsideration was likewise denied.
xxx xxx xxx
The central issue therefore is whether petitioner is still qualified to
avail of probation even after appealing his conviction to the RTC which
affirmed the MeTC except with regard to the duration of the penalties
imposed.
Petitioner is no longer eligible for probation.
Page 153 of 161
xxx xxx xxx
Neither Sec. 4 of the Probation Law, as amended, which clearly
mandates that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
conviction," nor Llamado v. Court of Appeals 12 which interprets the
quoted provision, offers any ambiguity or qualification. As such, the
application of the law should not be subjected to any to suit the case of
petitioner. While the proposition that an appeal should not bar the
accused from applying for probation if the appeal is solely to reduce
the penalty to within the probationable limit may be equitable, we are
not yet prepared to accept this interpretation under existing law and
jurisprudence. Accordingly, we quote Mr. Justice Feliciano speaking for
the Court en banc in Llamado v. Court of Appeals.
xxx xxx xxx
Second. At the outset, the penalties imposed by the MeTC were
already probationable. xxx xxx
xxx
The multiple prison terms are distinct from each other, and if none
of the terms exceeds the limit set out in the Probation Law, i.e., not
more than six (6) years, then he is entitled to probation, unless he is
otherwise specifically disqualified. The number of offenses is
immaterial as long as all the penalties imposed, taken separately, are
within the probationable period. For, Sec. 9, par. (a), P.D. 968, as
amended, uses the word maximum, not total, when it says that "[t1he
benefits of this Decree shall not be extended to those x x x sentenced
to serve a maximum term of imprisonment of more than six years."
Evidently, the law does not intend to sum up the penalties imposed but
to take each penalty separately and distinctly with the others.
xxx xxx xxx
To demonstrate the point, let us take for instance one who is
convicted in a single decision of, say, thirteen (13) counts of grave oral
defamation (for having defamed thirteen [13] individuals in one
outburst) and sentenced to a total prison term of thirteen (13) years,
and another who has been found guilty of mutilation and sentenced to
six (6) years and one (1) day of prision mayor minimum as minimum to
twelve (12) years and one (1) day of reclusion temporal minimum as
maximum. Obviously, the latter offender is more perverse and is
disqualified from availing of probation.
xxx xxx xxx
Perhaps it should be mentioned that at the outset, petitioner, in
accordance with Sec. 3, par. (e), Rule 117 of the Rules of Court,21
should have moved to quash as each of the four (4) Informations filed
against him charged four (4) separate crimes of grave oral defamation,
committed on four (4) separate days. His failure to do so however may
now be deemed a waiver under Sec. 9 of the same Rule22 and he can
Page 154 of 161
be validly convicted, as in the instant case, of as many crimes charged
in the Information.
xxx xxx xxx

MENDOZA, J., dissenting:


I vote to reverse the judgment of the Court of Appeals in this case.
xxx xxx xxx
To regard probation, however, as a mere privilege, to be given to
the accused only where it clearly appears he comes within its letter is
to disregard the teaching in many cases that the Probation, Law should
be applied in favor of the accused not because it is a criminal law - it is
not - but to achieve its beneficent purpose. (Santos To v. Paño, 120
SCRA 8, 14 [1983]). The niggardly application of the law would defeat
its purpose to "help the probationer develop into a law-abiding and self-
respecting individual" (Baclayon v. Mutia, 129 SCRA 1481, 149 [ 1984],
per Teehankee, J.) or "afford [him] a chance to reform and rehabilitate
himself without the stigma of a prison record, to save government
funds: that may otherwise be spent for his food and maintenance while
incarcerated, and to decongest the jails of the country." (Del Rosario v.
Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J)
The approach followed by the Court in Atienza v. Court of
Appeals, 140 SCRA 391, 395 (1985) instead commends itself to me:
Regarding this, it suffices to state that the Probation Law was
never intended to limit the right of an accused person to present all
relevant evidence he can avail of in order to secure a verdict of
acquittal or a reduction of the penalty. Neither does the law require a
plea of guilty on the part of the accused to enable him to avail of the
benefits of probation. A contrary view would certainly negate the
constitutional right of an accused to be presumed innocent until the
contrary is proved.
As already stated, petitioner did not appeal primarily to seek
acquittal. Proof of this is that after the penalty imposed on him by the
MeTC had been reduced by the RTC so that he thereby became
qualified for probation, he did not appeal further. The majority says that
this was because he was afraid that if he did the penalty could be
increased. The possibility, however, was also there when he appealed
from the MeTC to the RTC. For by appealing the sentence of the
MeTC, petitioner took as much risk that the penalty would be raised as
the chance that he would be acquitted.
xxx xxx xxx
That the duration of a convict's sentence is determined by
considering the totality of several
xxx xxx xxx
Finally, it is said that there is a more fundamental reason for
denying probation in this case and that is that petitioner applied for
Page 155 of 161
probation only after his case had been remanded to the MeTC for the
execution of its decision as modified. But that is because Sec. 4
provides that "an application for probation shall be filed with the trial
court." In the circumstances of this case, petitioner had to await the
remand of the case to the MeTC, which necessarily must be after the
decision of the RTC had become final.
VITUG, J., separate opinion:
While I subscribe to the observation made by Mr. Justice Vicente
V. Mendoza in his dissenting opinion that an accused, who originally is
not qualified for probation because the penalty imposed on him by a
court a quo exceeds six (6) years, should not be denied that benefit of
probation if on appeal the sentence is ultimately reduced to within the
prescribed limit, I am unable, however, to second the other proposition
that multiple prison terms imposed by a court should be taken in their
totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I
concur with Mr. Justice Josue N. Bellosillo in his ponencia that in
determining the eligibility or disqualification of an application for
probation charged with, and sentenced to serve multiple prison terms
for, several offenses, "the number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the probational
period." The use of the work maximum instead of the word total in
Section 9, paragraph (a) of P.D. 968, as amended, should be enough
to reveal that such has been the legislative intent.

JUVENILE JUSTICE AND WELFARE COUNCIL


Dept. of Justice
DOJ Bldg., Padre Faura St., Ermita, Manila

COUNCIL RESOLUTION NO. 4


Series of 2006

RULES AND REGULATIONS IMPLEMENTING R.A. 9344, OR THE


“JUVENILE JUSTICE AND WELFARE ACT OF 2006”

RULE 29. Exemption from criminal liability


Rule 29.a. Who are exempt
As provided in Section 6 of the Act (R.A. 9344), the following shall be
exempt from criminal liability:
(1) A child fifteen (15) years of age or under at the time of the
commission of the offense;
(2) A child above fifteen (15) years but below eighteen (18) years
of age who acted without discernment at the time of the commission of
the offense.
Rule 29.b. Treatment of children exempt from criminal responsibility
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Children exempt from criminal liability as referred in this Rule shall
be subjected to an intervention program pursuant to Section 20 of the
Act and Part VII of these Rules.
Rule 29.c. Non-exemption from civil liability
As provided in Section 6 of the Act, the exemption from criminal
liability of children under these Rules does not include exemption from
civil liability, which shall be enforced in accordance with existing laws.

RULE 30. Age


Rule 30.a. Who determines the age; when and how
As provided in Rule 22, the law enforcement officer having initial
contact with the child, after taking the child into custody, shall
immediately determine the age of the child. In making such
determination, the law enforcement officer shall, consistent with
Section 7 of the Act, take any or all the following measures to ascertain
the age of the child:
(1) Obtain documents that show proof of the child’s age, such as:
(a) Child’s birth certificate;
(b) Child’s baptismal certificate; or
(c) Any other pertinent documents such as but not limited to
the child’s school records, dental records, or travel papers.

The law enforcement officer may obtain the above documents


from any of the following:
(a) ~ (e)
(2) When the above documents cannot be obtained or pending
receipt of such documents, the law enforcement officer shall exhaust
other measures to determine age by: (a) ~ (d)

Rule 30.b. In case of doubt, presumption of minority


In case of doubt as to the age of the child, after all measures are
exhausted to determine it, the age shall be resolved in his/her favor.
As provided in Section 7 of the Act, the child in conflict with the
law shall enjoy the presumption of minority. He/She shall enjoy all the
rights of a child in conflict with the law until he/she is proven to be
eighteen (18) years old or older.
Rule 30.c. If age is contested
As provided in Section 7 of the Act, any person contesting the age
of the child in conflict with the law prior to the filing of the information in
any appropriate court may file a case in a summary proceeding for the
determination of age before the Family Court which shall decide the
case within twenty-four (24) hours from receipt of the appropriate
pleadings of all interested parties.
xxx xxx xxx.

Page 157 of 161


RULE 31. Below the age of criminal responsibility
Rule 31.a. Immediate release of child; notify LSWDO (Local Social
Welfare and Development Officer)
As provided in Section 20 of the Act, if it has been determined that
the child taken into custody is fifteen (15) years old or below, the
authority which will have initial contact with the child has the duty to:
(1) Immediately release the child to the custody of his/her parents
or guardian, or in the absence thereof, the child’s nearest relative; and
(2) Notify the LSWDO for the determination of appropriate
intervention and prevention programs for the child.

REPUBLIC ACT 9344


JUVENILE JUSTICE AND WELFARE ACT OF 2006

TITLE VII
GENERAL PROVISIONS
CHAPTER I

EXEMPTING PROVISIONS

SEC. 57. Status Offenses. --- Any conduct not considered an


offense or not penalized if committed by an adult shall not be
considered an offense and shall not be punished if committed by a
child.
SEC. 58. Offenses Not Applicable to Children. --- Persons below
eighteen (18) years of age shall b exempt from prosecution for the
crime of vagrancy and prostitution under Art. 202 of the Revised Penal
Code, of mendicancy under P.D. 1563, and sniffing of rugby under P.D.
1619, such prosecution being inconsistent with the U.N. Convention on
the Rights of the Child: Provided, That said persons shall undergo
appropriate counseling and treatment program.

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Page 159 of 161
CIRCULAR NO. 63-97 October 6, 1997

SUBJECT: MODIFICATION OF CIRCULAR NO. 4-92-A ON


THE TRANSFER OF NATIONAL PRISONERS TO THE
BUREAU OF CORRECTIONS IN MUNTINLUPA, METRO
MANILA

Clarification has been sought by concerned Judges regarding


their authority to allow the commitment of national prisoners to national
penal institutions other than the main national penitentiary at the City of
Muntinlupa considering that Circular No. 4-92-A which directs all trial
judges to issue commitment orders of national prisoners immediately
after their conviction mentions only the penitentiary in Muntinlupa as
the institution to which these prisoners should be transferred. In the
Department of Justice Circular No. 4 of January 15, 1991, the
Secretary of Justice directed Provincial and City Prosecutors to file
with the proper court, immediately after the promulgation of the
judgment convicting a national prisoner, a manifestation requesting
said court to commit the prisoner directly to the national penal
institutions mentioned in his circular. These are:

1. National prisoners in Regions X and XI — to be committed


to the Davao Prison and Penal Farm at Panabo, Davao del
Norte;

2. National prisoners in Regions IX and XII — to be


committed to the San Ramon Prison and Penal Farm at
Zamboanga City, Zamboanga del Sur;

3. National prisoners in Region VIII — to be committed to the


Leyte Regional Prison at Abuyog, Leyte;

4. National prisoners in Palawan and Puerto Princesa City —


to be committed to the Iwahig Prison and Penal Farm at
Puerto Princesa, Palawan; and

5. National prisoners in Mindoro Oriental and Mindoro


Occidental — to be committed to the Sablayan Prison and
Penal Farm at Sablayan, Mindoro Occidental.
The purposes of Circular No. 4-92-A which are to decongest provincial, city and
municipal jails and to effect better control and supervision over national prisoners are still
served if these prisoners are transferred to the mentioned national penal institutions.
Accordingly, the Judges concerned may, in the exercise of sound discretion, favorably act on
the manifestations of prosecutors for direct commitment of national prisoners to these penal
institutions.

It is understood that: (a) all female national prisoners shall continue to be


committed to the Correctional Institution for Women at Mandaluyong, Metro
Page 160 of 161
Manila; and (2) all other national male prisoners not included in the foregoing
enumeration shall be committed to the New Bilibid Prison at Muntinlupa City.

October 6, 1997.

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