PRELIMINARY CONSIDERATIONS

LAW --- A body of rules of action or conduct [obligatory to all – subject to certain
exception, e.g., Art. 14 Civil Code ] 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.]
Art. 14 Civil Code: Penal laws and those of public security and safety shall be
obligatory upon all who live or sojourn in Philippine territory, subject to the principles of public
international law and to treaty stipulations.

1. CRIMINAL LAW, Defined --- Criminal law is that branch of municipal law (That
which pertains solely to the citizens and inhabitants of a state, as contradistinguish from
International Law.), which defines crimes, treats of their nature, and provides for their
punishment.

2. CRIME, Defined --- A crime is the COMMISSION or OMISSION (See Art. 208 RPC,
Prevaricacion - Negligence) 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 (a.k.a. Fiscal). 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 (duly noted by the RSP) 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withdrawn.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
(Revised Penal Code), it is called a FELONY (although it is not wrong to call felonies as
offenses). Oftentimes, our legal eagles and learned authors would use the term “offense”
in lieu of “felony.” (Interchangeably) This is true even with some of the provisions in the
Revised Penal Code.
If by a special act or law, e.g., by a P.D. (Presidential Decree) or R.A. (Republic Act),
it is called an OFFENSE. If by an ordinance, it is called an INFRACTION.

3. LIMITATIONS UPON THE POWER OF THE PHILIPPINE CONGRESS TO

ENACT PENAL LAWS:
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.];

Page 1 of 121
c. Penal laws must be of general application; and
d. No cruel, degrading, or inhuman punishment. Imposition of excessive fines is not allowed.
[Art. III, Sect. 19 (1) Bill of rights, 1987 Constitution ]

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.
N.B. --- See: Art. 2, Art. 22, ART. 62 (5), ART. 366 of the RPC. (See: ANG BENG, ET
AL., and Crisanto Tamayo, both on page 8)

(a) 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 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.
(Scratch my back and I will scratch your back.)
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. (Scratch my back and I will scratch your back.)

ARTICLE VI, SEC. 11, 1987 PHIL. CONSTITUTION

Page 2 of 121
 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.

REPUBLIC ACT NO. 75 October 21, 1946

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 (Distrain – to seize, as goods or chattels, for
debt.), 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.

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.

Page 3 of 121
 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)

(b) 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

Page 4 of 121
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,
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 bring 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 5 of 121
 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 (harmful) 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. Marcelo Jose and Tan Bo [10 Aug.1916],
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 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.

Page 6 of 121
 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 terms.
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 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.]

(c) 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

Page 7 of 121
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 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. El Chino Cuna (15
Dec. 1908), 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 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.

Page 8 of 121
 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. [Nov. 21,
1991, Aurora T. Aquino vs. Court of Appeals, Et Al.]

People v. Yu Hai, 15 AUG. 1956 ---- Finally, criminal statutes are to be strictly
construed against the government and liberally in favor of the accused. As it would
be more favorable to the herein accused to apply the definition of "light felonies" under
Article 9 in connection with the prescriptive period of the offense charged, the same
should be followed. Under Article 90, the offense charged, being a light offense,
prescribed in two months. As it was allegedly committed on June 26, 1954 and the
information filed only on October 22, 1954, the lower court correctly ruled that the
crime in question has already prescribed.

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 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. [ Sept. 30, 1958, PP vs. Alfonso
Gatchalian, En Banc]

d. The ruling in People v. Yabut, June 26, 1992, is further instructive, viz:
“Well established is the rule that when the inculpatory (Incriminatory) facts and
circumstances are capable of two (2) or more explanations, 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, May 26, 1995]

e. Also, in People v. Malapayon, 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.
SOME LEGAL MAXIMS
[maxim --- a principle or formula embodying a rule of conduct.]
(APHORISM –A short wise saying.)
a. IGNORANTIA LEGIS NEMINEM EXCUSAT. Ignorance of the law excuses no one
from compliance therewith. (“Ignorantia juris non excusat or ignorantia legis neminem
excusat”) [See: R.A. No. 386, page 4]
b. IN DUBIIS REUS EST ABSOLVENDUS. All doubts should be resolved in favor of
the accused.
c. ACTUS NON FACIT REUM, NISI MENS SIT REA --- The act does not make a
person a criminal unless his mind be criminal. Applies to DOLO only. In fact, a crime may

Page 9 of 121
be committed sans criminal intent in the following cases: (a) felonies committed by means
of Culpa; and (b) offenses punishable as mala prohibita. [ Luis A. Tabuena, petitioner, vs.
Hon. Sandiganbayan, and The People Of The Philippines, respondents. February 17, 1997
]
d. PLUS PECCAT AUTHOR QUAM ACTOR: The originator or instigator of a crime is
a worse offender than the actual perpetrator. (Principal by inducement)
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.
k. NULLUM CRIMEN NULLA POENA SINE LEGE. There is no crime where there is
no law punishing an act.
l. 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.(Applies to DOLO, but
not to CULPA)
m. ABERRATIO ICTUS- Criminal liability is incurred by any person committing a
felony, although the wrongful act be different from that which he intended.
n. ACTOR NON PROBANTE REUS ANSOLVITUR-When plaintiff has not sufficiently
proven his complaint, defendant must be absolved. A companion maxim is "he who alleges
the affirmative must prove it." Or that "the rule in procedure is that upon him who affirms
devolves the burden of proof."
o. ACTUS ME INVITO FACTUS NON EST MEUS ACTUS - 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.
p. DAMNUM ABSQUE INJURIA - Damage without injury. (Damage without legal
wrong.)
q. EJUSDEM GENERIS - Where general terms follow a particular enumeration, the
general terms include all those specifically enumerated. (Martin S. Emin, petitioner, vs.
Chairman Corazon Alma G. De Leon, Commissioners Thelma P. Gaminde and Ramon P.
Ereneta, Jr., of the Civil Service Commission, respondents., February 27, 2002, En Banc)
r. VERBA INTENTIONI, NON E CONTRA, DEBENT INSERVIRE - Words should be
made subservient to the intent not contrary to it.

PHIL. CONSUMERS FOUNDATION, INC., petitioner, vs. NTC and PLDT CO.,
respondents., (Aug 18, 1984, En Banc)
Any lawyer of modest sophistication knows that canons of statutory construction
march in pairs of opposite. Thus with the canons above mentioned we have the following
opposite: verba intentioni, non e contra, debent inservire (words ought to be more
subservient to the intent and not the intent to the words). Sutherland explains the limits of
literalism thus:
"The literal interpretation of the words of an act should not prevail if it creates a result
contrary to the apparent intention of the legislature and if the words are sufficiently flexible
to admit of a construction which will effectuate the legislative intention. The intention prevails

Page 10 of 121
over the letter, and the letter must if possible be read so as to conform to the spirit of the
act. 'While the intention of the legislature must be ascertained from the words used to
express it, the manifest reason and obvious purpose of the law should not be sacrificed to a
literal interpretation of such words.' Thus words or clauses may be enlarged or restricted to
harmonize with other provisions of an act. The particular inquiry is not what is the abstract
force of the words or what they may comprehend, but in what sense were they intended to
be understood or what understanding do they convey as used in the particular act," (Vol. 2A
Statutory Construction, pp. 65-66 [1972].)
It is an elementary rule in statutory construction that the word "may" in a statute is
permissive while the word "shall" is mandatory. The rule, however, is not absolute.

s. STARE DECISIS – Adherence to judicial precedents is known as the Doctrine of

Stare Decisis. [Doctrine of Stare Decisis is entitled to respect. Stability in the law, particularly
in the business field, is desirable. But idolatrous reverence for precedent, simply as
precedent, no longer rules. More important than anything else is that the court should be
right. And particularly it is not wise to subordinate legal reason to case law and by so doing
perpetuate error xxx.
( PHIL. TRUST CO. and SMITH, BELL & COMPANY, LTD. vs. L. P. MITCHELL ET AL., 8
Dec. 1933)]
t. PRO REO DOCTRINE – See page 9 (Rules of Construction of Penal Laws)

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."
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 (01 Jan. 1932).

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.];

Page 11 of 121
 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 preceding 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 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 by 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]:

Page 12 of 121
 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

) plus Lack of skill or Lack of foresight.

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.

PP vs. CASTILLO, ET AL., accused. RAYMUNDO, appellant.(01 Feb.1946 )

“In view of the facts stated above, said judgment of conviction is untenable, on the
ground that the offense of frustrated homicide requires the concurrence of the essential
requisite of intent to kill, which is incompatible with the charge of reckless imprudence;
although a charge for physical injuries, serious or less serious, through reckless imprudence,
is legally proper under the law; as in that case the act sought to be punished is the material
damage or injury actually done.”

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].

PP vs. FORTICH and GAID, 13 Nov. 1997

“In Isidoro Mondragon v. People (30 June 1966), it was held that the intent to kill
being an essential element of the offense of frustrated or attempted homicide, said element
must be proved by clear and convincing evidence and with the same degree of certainty as
is required of the other elements of the crime. The inference of intent to kill should not be
drawn in the absence of circumstances sufficient to prove such intent beyond reasonable
doubt.”

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

Page 13 of 121
injuries.( PP v. Glino, 04 Dec. 2007: An essential element of murder and homicide, whether
in their consummated, frustrated or attempted stage (ART. 6), is intent of the offenders to
kill the victim immediately before or simultaneously with the infliction of injuries.) Intent to
kill is a specific intent which the prosecution must prove by direct or circumstantial evidence,
while general criminal intent is presumed from the commission of a felony by dolo. In PP v.
Delim [28 Jan. 2003], the Court had occasion to explain the rudiments of proving intent to
kill in crimes against persons. It may consist in: (1) the means used by the malefactors; (2)
the nature, location and number of wounds sustained by the victim; (3) the conduct of the
malefactors before, at the time of, or immediately after the killing of the victim; (4) the
circumstances under which the crime was committed; and (5) the motives of accused. If the
victim dies as a result of a deliberate act of the malefactors, intent to kill is presumed.

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

skill or deficiency of perception (PP v. Ting Lan Uy Jr., 17 Nov. 2005).

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] (See: PP v. Ting Lan Uy Jr., 17 Nov. 2005 ---- . Art. 217 RPC: Malversation may be
committed either through a positive act of misappropriation of public funds or property or passively
through negligence by allowing another to commit such misappropriation).

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 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. ( As a general rule, mistake of fact or good
faith of the accused is a valid defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the law is not an excuse because
everyone is presumed to know the law. Ignorantia legis neminem excusat. [Manuel v.
PP, 29 Nov. 2005])

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

Page 14 of 121
though specially mitigated by circumstances presently to be
mentioned.
2. CASE AT BAR DISTINGUISHED FROM UNITED STATES
vs. AH CHONG (19 March 1910). -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. 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 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. (Reckless Imprudence, PP vs. Francisco Sara, 15
Aug. 1931) In the words of Viada. "para que se califique un hecho de
imprudencia espreciso que no hay amedia doenél maliciani 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 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

Page 15 of 121
 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 willfully done, a mistake in the identity of the
intended victim cannot be considered as reckless imprudence
(PP vs. Gona [Mansaca], 15 Mar. 1930 ) 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.

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.
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, 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] (INTOD v. C.A. &
PP, 21 OCT. 1992)

ANNOTATIONS
First Paragraph

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

committing an intentional 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

Page 16 of 121
 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 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, En Banc 16 Nov. 1908). 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., 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.
"A prior and REMOTE CAUSE cannot be made the basis of an action if
such remote cause did nothing more than furnish 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

Page 17 of 121
 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,
Feb. 28, 1947, El Pueblo de Filipinas v. Raymundo Rellin]

Second Paragraph
Impossible Crime (Immediately consummated)

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.
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 crimen
nulla poena sine lege.

Page 18 of 121
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 18.]
ANNOTATIONS

a. Felonies committed by culpa are immediately consummated. Art. 6 is inapplicable

to crimes that are mala prohibita. Impossible crimes are immediately consummated

b. Direct overt act --- an outward act done in pursuance and manifestation of a
criminal intent or design.
PP vs. LIZADA, Jan 24, 2003 (En Banc)
The raison d’etre for the law requiring a direct overt act is that, in a majority of cases,
the conduct of the accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is that quality of
being equivocal that must be lacking before the act becomes one which may be said to be
a commencement of the commission of the crime, or an overt act or before any fragment of
the crime itself has been committed, and this is so for the reason that so long as the
equivocal (having 2 or more meaning) quality remains, no one can say with certainty what
the intent of the accused is. It is necessary that the overt act should have been the ultimate
step towards the consummation of the design. It is sufficient if it was the "first or some
subsequent step in a direct movement towards the commission of the offense after the
preparations are made. The act done need not constitute the last proximate one for
completion. It is necessary, however, that the attempt must have a causal relation to the
intended crime. In the words of Viada, the overt acts must have an immediate and
necessary relation to the offense.

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]

Page 19 of 121
 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].

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., 21
June 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

Page 20 of 121
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 overt
acts. The law on frustrated rape is a dead statute. [People vs. Aca-ac, 20 April 2001] (New
Anti-Rape Law, R.A. 8353)

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 no longer applies.

PP v. Antonino Hernandez, 05 Dec. 1929

The trial court held that the crime committed was only frustrated arson. We agree
with the Attorney-General that the crime was consummated. The appellant did in fact,
set fire to the roof of the house, and said house was in fact partially burned. With this, the
crime of arson was consummated, notwithstanding the fact that the fire was afterwards
extinguished, for, once the fire has been started, the consummation of the crime of arson
does not depend upon the extent of the damage caused. This court has so held in the cases
of United States vs. Go Foo Suy and Go Jancho (5 Sept. 1913) and United States vs. Po
Chengco (23 Phil., 487).

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 the 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: See Art. 9 re amendments as per R. A. 10951]
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.

Page 21 of 121
 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
arresto menor or a fine not exceeding 40,000 pesos or both; is provided.(R.A. 10951, AUG.
31, 2017)

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.

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
March 5, 2018 G.R. No. 217974
PP, Plaintiff-Appellee vs. REZOR JUANILLO MANZANO, Accused-Appellant.

Page 22 of 121
 On the first element, the consistent teaching by the Court
on unlawful aggression is as follows:
Unlawful aggression on the part of the victim is the
primordial element of the justifying circumstance of self-defense.
Without unlawful aggression, there can be no justified killing in
defense of oneself. The test for the presence of unlawful
aggression under the circumstances is whether the aggression
from the victim put in real peril the life or personal safety of the
person defending himself; the peril must not be an imagined or
imaginary threat. Accordingly, the accused must establish the
concurrence of three elements of unlawful aggression, namely:
(a) there must be a physical or material attack or assault; (b) the
attack or assault must be actual, or, at least, imminent; and (c)
the attack or assault must be unlawful.

Unlawful aggression is of two kinds: (a) actual or material

unlawful aggression; and (b) imminent unlawful aggression.
Actual or material unlawful aggression means an attack with
physical force or with a weapon, an offensive act that positively
determines the intent of the aggressor to cause the injury.
Imminent unlawful aggression means an attack that is impending
or at the point of happening; it must not consist in a mere
threatening attitude, nor must it be merely imaginary, but must
be offensive and positively strong (like aiming a revolver at
another with intent to shoot or opening a knife and making a
motion as if to attack). Imminent unlawful aggression must not
be a mere threatening attitude of the victim, such as pressing his
right hand to his hip where a revolver was holstered,
accompanied by an angry countenance, or like aiming to throw
a pot.

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 (or rather) 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]

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 [PP v. Jaurigue, 21 Feb. 1946 --- A beautiful woman is
said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the
only true nobility. And they are the future wives and mothers of the land Such are the reasons
why, in the defense of their honor, when brutally attacked, women are permitted to make
use of all reasonable means available within their reach, under the circumstances.
Criminologists and courts of justice have entertained and upheld this view.]

Page 23 of 121
 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, 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?

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

Page 24 of 121
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. Augusto Loreto Ringor, Jr., (1999 Dec 9, En Banc).]
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]

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. Mariano
Batungbacal, 1918 Jan 10) We have stated that the defendant was justified in believing
reasonably that the lives of his two children and that of Hilaria Tianko were in imminent peril.
But we can say more. We agree that Hilaria Tianko's life was in fact in imminent peril. The
deceased, from the kitchen stairs, had already resolutely assaulted her with a bolo, and she
was able to escape the blow only by having taken timely flight with the children. Undoubtedly,
if the deceased had overtaken Hilaria in the sala of the house, where the defendant was
sleeping, the aggression would have been consummated there. The danger, as regard the
person of Hilaria Tianko, was not apparent in the defendant's mind, under the circumstances
surrounding him, but it was also a real danger.
For the foregoing reasons, and in consideration of the fact that, according to the
evidence, the assaulted parties did not provoke the assault, nor was the defendant moved
by sentiments of revenge or resent, or any other unlawful motive, and finding that the
defendant acted in lawful defense of the persons of his two children and Hilaria Tianko, we
hold that he should be exempted from criminal liability, and we acquit him, with the costs de
Officio. So ordered.]

Page 25 of 121
 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. Elezer Galapin & Ernesto Beira, Jr., 31 July 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, 3 June 1975]

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 & Galabo v. CA & PP, 15

January 2004]

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, 8 July 1999.]
The provocation must be sufficient and should immediately precede the act. [People
v. Pedro Pagal, (25 Oct. 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, 22 Nov. 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.

Page 26 of 121
 In the present case, the remarks of Lingan, which immediately preceded the act of
petitioner, constituted sufficient provocation.
In People v. Alberto Macaso,(30 June 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 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. (and that the latter be not induced by
revenge, resentment, or other evil motive.TORING)

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.

CASE: U.S. 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. [PP v. Honorato Navarro, 3 Sept. 1998. Moreover,
to properly invoke the justifying circumstance of defense of strangers, the person defending

Page 27 of 121
must not be induced by revenge, resentment or other evil motive (Art. II, par. 3, Revised
Penal Code)]

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. Sabino
Aviado, April 1, 1918, En Banc]

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. SilvinoValdez, March 4, 1933] This court stated
in the case of U.S. vs. Batungbacal (10 Jan. 1918): "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 repel the aggression, was necessary, then the defendant in this cause
undoubtedly acted in lawful defense of Hilaria Tianko and his two children." In that
case the deceased was pursuing the said children with bolo in hand and with his arm
raised as if ready to strike with his weapon when he was shot dead by the accused.
We held that in view of the imminence of the danger, the act of the defendant could
be considered reasonably necessary to repel or prevent the aggression because its
object was "to render the aggressor harmless".

In the instant case, considering the suddenness of the disturbance and the
startling and disturbing effect upon the appellant's mind which must have resulted
from hearing the screams of his wife calling for help; and coming, as he did without
previous knowledge, upon an armed man engaged in a murderous attack in his own
house in the presence of his wife, he might reasonably have assumed that he had to
deal with a desperate or possibly an insane person who had to be rendered harmless.

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 for the indemnity of the gross
average in so far as is required of each one of these objects respectively.(AGBAYANI
– COMMERCIAL LAWS OF THE PHILS.)

Page 28 of 121
 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.]

[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.,

Page 29 of 121
 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 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 25, 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 30 of 121
 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.

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. (See: R.A. 9344, Juvenile
Justice and Welfare Act of 2006 “RULE 29: Exemption from criminal liability”)

Page 31 of 121
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: (Amended by R.A. 10630, year 2013)
§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 in consultation
with the child and to the person having custody over the child. If the parents,
guardians or 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;

Page 32 of 121
 (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.

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

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:

Page 33 of 121
Art. 12. Circumstances which exempt from criminal liability. The following are exempt
from criminal liability:
xxx xxxxxx
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

[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 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

Page 34 of 121
 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, [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 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

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 invite 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, 9 July 1984]
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

Page 35 of 121
 person under the 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, 28
Sept.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.
Eustaquio Loreno, 9 July1984)

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

More recently, in the case of People v. Loreno (9 July 1984),

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.

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. [December 22, 1966]

Page 36 of 121
 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. [June 23, 1999]

A buy-bust operation is a form of entrapment, which in recent

years has been accepted as a valid 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,
January 22, 1999]

k. ABSOLUTORY CAUSES: People v. Doria, 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(Estafa) 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.

Page 37 of 121
 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

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 :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. (But see R.A. 9344, page 43)

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 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:

Page 38 of 121
 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, [30 OCT. 1996] viz:
“Equally well-known and well-understood by now are the requirements in order for
self-defense to be appreciated. The accused must prove that there was unlawful
aggression by the victim, that the means employed to prevent or repel the unlawful
aggression were reasonable, and that there was lack of sufficient provocation on his
part. And having admitted that he killed his nephew Dante Deopante, "the burden of
the evidence that he acted in self-defense was shifted to the accused-appellant. It is
hornbook doctrine that when self-defense is invoked, the burden of evidence shifts to
the appellant to show that the killing was justified and that he incurred no criminal
liability therefor. He must rely on the strength of his own evidence and not on the
weakness of the prosecution's evidence, for, even if the latter were weak, it could not
be disbelieved after his open admission of responsibility for the killing. Hence, he
must prove the essential requisites of self-defense aforementioned.

In the case at bar, appellant failed to prove unlawful aggression by the victim,
hence, his claim of self-defense cannot be sustained. The self-serving and
unsupported allegation of appellant that he wrested the knife away from the victim
while they were struggling and rolling around on the ground (in the process sustaining
only a minor scratch on his little finger and abrasion on the right knee) does not inspire
belief, when contrasted with the positive and categorical eyewitness accounts of
Renato Molina and Manolo Angeles that appellant ran after and stabbed the victim.
The latter's testimonies are corroborated by the number and extent of the stab
wounds sustained by the victim.

People vs. Cabellon and Gaviola

[GRN 29221 August 8, 1928]

Page 39 of 121
 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.
(ALREADY OVERTURNED, see below)

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.
SEE LATEST: R. A. 9344, JUVENILE JUSTICE AND WELFARE ACT of
2006 (as amended by R.A. 10630, year 2013). 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.

Page 40 of 121
 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, 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.
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.

Page 41 of 121
 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.

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. Sergio
Amamangpang, (2 July 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. 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, 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

Page 42 of 121
 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;
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]

Page 43 of 121
 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; (Sometimes used as QUACs )
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 (including the SACs) and the QUACs

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)] [PP v. Torres, (EN BANC) March 16, 2004]. EXPRESSIO UNIUS

Page 44 of 121
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] [See latest: Section 29 of RA 10591, July
23, 2012]

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:

(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.

Page 45 of 121
 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 (Home – when
away, there is always the intend to return.
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. 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 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 LupongTagapamayapa --- 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.

Page 46 of 121
 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, [18 April 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 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. [U.S. vs. J. RAMOS ET AL. ,April 1, 1902.] Especially
if there exists a means of communication (passage) between that place and the
house.
3.j. Case:
People vs. Perreras, 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 PP v. Antonio Reyes, decided En Banc, 13 April
2004.
3.n. PP v. Amado Daniel, 20 Nov. 1978: 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.[ Although Margarita was merely renting a bed space in a boarding house, her room
constituted for all intents and purposes a "dwelling" as the term is used in Article 14(3),
Revised Penal Code. It is not necessary, under the law, that the victim owns the place
where he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the place is his home
the sanctity of which the law seeks to protect and uphold.]
3.o. PP v. Alcala, 29 Dec. 1922: “Dwelling” includes dependencies, staircase,
and enclosures under the house.

Page 47 of 121
(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 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)]

Page 48 of 121
(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 (dearth) 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." [PP vs. Fortich, Nov.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]
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

Page 49 of 121
 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 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; Robbery with 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. 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)

(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.

Page 50 of 121
 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 previously 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., 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 (Revised Penal Code).
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.

Page 51 of 121
 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.”
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 (R.A. 9346 prohibits the imposition of the Death
Penalty in the Philippines ). Art. 320 as amended by P.D. 1744 (amending the law
on Arson) 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. Hermosilla, 11 Sept. 1915:
In the commission of the crime there are no extenuating nor aggravating circumstances to
be considered, not even that of premeditation, for, as a general rule, in crimes against
property such as, among others, those of robbery, theft, and estafa, the perpetrator thereof
resolves to perform the preconceived act only after having carefully thought out the method
by which he intends to accomplish it. Premeditation, therefore, is a circumstance ordinarily
inherent in the commission of such crimes.)(PP v. Silverio Daos, Apr. 27, 1934) 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)

Page 52 of 121
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 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. Silverio 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
identification is immaterial. [PP v. Cabato, April 18, 1988; citing People v. Veloso,
Feb. 25, 1982]

(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

Page 53 of 121
 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).

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. Reneja,
Feb. 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]

Page 54 of 121
 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, 18 April 1997): Victim is Rodrigo O. Cabual, a
12 year-old boy. 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]
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 (ob-lo-kwee) 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;
(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.

Page 55 of 121
 (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.]

(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]

Page 56 of 121
 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.
ANNOTATIONS
. RELATIONSHIP:

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

xxx xxx xxx
The death penalty (R.A. 9346 prohibits the imposition of the Death Penalty in the
Philippines )) 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.

Page 57 of 121
 e. In parricide, where relationship is an element, relationship is not considered.

f. Art. 263 of the RPC provides:

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.

g. The Child and Youth Welfare Code, P.D. 603: (see also RA 7610 & RA 9344 of
2006)
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:

Page 58 of 121
 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]

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 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]

Page 59 of 121
 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)
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, August 16, 1999, p. 16; People v. Abrera, 12 Dec. 1997)].
N.B. --- This is about passive presence, PP v. Madera, infra.
Conspiracy transcends mere companionship [People v.
Quinao, 13 Mar. 1997]; [People v. Manuel, 28 July 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 (Arcadio
Aniel, 21 Feb. 1980); People v. Francisco Izon, et al., 16 Oct.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

Page 60 of 121
Commit it [Art. 8, RPC]. To 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., 27 Feb. 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, 26 July 1988].

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.
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

Page 61 of 121
 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 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 and Cordero, Feb. 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

Page 62 of 121
 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 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 TO ROB. 2. XYZ CONSPIRED TO ROB.

XYZ --- ROB XYZ –-- ROB
XY --- RAPE “A” XY --- RAPE “A”
Z --- NO KNOWLEDGE ABOUT Z --- HAS KNOWLEDGE OF THE RAPE
THE RAPE –OR- HAS AND DID NOT ENDEAVOR TO PREVENT
KNOWLEDGE BUT ITS COMMISSION.
ENDEAVORS TO PREVENT ITS
COMMISSION -OR- NO CHANCE CRIME: XYZ --- ROBBERY WITH RAPE
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

Page 63 of 121
 1. WXYZ --- ROB 2. WXYZ --- ROB
WXY --- RAPE “A” WXY --- RAPE “A”
Z --- ENDEAVORS TO PREVENT Z --- DID NOT ENDEAVOR TO PREVENT
THE RAPE. THE RAPE. [WITH OR WITHOUT
CRIMES: WXY --- ROBBERY W/ KNOWLEDGE IS IMMATERIAL
RAPE BECAUSE OF THE 2nd PAR. OF ART. 296.]
Z --- ROBBERY ONLY
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. Apolonio ADRIANO, 22 Jan. 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 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."

Page 64 of 121
 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. "

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. [PP vs. Parungao, Nov. 28, 1996, EN BANC]

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

FORCE&IMPULSE OF ANUNCONTROLLABLE 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. [PP 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 participates to a certain point in the common criminal
design. [PP vs. Elefaño, Jr., et al., November 25, 1983]

Page 65 of 121
 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 PP vs. Tamayo, 17 Nov. 1922, 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 (17 Feb. 1923), 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.

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;

Page 66 of 121
 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, 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,

Page 67 of 121
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 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.

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,

Page 68 of 121
 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., 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

Page 69 of 121
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 such laws a final sentence has been pronounced and the convict is serving the same.
[See page 8 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: (As regards rape, see Art. 266-C or R.A. 8353)

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

Page 70 of 121
 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.
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.
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:

Page 71 of 121
 Death. (R.A. 9346 debars the imposition of the death penalty.) Debar: exclude,
prohibit.

Afflictive penalties:
Reclusion perpetua, [ 20 Y, 1 D to 40 Y, but still considered indivisible.]
Reclusion temporal, (12y, 1d ~ 20y)
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor. (6y, 1d ~ 12y)
Correctional penalties:
Prision correccional, (6m, 1d ~ 6y)
Arresto mayor, (1m, 1d ~ 6m)
Suspension,
Destierro.
Light penalties:
Arresto menor, (1d ~ 30d)
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
1,200,000 pesos; a correctional penalty, if it does not exceed 1,200,000 pesos but is not
less than 40,000 pesos; and a light penalty if it less than 40,000 pesos. (Amended by: R.A.
10951, 29 May 2013)

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

Art. 27. (Sec. 21 of R. A. 7659) 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.

Page 72 of 121
 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.
NOTE: After serving 30 years, the prisoner may be pardoned.
See also Art. 70: Longest period of imprisonment is 40 years.

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 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

Page 73 of 121
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 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.

Page 74 of 121
 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 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): (Subsidiary: secondary in importance)
:
1. If the principal penalty imposed be prision correccional or arresto and fine, he
shall remain under confinement until his fine 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.

Page 75 of 121
 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 of sentence,
unless such accessory penalties have been expressly remitted in the pardon. [NOTE: R.A.
9346 debars the imposition of the DEATH PENALTY]

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.

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.

Page 76 of 121
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. [NOTE: R.A. 9346 debars the imposition of the DEATH PENALTY]
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 signature of only the remaining justices shall be required.

Art. 48. Penalty for complex crimes. — When a single act constitutes two or more
grave or less grave felonies, or when an offense is a necessary means for committing the
other, the penalty for the most serious crime shall be imposed, the same to be applied
in its maximum period.

a. Mala prohibita are excluded. (But se PP v. Malinao, [page 83]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

Page 77 of 121
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 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, March
19, 1997]

1. Compound Complex (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 (i.e. not “indispensable” just
to facilitate) 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.,

2004 Feb 16, En Banc)
N.B. --- BUT see P.D. 1866 as amended by R.A. 8294 & R.A. 10591 (July 23, 2012)
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 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

Page 78 of 121
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

(NOW: R.A. 10591: Murder or Homicide with the
use of an illegally possessed firearm)
"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 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)

Page 79 of 121
 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 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 xx " (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 veterans’ 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," under which

Page 80 of 121
 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 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.

Page 81 of 121
 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 13 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) 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 (13 Dec. 1993) 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.

Page 82 of 121
 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." [
Reiterated in 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.

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. (Error en personae only) — 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: (Art. 49) Apply the maximum of the lesser penalty. Art. 48
(complex crimes) imposes the penalty for the more serious crime in its maximum period.

Page 83 of 121
 f. Art. 49 applies only in (a) Error en personae.

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.

TABULAR REPRESENTATION [See also Art. 60, infra.]

Consummated Frustrated Attempted
Principal Let x be the penalty x - 1 degree x – 2 degrees
for the principal in a
consummated
felony.
Accomplice x – 1 degree x – 2 degrees x – 3 degrees
Accessory [Art. 16 -- x – 2 degrees x- 3 degrees x – 4 degrees
- 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

Page 84 of 121
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 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.

Page 85 of 121
 PENALTIES

Divisible penalties are divided into three [3] equal portions. Each portion is known as
a period. If there is an ordinary mitigating 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 (Disbarred by R.A. 9346, June 24, 2006)
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional
6. Arresto mayor
7. Destierro (same as prision correccional)
8. Arresto menor
9. Public censure
10. Fine (see Art. 26)

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 (See Art. 26 page 77)

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.
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, 10 Apr. 1946, 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.

Page 86 of 121
 1. Death - - - - - - - - - prescribed
2. Reclusion perpetua - - - - penalty
3. Reclusion temporal -- max
med
min one degree lower
4. Prisionmayor ------ 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
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

Page 87 of 121
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 (10 Apr. 1946), 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 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

Page 88 of 121
 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

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 be Penalty to

prescribed for imposed upon imposed upon imposed upon the be imposed
the crime the principal in the principal in accessory in a upon the
a frustrated an attempted frustrated crime, accessory in
crime, and the crime, the and the accompli- an
accomplice in a accessory in the ces in an attempted
consummated consummated attempted crime
crime crime, and the crime
accomplices in a
frustrated crime
First Death Reclusion Reclusion Prision mayor Prision
Case perpetua temporal correccional

Second Reclusion Reclusion Prision mayor Prision Arresto

Case perpetua to temporal Correccional mayor
death
Third Reclusion Prision mayor Prision Arresto mayor in Fine and
case temporal in its in its maximum correccional in its maximum arresto
maximum period to its maximum period to prision mayor in its

Page 89 of 121
 period to reclusion period to prision correccional in minimum
death temporal in its mayor in its its medium and medium
medium medium period. period. periods.
period.
Fourth Prision mayor Prision Arresto mayor in Fine and arresto Fine
Case in its correccional in its maximum mayor in its
maximum its maximum period to prision minimum and
period to period to correccional in medium periods.
reclusion prision mayor its medium
temporal in in its medium period.
its medium 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 gain in
the commission of any crime.

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;

Page 90 of 121
 (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(theft), 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 (hurto), 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.

(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 (25 Aug. 1928)] [People vs. Montera (11 Aug. 1931)].

(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. Gervasio Santiago, 14 Nov. 1930) 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

Page 91 of 121
mitigating or aggravating circumstances that may have attended the commission of the
deed.
In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating
circumstance, the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances and there is
no aggravating circumstance, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstances
and there is no aggravating circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the
commission of the act, the court shall reasonably allow them to offset one another in
consideration of their number and importance, for the purpose of applying the penalty
in accordance with the preceding rules, according to the result of such compensation.

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

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

Page 92 of 121
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, 23 April 2006)
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 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 praeterintentionem,
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:

Page 93 of 121
 1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 temporal absolute disqualification.
11. Suspension from public office, the right to vote and be voted for, the right to
follow a profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule next preceding, the maximum duration of
the convict's sentence shall not be more than three-fold the length of time corresponding to
the most severe of the penalties imposed upon him. No other penalty to which he may be
liable shall be inflicted after the sum total of those imposed equals the same maximum
period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule the duration of perpetual penalties ( penaperpetua)
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

Page 94 of 121
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 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. — 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 included Time included Time included Time included

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

Reclusion From 12 years From 12 years From 14 years, From 17 years,

temporal and 1 day to 20 and 1 day to 14 8 months and 1 4 months and 1
years. years and 8 day to 17 years day to 20 years.
months. and 4 months.
Prision mayor, From 6 years From 6 years From 8 years From 10 years
absolute and 1 day to 12 and 1 day to 8 and 1 day to 10 and 1 day to 12
disqualification years. years. years. years
and special
temporary
disqualification.

Page 95 of 121
 Prision From 6 months From 6 months From 2 years, 4 From 4 years, 2
correccional, and 1 day to 6 and 1 day to 2 months and 1 months and 1
suspension and years. years and 4 day to 4 years day to 6 years
destierro. months. and 2 months.
Arresto mayor From 1 month From 1 to 2 From 2 months From 4 months
and 1 day to 6 months. and 1 day to 4 and 1 day to 6
months. months. months.
Arresto menor From 1 to 30 From 1 to 10 From 11 days to From 21 days to
days. days. 20 days. 30 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.
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. (See Circular No. 63-97, page 128)
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, 23 April
2006. The above discussion no longer holds true.

Section Two. — Execution of principal penalties.

Page 96 of 121
Art. 81. ~ Art. 85. [No more death penalty in our jurisdiction, R.A. 9346]
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. (See: pages 126 & 127 )

Art. 87. Destierro. — Any person sentenced to destierro shall not be permitted to enter
the place or places designated in the sentence, nor within the radius therein specified, which
shall be not more than 250 and not less than 25 kilometers from the place designated.

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. (See: pages 126 & 127)

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

DECISION
SECOND DIVISION
DAVIDE, JR., J :
xxx xxxxxx.
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:
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.

Page 97 of 121
 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 arresto 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 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

Page 98 of 121
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, (30 Apr. 1979) (But see: PP v. De los Santos, March 27, 2001, page 80) 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, 14 Feb. 1927; 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 complaint for
the lesions 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
PambansaBlg. 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 court has jurisdiction over offenses punishable by censure,
such as reckless imprudence resulting in slight physical injuries.

Page 99 of 121
 In Uy Chin Hua v. Dinglasan, (30 June1950) 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.
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

Page 100 of 121

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.
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

Page 101 of 121

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:

"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. (See: Isabelita Reodica case, p. 103)

Page 102 of 121

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 AdlaidaTanega 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) 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 (page 118)
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 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

Page 103 of 121

 “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.”

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
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.

Page 104 of 121

 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.

Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of

establishments. — In default of the persons criminally liable, innkeepers, tavernkeepers, and
any other persons or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general or
special police regulation shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or
theft within their houses from guests lodging therein, or for the payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may have given them
with respect to the care and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation of persons unless committed by the innkeeper's
employees.

Art. 103. Subsidiary civil liability of other persons [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.

Page 105 of 121

Art. 105. Restitution. — How made. — The restitution of the thing itself must be made
whenever possible, with allowance for any deterioration, or diminution of value as
determined by the court.
The thing itself shall be restored, even though it be found in the possession of a third person
who has acquired it by lawful means, saving to the latter his action against the proper person,
who may be liable to him.
This provision is not applicable in cases in which the thing has been acquired by the third
person in the manner and under the requirements which, by law, bar an action for its
recovery.

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 (reimbrsement) 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.

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.

Page 106 of 121

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 (Comprehensive Dangerous Drugs

Act of 2002). 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.
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

Page 107 of 121

 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 (medium because of 1 m.c.)
min. – prision correccional – whole range (supra)

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

Page 108 of 121

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
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 xxxxxx

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 xxxxxx
Complaining witness Emily Mendez lost her left index finger by amputation as a result
of the crime, and appreciating treachery as an aggravating circumstance, 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 xxxxxx
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 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)

Page 109 of 121

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 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

Page 110 of 121

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---

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]

“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

Page 111 of 121

 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
(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;

Page 112 of 121

 (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.
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.

Page 113 of 121

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.
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 xxxxxx
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]

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

Page 114 of 121

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 xX.
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.
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 "[t]he benefits of this Decree shall not be extended to those x xx
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.

Page 115 of 121

 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 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 probation only after his case had been remanded

Page 116 of 121

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 word 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
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

Page 117 of 121

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 xxxxxx.

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
(Amended by R.A. 10630, year 2013)
TITLE VII
GENERAL PROVISIONS
CHAPTER I

EXEMPTING PROVISIONS

Page 118 of 121

 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 be 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.

Page 119 of 121

 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

Page 120 of 121

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 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.

Page 121 of 121