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A TENEO C ENTRAL B AR O PERATIONS 2007 Criminal Law SUMMER REVIEWER BOOK I

ATENEO CENTRAL BAR OPERATIONS 2007

Criminal Law SUMMER REVIEWER

B AR O PERATIONS 2007 Criminal Law SUMMER REVIEWER BOOK I CRIMINAL LAW – A branch

BOOK I

CRIMINAL LAW – A branch of municipal law which defines crimes, treats of their nature and provides for their punishment.

Characteristics of Criminal Law:

1. General – binding on all persons who reside

or sojourn in the Philippines Exceptions:

a. Treaty Stipulation

b. Laws of Preferential Application

c. Principles of Public International Law

Ex:

i. sovereigns and other chiefs of state ii. Ambassadors, ministers plenipotentiary, minister resident and charges d’affaires (BUT consuls, vice-consuls and other foreign commercial representatives CANNOT claim the privileges and immunities accorded to ambassadors and ministers.)

2. Territorial – penal laws of the Philippines are enforceable only within its territory Exceptions: (Art. 2 of RPC – binding even on crimes committed outside the Philippines)

a. offense committed while on a Philippine ship or airship

b. forging or counterfeiting any coin or currency note of the Philippines or obligations and the securities issued by the Government

c. introduction into the country of the

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above-mentioned obligations and securities

d. while being public officers and employees, an offense committed in the exercise of their functions

e. crimes against national security and the law of the nations defined in Title One of Book Two

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retroactive effect.

Exception: when the law is favorable to the accused Exceptions to the Exception:

a. The new law is expressly made inapplicable to pending actions or existing causes of action

b. Offender is a habitual criminal

Theories of Criminal Law:

1. Classical Theory – basis is man’s free will to

choose between good and evil, that is why more stress is placed upon the result of the felonious act than upon the criminal himself. The purpose of penalty is retribution. The RPC is generally governed by this theory.

2. Positivist Theory – basis is the sum of social and economic phenomena which conditions man to do wrong in spite of or contrary to his volition. This is exemplified in the provisions on impossible crimes and habitual delinquency.

3. Mixed Theory – combination of the classical and positivist theories wherein crimes that are economic and social in nature should be dealt in a positive manner. The law is thus more compassionate.

Construction of Penal Laws:

1. Liberally construed in favor of offender

Ex:

a.

the offender must clearly fall within the terms of the law

b.

an act is criminal only when made so

by the statute

2. In cases of conflict with official translation, original Spanish text is controlling,

3. No interpretation by analogy.

LIMITATIONS

ON

POWER

OF

CONGRESS

TO

ENACT PENAL LAWS:

1. ex post facto law

2. bill of attainder

3. law that violates the equal protection clause of the constitution

4. law which imposes cruel and unusual punishments nor excessive fines

3. Prospective – the law does not have any

fines 3. Prospective – the law does not have any —Advisers: Atty. Lorenzo Padilla, Justice Diosdado

—Advisers: Atty. Lorenzo Padilla, Justice Diosdado Peralta; Head: Kristine Quimpo; Understudies: Ivy Patdu, Krizna Gomez

Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 BOOK ONE

Criminal Law Summer Reviewer

Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 BOOK ONE GENERAL

ATENEO CENTRAL BAR OPERATIONS 2007

BOOK ONE GENERAL PROVISIONS

Omission – failure to perform a duty required by law

ELEMENTS:

1. there must be an act or omission

2. this must be punishable by the RPC

3. act or omission was done by means of dolo or culpa

ART.1: TIME WHEN ACT TAKES EFFECT

RPC took effect February 1, 1932.

ART. 2: APPLICATION OF ITS PROVISIONS

NULLUM CRIMEN, NULLA POENA SINE LEGE – There is no crime when there is no law punishing it.

Classification Of Felonies According To The Means By Which They Are Committed:

 

1.

Intentional

Felonies-

by

means

of

deceit

RULES:

(dolo)

1. Philippine vessel or airship – Philippine

law shall apply to offenses committed in vessels registered with the Philippine Bureau of Customs. It is the registration, not the citizenship of the owner which matters.

2. Foreign vessel

a. French Rule

General Rule: Crimes committed aboard

a foreign vessel within the territorial

waters of a country are NOT triable in the courts of such country. Exception: commission affects the peace and security of the territory, or the safety of the state is endangered.

b. English Rule

General Rule: Crimes committed aboard

a foreign vessel within the territorial

waters of a country are triable in the courts of such country. Exception: When the crime merely affects things within the vessel or it refers to the internal management thereof. *This is applicable in the Philippines.

Title One: FELONIES AND CIRCUMSTANCES

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WHICH AFFECT CRIMINAL LIABILITY

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Chapter One: FELONIES

Felonies – acts and omissions punishable by the Revised Penal Code

Crime – acts and omissions punishable by any law

Act – an overt or external act

Requisites:

a. freedom

b. intelligence

c. intent.

MISTAKE OF FACT – misapprehension of

fact on the part of the person who caused injury to another. He is not criminally liable. Requisites:

a. the act done would have been lawful had the facts been as the accused believed them to be

bintention is lawful

b. mistake must be without fault or

carelessness by the accused

2. Culpable Felonies- by means of fault Requisites:

(culpa)

a. freedom

b. intelligence

c. negligence (lack of foresight) and imprudence (lack of skill)

MALA IN SE v. MALA PROHIBITA

 

Mala in se

Mala Prohibita

moral trait of offender

considered

not considered

good faith as a defense

valid defense, unless the crime is the result of culpa

not a defense;

intent

not

 

necessary-

 

sufficient that the offender has the intent to perpetrate the act prohibited by the special law

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 degree of

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degree

of

taken into account

taken into account

accomplishme nt of the crime

only

when

consummated

mitigating and

taken into account in imposing penalty

GENERALLY not taken into account

aggravating

circumstance

   

degree

of

when there is more than one offender, it is taken into consideration

GENERALLY not taken into account

participation

laws violated

General

Rule:

General

Rule:

RPC

Special

Penal

Laws

Par. 2 Impossible Crime

Requisites:

1. Act would have been an offense against

persons or property.

2. There was criminal intent.

3. Accomplishment is inherently impossible; or inadequate or ineffectual means are

employed.

4. Act is not an actual violation of another provision of the Code or of special law.

Impossible crime occurs when there is:

INTENT v. MOTIVE

Intent

Motive

purpose

to

use

a

moving power which impels one to act

particular means to effect a result

element of crime except in crimes committed with culpa

not an element

essential

in

intentional

essential only when the identity of the felon is in doubt

felonies

1. inherent impossibility to commit the crime

2. inadequate means to consummate the crime

3. ineffectual means to consummate the crime

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

Note: Paragraph 2 does not apply to crimes punishable by special law, including profiteering, and illegal possession of firearms or drugs. There can be no executive clemency for these crimes.

ART. 4: CRIMINAL LIABILITY

Par.1 Criminal liability for a felony committed different from that intended to be committed

Requisites:

1. felony has been committed intentionally

2. injury or damage done to the other party is the direct, natural and logical consequence

of the felony

Hence, since he is still motivated by criminal intent, the offender is criminally liable in:

1. Error in personae – mistake in identity

2. Abberatio ictus – mistake in blow

3. Praetor intentionem – lack of intent to

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commit so grave a wrong

PROXIMATE CAUSE – the cause, which in the natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, without which the result would not have occurred

ART. 6: CONSUMMATED, FRUSTRATED, AND ATTEMPTED FELONIES

STAGES OF EXECUTION:

1. CONSUMMATED – when all the elements necessary for its execution and accomplishment

are present

2. FRUSTRATED

Elements:

a. offender performs all acts of execution

b. all these acts would produce the felony

as a consequence

c. BUT the felony is NOT produced

d. by reason of causes independent of the will of the perpetrator

3. ATTEMPTED

Elements:

a. offender commences the felony directly by overt acts

b. does not perform all acts which would produce the felony

c. his acts are not stopped by his own spontaneous desistance

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 Attempted  

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Attempted

 

Frustrated

 

Consummated

Overt

acts

of

All acts of execution are present

All the

acts

of

execution

are

execution

are

started

   

present

Not

all

acts of

Crime

sought

to

be

The

result

execution

are

committed

is

not

sought

is

present

 

achieved

achieved

Due to reasons other than the spontaneous desistance of the perpetrator

Due to intervening causes independent of the will of the perpetrator

 

ART. 7: WHEN LIGHT FELONIES ARE PUNISHABLE

General Rule: Punishable only when they have been consummated Exception: Even if not consummated, if committed against persons or property

Ex: slight physical injuries, theft, alteration of boundary marks, malicious mischief, and intriguing against honor.

Note: Only principals and accomplices are liable; accessories are NOT liable even if committed against persons or property.

Crimes, which do not admit of Frustrated and Attempted Stages:

ART. 8: CONSPIRACY AND PROPOSAL TO COMMIT FELONY

1. Offenses punishable by Special Penal Laws, unless the law provides otherwise

2. Formal crimes – consummated in one instance (Ex: slander, adultery, etc.)

3. Impossible Crimes

4. Crimes consummated by mere attempt (Ex: attempt to flee to an enemy country, treason, corruption of minors)

5. Felonies by omission

6. Crimes committed by mere agreement (Ex: betting in sports: “ending,” corruption of public officers)

Crimes which do not admit of Frustrated Stage:

1. Rape

2. Bribery

3. Corruption of Public Officers

4. Adultery

5. Physical Injury

2 stages in the development of a crime:

1. Internal acts

- e.g. mere ideas of the mind

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- not punishable

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2. External acts

not

punishable except when considered by law as independent crimes (e.g. Art. 304, Possession of picklocks and similar tools)

b. Acts of Execution - punishable under the RPC

a. Preparatory

acts

-

ordinarily

CONSPIRACY

Requisites:

1. Two or more persons come to an agreement

2. For the commission of a felony

3. And they decide to commit it

Concepts of Conspiracy:

1. As a crime in itself

Ex: conspiracy to commit rebellion, insurrection, treason, sedition, coup d’ etat

2. Merely as a means to commit a crime Requisites:

a.

b. participants acted in concert or simultaneously, which is indicative of a meeting of the minds towards a common criminal objective

a prior and express agreement

Note: Conspiracy to commit a felony is different from conspiracy as a manner of incurring criminal liability.

General Rule: Conspiracy to commit a felony is not punishable since it is merely a preparatory act. Exception: when the law specifically provides for

a penalty Ex: rebellion, insurrection, sedition, coup d’ etat

General Rule: The act of one is the act of all. Exception: Unless one or some of the conspirators committed some other crime which

is not part of the intended crime.

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Exception to the exception: When the act constitutes an indivisible offense.

CONSIST OF:

1. Active participation in the actual commission of the crime itself, or

2. Moral assistance to his co-conspirators by being present at the time of the commission of the crime, or

3. Exerting a moral ascendance over the

other co-conspirators by moving them to execute or implement the criminal plan People v. Abut, et al. (GR No. 137601, April 24,

2003)

OVERT

ACTS

IN

CONSPIRACY

MUST

1 month and 1 day to 6 years

3. Light felonies - arresto menor (1 day to 30 days)

ART. 10: OFFENSES NOT SUBJECT TO THE PROVISIONS OF THIS CODE

General Rule: RPC provisions are supplementary to special laws. Exceptions:

1. when special law provides otherwise

2. when provision of RPC are impossible of application, either by express provision or by necessary implication

PROPOSAL TO COMMIT A FELONY Requisites:

1. A person has decided to commit a felony

2. And proposes its execution to some other

person or persons

 
 

Conspiracy

Proposal

 

Elements

Agreement

to

person decides to commit a crime AND proposes the same to another

commit

AND

commission

Crimes

Conspiracy

to

Proposal

to

commit:

sedition,

commit:

treason,

treason, coup d’ etat

rebellion,

rebellion,

coup

d’

etat

 

*no

proposal

to

commit sedition

 

Special Laws

RPC

Terms

imprisonment

prision

correccional,

prision mayor,

arresto mayor,

etc.

Attempted or

General Rule: Not punishable Exception: Unless otherwise stated

Punishable

Frustrated

Stages

Plea of guilty as mitigating circumstance

No

Yes

Minimum,

Not applicable

Yes

medium and

maximum

periods

Penalty for

General Rule:

Yes

accessory or

None

accomplice

Exception: Unless

otherwise stated

ART. 9: GRAVE FELONIES, LESS GRAVE FELONIES AND LIGHT FELONIES

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Importance of Classification

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1. To determine whether the felonies can be complexed or not.

2. To determine the prescription of the crime and of the penalty.

Penalties (imprisonment):

1. Grave felonies – afflictive penalties: 6 yrs. and 1 day to reclusion perpetua (life)

2. Less grave felonies – correctional penalties:

Provisions of RPC applicable to special laws:

Art. 16 Participation of Accomplices

Art. 22 Retroactivity of Penal laws if favorable to the accused

Art. 45 Confiscation of instruments used in the crime

Note: When the special law adopts the penalties imposed in the RPC i.e. penalties as reclusion perpetua, prision correccional, etc. the provisions of the RPC on imposition of penalties based on stages of execution, degree of participation and attendance of mitigating and aggravating circumstance may be applied by necessary implication.

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 Chapter Two

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 Chapter Two JUSTIFYING

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Chapter Two JUSTIFYING CIRCUMSTANCES AND CIRCUMSTANCES, WHICH EXEMPT FROM CRIMINAL LIABILITY

nor material commensurability between the means of attack and defense by the one defending himself and that of the aggressor is not required

REASON: the person assaulted does not have sufficient opportunity or time to think and calculate.

Rights included in self-defense:

ART. 11. JUSTIFYING CIRCUMSTANCES

JUSTIFYING CIRCUMSTANCES – where the act of a person is in accordance with law such that said person is deemed not to have violated the law.

1. defense of person

2. defense of rights protected by law

3. defense of property (only if there is also an actual and imminent danger on the person of the one defending)

4. defense of chastity

General Rule: No criminal and civil liability incurred. Exception: There is civil liability with respect to par. 4 where the liability is borne by persons benefited by the act.

Kinds of Self-Defense:

1. self-defense of chastity – there must be an attempt to rape the victim

2. defense of property – must be coupled with an attack on the person of the owner, or on one entrusted with the care of such property.

Par. 1 Self-defense

Elements:

1. Unlawful Aggression indispensable requirement There must be actual physical assault or aggression or an immediate and imminent threat, which must be offensive and positively strong. The defense must have been made during the existence of aggression, otherwise, it is no longer justifying. While generally an agreement to fight does not constitute unlawful aggression, violation of the terms of the agreement to fight is considered an exception.

2. Reasonable necessity of the means employed to prevent or repel it

Test of reasonableness depends on:

(1) weapon used by aggressor

(2) physical condition, character, size and other circumstances of

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aggressor

(3) physical condition, character, size

and circumstances of defending himself (4) place and occasion of assault

person

3. Lack of sufficient provocation on the part of the person defending himself

NOTE: Perfect equality between the weapons used,

People v. Narvaez, (GR No. L-33466-67, April 20, 1983) Attack on property alone was deemed sufficient to comply with element of unlawful aggression

3. self-defense in libel – justified when the libel is aimed at a person’s good name.

“Stand ground when in the right” - the law does not require a person to retreat when his assailant is rapidly advancing upon him with a deadly weapon.

NOTE: Under Republic Act 9262 (Anti-Violence Against Women and Their Children Act of 2004), victim-survivors who are found by the Courts to be suffering from Battered Woman Syndrome (BWS) do not incur any criminal or civil liability despite absence of the necessary elements for the justifying circumstance of self-defense in the RPC. BWS is a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.

Par. 2 Defense of Relative

Elements:

1.

unlawful

aggression

(indispensable

requirement)

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 2. reasonable

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2. reasonable necessity of the means employed to prevent or repel it

3. In case the provocation was given by the person attacked, the one making the defense had no part in such provocation.

NOTE: The accused must prove that he was duly appointed to the position claimed he was discharging at the time of the commission of the offense. It must also be shown that the offense committed was the necessary consequence of such fulfillment of duty, or lawful exercise of a right or office.

Relative entitled to the defense:

1. spouse

2. ascendants

3. descendants

4. legitimate, natural or adopted brothers and sisters, or relatives by affinity in the same degrees

5. relatives by consanguinity within the 4 th civil degree

Par. 6 Obedience to a Superior Order

Elements:

1. an order has been issued

2. order has a lawful purpose (not patently illegal)

3. means used by subordinate to carry out said order is lawful

NOTE: The relative defended may be the original aggressor. All that is required to justify the act of the relative defending is that he takes no part in such provocation.

Par. 3 Defense of Stranger

Elements:

1. unlawful aggression (indispensable requirement)

2. reasonable necessity of the means employed to prevent or repel it

3. person defending be not induced by revenge, resentment or other evil motive

Par. 4 State of Necessity (Avoidance of Greater Evil or Injury)

Elements:

1. evil sought to be avoided actually exists

2. injury feared be greater than that done to avoid it

3. no other practical and less harmful means of

preventing it

NOTE: The necessity must not be due to the negligence or violation of any law by the actor.

Par. 5 Fulfillment of Duty or Lawful Exercise of

a Right or Office

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Elements:

1. accused acted in the performance of duty or in the lawful exercise of a right or office

2. the injury caused or offense committed be the necessary consequence of the due performance of the duty, or the lawful exercise of such right or office.

NOTE: The superior officer giving the order cannot invoke this justifying circumstance. Good faith is material, as the subordinate is not liable for carrying out an illegal order if he is not aware of its illegality and he is not negligent.

General Rule: Subordinate cannot invoke this circumstance when order is patently illegal. Exception: When there is compulsion of an

of

irresistible force, uncontrollable fear.

or

under

impulse

ART. 12: CIRCUMSTANCES, WHICH EXEMPT FROM CRIMINAL LIABILITY

EXEMPTING CIRCUMSTANCES – grounds for exemption from punishment because there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent.

Basis: The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused.

Burden of proof: Any of the circumstances is a matter of defense and must be proved by the defendant to the satisfaction of the court.

 

Justifying

Exempting

Who/what

Act

Actor

is

affected?

Nature of

act is considered legal

act is wrongful but actor not liable

act

Existence

None

Yes, but since

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 of a

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of a crime

 

voluntariness is absent the actor is not liable

Liability

No criminal and civil liability BUT there is civil liability as to Art.11(4) (state of necessity)

No criminal liability but there is civil liability EXCEPT as to Art. 12(4) (injury by mere accident) and (7) (lawful cause)

the consequences of the unlawful act, which is shown by the:

1. manner the crime was committed

2. conduct of the offender after its commission

NOTE: Under R.A. 9344 a minor over 15 but but below 18 who acted without discernment is exempt from criminal liability

Par. 1 Imbecility or Insanity

Par. 4 Accident without fault or intention of causing it

IMBECILE – one while advanced in age has a mental development comparable to that of children between 2 and 7 years old. He is exempt in all cases from criminal liability.

INSANE – one who acts with complete deprivation of intelligence/reason or without the least discernment or with total deprivation of freedom of will. Mere abnormality of the mental faculties will not exclude imputability.

General Rule: Exempt from criminal liability Exception: The act was done during a lucid interval.

NOTE: Defense must prove that the accused was insane at the time of the commission of the crime because the presumption is always in favor of sanity.

Par. 2 Under Nine Years of Age

Requisite: Offender is under 9 years of age at the time of the commission of the crime. There is absolute criminal irresponsibility in the case of a minor under 9 years of age.

NOTE: Under R.A. 9344 or the Juvenile Justice And Welfare Act a minor 15 years and below is exempt from criminal liability

Par. 3 Person Over 9 and Under 15 Acting

Without Discernment

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NOTE: Such minor must have acted without discernment to be exempt. If with discernment, he is criminally liable.

Presumption:

without discernment.

The

minor

committed

the

crime

DISCERNMENT – mental capacity to fully appreciate

Elements:

1. A person is performing a lawful act

2. with due care

3. He causes injury to another by mere accident

4. Without fault or intention of causing it.

Par. 5 Irresistible Force

IRRESISTIBLE FORCE – offender uses violence or physical force to compel another person to commit a crime.

Elements:

1. The compulsion is by means of physical force.

2. The physical force must be irresistible.

3. The physical force must come from a third person.

NOTE: Force must be irresistible so as to reduce the individual to a mere instrument.

Par. 6 Uncontrollable Fear

UNCONTROLLABLE FEAR – offender employs intimidation or threat in compelling another to commit a crime. DURESS – use of violence or physical force

Elements:

1. The threat which causes the fear is of an evil

greater than, or at least equal to, that which he is required to commit.

2. It promises an evil of such gravity and imminence that an ordinary man would have succumbed to it.

NOTE: Duress to be a valid defense should be based on real, imminent or reasonable fear for one’s life or limb. It should not be inspired by speculative, fanciful or remote fear. A threat of future injury is not enough.

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 NOT a bar

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NOT

a

bar

to

Accused will be acquitted

accused’s prosecution

and conviction

 

NOT

an

absolutory

Absolutory cause

cause

ACTUS ME INVITO FACTUS NON EST MEUS ACTUS – Any act done by me against my will is not my act.

PAR 7. Insuperable Cause

INSUPERABLE CAUSE – some motive, which has lawfully, morally or physically prevented a person to do what the law commands

Elements:

1. An act is required by law to be done.

2. A person fails to perform such act.

3. His failure to perform such act was due to some lawful or insuperable cause.

Ex:

1. A priest can’t be compelled to reveal what was confessed to him.

2. No available transportation – officer not liable for arbitrary detention

3. Mother who was overcome by severe dizziness and extreme debility, leaving child to die – not liable for infanticide (People v. Bandian, 63 Phil 530)

ABSOLUTORY CAUSES – where the act committed is a crime but for some reason of public policy and sentiment, there is no penalty imposed. Exempting and justifying circumstances are absolutory causes. Examples of such other circumstances are:

1. spontaneous desistance (Art. 6)

2. accessories exempt from criminal liability (Art. 20)

3. Death or physical injuries inflicted under exceptional circumstances (Art. 247)

4. persons exempt from criminal liability from theft, swindling, malicious mischief (Art 332)

5. instigation

NOTE: Entrapment is NOT an absolutory cause. A buy-bust operation conducted in connection with illegal drug-related offenses is a form of entrapment.

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Entrapment

 

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Instigation

The ways and means

Instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal

are resorted to for the

purpose

of

trapping

and capturing

the

lawbreaker in

the

 

execution

of

his

criminal plan.

 

Chapter Three CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY

 

Privileged Mitigating

Ordinary Mitigating

Offset by any aggravating circumstance

Cannot be offset

Can be offset by a generic aggravating circumstance

Effect on

 

Effect of imposing the penalty by 1 or 2 degrees lower than that provided by law

If not offset, has the effect of imposing the minimum period of the penalty

penalty

Kinds

Minority, Incomplete Self-defense, two or more mitigating circumstance without any aggravating circumstance (has the effect of lowering the penalty by one degree). Art. 64, 68 and 69

Those circumstances enumerated in paragraph 1 to 10 of Article 13

(Sources)

   

Age

Criminal Responsibility/ Effect

 

15years

Absolute

irresponsibility,

exempting

 

circumstance

 

*

as amended by RA 9344

 
 

15

<

and <

Conditional responsibility

 

18

Without discernment – not criminally liable With discernment – criminally liable

 

*

as amended by RA 9344

 
 

Minor

Sentence is suspended

 

delinquent

 

18 and 70

Full responsibility

 

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> 70

Mitigated responsibility, no imposition of

death

penalty,

execution

of

death

sentence may be suspended and commuted

ART. 13: MITIGATING CIRCUMSTANCES

This provision addresses the intention of the offender at the particular moment when the offender executes or commits the criminal act, not to his intention during the planning stage

NOTE: In crimes against persons – if victim does not die, the absence of the intent to kill reduces the felony to mere physical injuries. It is not considered as mitigating. It is mitigating only when the victim dies.

MITIGATING CIRCUMSTANCES – those which if present in the commission of the crime reduces the penalty of the crime but does not erase criminal liability nor change the nature of the crime

NOTE: A mitigating circumstance arising from a single fact absorbs all the other mitigating circumstances arising from that same fact.

Par. 1 Incomplete Justifying or Exempting Circumstances

NOTE: This applies when not all the requisites are present. If two requisites are present, it is considered a privileged mitigating circumstance. However, in reference to Art.11(4) if any of the last two requisites is absent, there is only an ordinary mitigating circumstance. Remember though, that in self- defense, defense of relative or stranger, unlawful aggression must always be present as it is an indispensable requirement.

Par. 2 Under 18 or Over 70 Years Old

NOTE: Age of accused is determined by his age at the date of commission of crime, not date of trial.

Par. 3 No Intention to Commit so Grave a Wrong

NOTE: Can be used only when the proven facts

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between the means employed to execute the criminal act and its consequences.

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Factors that can be considered are:

1. weapon used

2. injury inflicted

3. part of the body injured

4. mindset of offender at the time of commission of crime

NOTE: It is not applicable to felonies by negligence because in felonies through negligence, the offender acts without intent. The intent in intentional felonies is replaced by negligence or imprudence. There is no intent on the part of the offender, which may be considered as diminished

Par. 4 Provocation or Threat

Provocation – any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.

 

Provocation

Vindication

Made directly only to the person committing the felony

Grave offense may be also against the offender’s relatives mentioned by law

Cause

that

brought

Offended party must have done a grave offense to the offender or his relatives

about

the provocation

need

not be

a grave

offense

 

Necessary

 

that

May be proximate. Time interval allowed

provocation

or

threat

immediately

preceded

 

the act. No time interval

Requisites:

1. provocation must be sufficient

2. it must originate from the offended party

3. must be immediate to the commission of the crime by the person who is provoked

NOTE: Threat should not be offensive and positively strong. Otherwise, it would be an unlawful aggression, which may give rise to self-defense and thus no longer a mitigating circumstance.

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Par. 5 Vindication of Grave Offense

Requisites:

1. a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters or relatives by affinity within the same degrees

2. the felony is committed in immediate vindication of such grave offense

NOTE: “Immediate” allows for a lapse of time, as long as the offender is still suffering from the mental agony brought about by the offense to him. (proximate time, not just immediately after)

 

3rd person

Must come from lawful sentiments

Unlawful

PASSION & OBFUSCATION

 

PROVOCATION

Produced by an impulse which may be caused by provocation

Comes from injured party

Offense which engenders perturbation of mind need not be immediate. It is only required that the influence thereof lasts until the crime is committed

Immediately precede the commission of the crime

Effect is loss of reason and self- control on the part of the offender

Same

Par. 6 Passion or Obfuscation

Requisites:

1. offender acted upon an impulse

2. the impulse must be so powerful that it naturally produced passion or obfuscation in

him

NOTE: Act must have been committed not in the spirit of lawlessness or revenge; act must come from lawful sentiments.

Act, Which Gave Rise To Passion And Obfuscation:

1. That there be an act, both unlawful and unjust

2. The act be sufficient to produce a condition of mind

3. That the act was proximate to the criminal act, not admitting of time during which the perpetrator might recover his normal equanimity

4. The victim must be the one who caused the passion or obfuscation

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treachery since this means that the offender had time to ponder his course of action.

PASSION & OBFUSCATION

IRRESISTIBLE

FORCE

Mitigating

Exempting

No physical force needed

Requires physical

force

From the offender himself

Must come from a

Par. 7 Surrender and Confession of Guilt

 

VOLUNTARY

VOLUNTARY PLEA OF GUILT

SURRENDER

Requisites:

1. offender not

1. offender spontaneously

actually arrested

2. offender

confessed his guilt

surrendered to

person in

2. confession was made in open

authority

3. surrender was

court, that is, before the competent court that is to try the case

3. confession of guilt was made prior to the presentation of the evidence for the prosecution

voluntary

WHEN SURRENDER VOLUNTARY - must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because:

1. he acknowledges his guilt; or

2. he wishes to save them the trouble and expense necessarily incurred in his search and capture.

NOTE: If both are present, considered as two independent mitigating circumstances. Further mitigates penalty.

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NOTES:

plea made after arraignment and after trial has begun does not entitle accused to the mitigating circumstance If accused pleaded not guilty, even if during arraignment, he is entitled to mitigating circumstance as long as he withdraws his plea of not guilty to the charge before the fiscal could present his evidence. Plea to a lesser charge is not a Mitigating Circumstance because to be such, the plea of guilt must be to the offense charged. Plea to the offense charged in the amended info, lesser than that charged in the original info, is Mitigating Circumstance.

Par. 8 Physical Defect of Offender

extreme poverty, similar to incomplete justification based on state of necessity

extreme poverty, similar to incomplete justification based on state of necessity

CHAPTER FOUR

CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL LIABILITY

AGGRAVATING CIRCUMSTANCES – Those which, if attendant in the commission of the crime, serve to have the penalty imposed in its maximum period provided by law for the offense or those that change the nature of the crime.

The offender is deaf and dumb, blind or otherwise suffering from some physical defect, restricting his means of action, defense or communication with others.

NOTE: The physical defect must relate to the offense committed.

Par. 9 Illness of the Offender

offender

manifested in the commission of the felony as shown by:

BASIS:

The

greater

perversity

of

the

1. the motivating power itself,

2. the place of the commission,

3. the means and ways employed

4. the time, or

5. the personal circumstances of the offender, or the offended party.

Requisites:

1. The illness of the offender must diminish the

exercise of his will-power.

2. Such illness should not deprive the offender of consciousness of his acts.

Par. 10 Similar and Analogous Circumstances

Examples

Not examples

defendant who is 60 years old with failing eyesight is similar to a case of one over 70 yrs old

killing

the

wrong

person

outraged feeling of owner of

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not resisting arrest is

animal taken for ransom is analogous to vindication of grave

offense

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not the same as voluntary surrender

impulse of jealous feeling, similar to passion and obfuscation

running amuck is not mitigating

voluntary restitution of property, similar to voluntary surrender

 

KINDS OF AGGRAVATING CIRCUMSTANCES:

1. Generic - those which apply to all crimes

2. Specific - those which apply only to specific crimes,

3. Qualifying - those that change the nature of the crime

4. Inherent - which of necessity accompany the commission of the crime, therefore not considered in increasing the penalty to be imposed

5. Special - those which arise under special conditions to increase the penalty of the offense and cannot be offset by mitigating circumstances

GENERIC

QUALIFYING

AGGRAVATING

AGGRAVATING

CIRCUMSTANCE

CIRCUMSTANCE

EFFECT : When not set off by any mitigating circumstance, Increases the penalty which should be imposed upon the accused to the

EFFECT: Gives the crime its proper and exclusive name and places the author of the crime in such a situation as to deserve no other

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maximum period but without exceeding the limit prescribed by law

penalty than that specially prescribed by law for said crimes (People v. Bayot, 64Phil269,

273)

If not alleged in the information, a qualifying aggravating circumstance will be considered generic

To be considered as such, MUST be alleged in the information

May be offset by a mitigating circumstance.

Cannot be offset by a mitigating circumstance

act of all, regardless of lack of knowledge of the facts constituting the circumstance. (Art. 62, par.

4)

5. Aggravating circumstances, regardless of its kind, should be specifically alleged in the information AND proved as fully as the crime itself in order to increase the penalty. (Sec. 9, Rule 110, 2000 Rules of Criminal Procedure)

6. When there is more than one qualifying aggravating circumstance present, one of them will be appreciated as qualifying aggravating while the others will be considered as generic aggravating.

RULES ON AGGRAVATING CIRCUMSTANCES:

1. Aggravating circumstances shall NOT be

appreciated if:

a) They constitute a crime specially punishable by law, or

b) It is included by the law in defining a crime

with a penalty prescribed, and therefore shall not be taken into account for the purpose of increasing the penalty. Ex: “That the crime be committed by means of …fire,…explosion” (Art. 14, par. 12) is in itself a crime of arson (Art. 321) or a crime involving destruction (Art. 324). It is not to be considered to increase the penalty for the crime of arson or for the crime involving destruction.

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(Art.62, par.2)

3. Aggravating circumstances which arise:

a) From the moral attributes of the offender;

b) From his private relations with the offended party; or

c) From any personal cause,

shall only serve to aggravate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. (Art.

62, par. 3)

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ART. 14: AGGRAVATING CIRCUMSTANCES

Par. 1. That advantage be taken by the offender of his public position

Requisites:

1. Offender is public officer

2. Public officer must use the influence, prestige, or ascendancy which his office

gives him as means to realize criminal purpose

It is not considered as an aggravating circumstance where taking advantage of official position is made by law an integral element of the crime or inherent in the offense, Ex: malversation (Art. 217), falsification of a document committed by public officers (Art.

171).

When the public officer did not take advantage of the influence of his position, this aggravating circumstance is not present NOTE : Taking advantage of a public position is also inherent in the case of accessories under Art. 19, par. 3 (harboring, concealing, or assisting in the escape of the principal of the crime), and in crimes committed by public officers (Arts. 204-

245).

4. The circumstances which consist :

a) In the material execution of the act, or

b) In the means employed to accomplish it,

shall serve to aggravate the liability of only those persons who had knowledge of them at the time of the execution of the act or their cooperation therein. Except when there is proof of conspiracy in which case the act of one is deemed to be the

Par. 2. That the crime be committed in contempt of or with insult to public authorities

Requisites:

1. That the public authority is engaged in the

exercise of his functions.

2. That he who is thus engaged in the exercise of said functions is not the person against whom the crime is committed.

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3. The offender knows him to be a public authority.

4. His presence has not prevented the offender from committing the criminal act.

reference to others (There must be a difference in the social condition of the offender and the offended party).

public authority, or

person who is directly vested with jurisdiction and has the power to govern and execute the laws Ex:

PERSON

IN

AUTHORITY

AGE – may refer to old age or the tender age of the victim.

SEX– refers to the female sex, not to the male sex.

1. Governor

2. Mayor

3. Barangay captain/ chairman

4. Councilors

5. Government agents

6. Chief of Police

NOTE: A teacher or professor of a public or recognized private school is not a “public authority within the contemplation of this paragraph. While he is a person in authority under Art. 152, that status is only for purposes of Art. 148 (direct assault) and Art. 152 (resistance and disobedience).

The crime should not be committed against the public authority (otherwise it will constitute direct assault under Art.148)

This is NOT applicable when committed in the presence of a mere agent.

AGENT – subordinate public officer charged w/ the maintenance of public order and protection and security of life and property Ex: barrio vice lieutenant, barrio councilman

The AC of disregard of rank, age, or sex is not applicable in the following cases:

1. When the offender acted with passion and obfuscation.

2. When there exists a relationship between the offended party and the offender.

3. When the condition of being a woman is indispensable in the commission of the crime. (Ex: in parricide, abduction, seduction and rape)

People vs. Lapaz, March 31, 1989 Disregard of sex and age are not absorbed in
People vs. Lapaz, March 31, 1989
Disregard of sex and age are not absorbed in
treachery because treachery refers to the manner of
the commission of the crime, while disregard of sex
and age pertains to the relationship of the victim.

DWELLING – must be a building or structure exclusively used for rest and comfort (combination of house and store not included), may be temporary as in the case of guests in a house or bedspacers. It includes dependencies, the foot of the staircase and the enclosure under the house

Par. 3. That the act be committed:

(1) with insult or in disregard of the respect due the offended party on account of his (a)rank, (b) age, or (c) sex or

(2) that it be committed in the dwelling of the offended party, if the latter has not given provocation

Rules regarding par 3(1):

1. These circumstances shall only be

considered as one aggravating circumstance.

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2. Rank, age, sex may be taken into account only in crimes against persons or honor, they

cannot be invoked in crimes against property.

3. It must be shown that in the commission of the crime the offender deliberately intended to offend or insult the sex, age and rank of the offended party.

RANK – The designation or title of distinction used to fix the relative position of the offended party in

NOTES:

The aggravating circumstance of dwelling requires that the crime be wholly or partly committed therein or in any integral part thereof. Dwelling does not mean the permanent residence or domicile of the offended party or that he must be the owner thereof. He must, however, be actually living or dwelling therein even for a temporary duration or purpose. It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense; it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault from without.

What aggravates the commission of the crime in one’s dwelling:

1. The abuse of confidence which the offended party reposed in the offender by opening the door to him; or

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2. The violation of the sanctity of the home by trespassing therein with violence or against the will of the owner.

5. The victim is not a dweller of the house.

Par. 4. That the act be committed with:

Meaning of provocation in the aggravating circumstance of dwelling:

The provocation must be:

1. Given by the owner of the dwelling,

2. Sufficient, and

3. Immediate to the commission of the crime.

NOTE:

If

all

these

conditions

are

present,

the

offended party is deemed to have given

the

provocation, and the fact that the crime is committed in the dwelling of the offended party is NOT an aggravating circumstance. REASON: When it is the offended party who has provoked the incident, he loses his right to the respect and consideration due him in his own house.

Dwelling is not aggravating in the following cases:

1. When both the offender and the offended party are occupants of the same house, and this is true even if offender is a servant in the house. exception: In case of adultery in the conjugal dwelling, the same is aggravating. However, if the paramour also dwells in the conjugal dwelling, the applicable aggravating circumstance is abuse of confidence.

2. When robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent.

(1) abuse of confidence or (2) obvious ungratefulness

There are two aggravating circumstances present under par.4 which must be independently appreciated if present in the same case While one may be related to the other in the factual situation in the case, they cannot be lumped together. Abuse of confidence requires a special confidential relationship between the offender and the victim, while this is not required for there to be obvious ungratefulness

Requisites Of Abuse Of Confidence:

1. That the offended party had trusted the offender.

2. That the offender abused such trust by committing a crime against the offended party.

3. That the abuse of confidence facilitated the commission of the crime.

NOTE: Abuse of confidence is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315), and qualified seduction (Art. 337).

Requisites of obvious ungratefulness:

1. That the offended party had trusted the offender;

2. That the offender abused such trust by committing a crime against the offended party.

3. That the act be committed with obvious ungratefulness.

However, dwelling is aggravating in robbery with violence against or intimidation of persons because this class of robbery can be committed without the necessity of trespassing the sanctity of the offended party’s house.

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3. In

the crime of trespass to dwelling, it

inherent or included by law in defining the crime.

is

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NOTE: The ungratefulness contemplated by par. 4 must be such clear and manifest ingratitude on the part of the accused.

Par. 5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.

4. When the owner of the dwelling gave sufficient and immediate provocation. There must exist a close relation between the provocation made by the victim and the commission of the crime by the accused.

Actual performance of duties is not necessary when crime is committed in the palace or in the presence of the Chief Executive

Requisites Regarding Public Authorities:

1. crime occurred in the public office

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2. public authorities are actually performing their public duties

NIGHTTIME (obscuridad) – that period of darkness beginning at the end of dusk and ending at dawn.

PAR. 5. Where public authorities are engaged in the discharge of their duties

PAR. 2. Contempt or insult to public authorities

FOR BOTH, Public authorities are in the performance of their duties

Place where public duty is performed

In their office.

Outside of their office.

The offended party

May or

public authority

may not

be

the

Public authority should not be the offended party

Commission of the crime must begin and be

accomplished in the nighttime. When the place of the crime is illuminated by light, nighttime is not aggravating. It is not considered aggravating when the crime began at daytime. Nighttime is not especially sought for when the notion to commit the crime was conceived of shortly before commission or when crime was committed at night upon a

casual encounter However, nighttime need not be specifically sought for when (1) it facilitated the

 

commission

of

the

offense,

or

(2)

the

Requisites (Place Dedicated To Religious

1. The crime occurred in a place dedicated to

offender took

advantage

of

the

same to

Worship):

the worship of God regardless of religion

commit the crime A bare statement that crime was committed at night is insufficient. The information must

2. The offender must have decided to commit the crime when he entered the place of worship

allege that nighttime was sought for or taken advantage of, or that it facilitated the crime

Except for the third which requires that official functions are being performed at the time of the commission of the crime, the other places mentioned are aggravating per se even if no official duties or acts of religious worship are being conducted there. Cemeteries, however respectable they may be, are not considered as place dedicated to the worship of God.

Par. 6. That the crime be committed (1) in the nighttime, or (2) in an uninhabited place, or (3) by a band, whenever such circumstance may facilitate the commission of the offense

NOTE: When present in the same case and their element are distinctly palpable and can subsist independently, they shall be considered separately.

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uninhabited

When

nighttime,

place

or

band

aggravating:

1. When it facilitated the commission of the crime; or

2. When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or

3. When the offender took advantage thereof for the purpose of impunity

GENERAL RULE: Nighttime is absorbed in treachery.

EXCEPTION: Where both the treacherous mode

of attack and nocturnity were deliberately decided

upon in the same case, they can be considered

separately if such circumstances have different factual bases. Thus:

In People vs. Berdida, et. al. (June 30, 1966), nighttime was considered since it was purposely sought, and treachery was further appreciated because the victim’s hands and arms were tied together before he was beaten up by the accused. In People vs. Ong, et. al. (Jan. 30, 1975), there was treachery as the victim was stabbed while lying face up and defenseless, and nighttime was considered upon proof that it facilitated the commission of the offense and was taken advantage of by the accused.

UNINHABITED PLACE (despoblado) – one where there are no houses at all, a place at a considerable distance from town, where the houses are scattered at a great distance from each other

Solitude must be sought to better attain the criminal purpose

What should be considered here is whether in the place of the commission of the offense, there was

a reasonable possibility of the victim receiving some help.

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1. When both the attacking party and the party attacked were equally armed. 2. When

1. When both the attacking party and the party attacked were equally armed.

2. When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose.

3. When the others were only “casually present” and the offender did not avail himself of any of their aid or when he did not knowingly count upon their assistance in the commission of the crime

Par. 6 “By a band”

Par. 8. “With the aid of armed men”

As to their number

As to their number

Requires more than three armed malefactors (i.e., at least four)

At least two

As to their action

As to their action

Requires that more than three armed malefactors shall have acted together in the commission of an offense.

This circumstance is present even if one of the offenders merely relied on their aid, for actual aid is not necessary.

If there are four armed men, aid of armed men is absorbed in employment of a band. If there are three armed men or less, aid of armed men may be the aggravating circumstance. “Aid of armed men” includes “armed women.”

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BAND (en cuadrilla) – whenever there are more than 3 armed malefactors that shall have acted together in the commission of an offense

NOTE: There must be four or more armed men

If one of the four-armed malefactors is a principal by inducement, they do not form a band because it is undoubtedly connoted that he had no direct participation. “By a band” is aggravating in crimes against property or against persons or in the crime of illegal detention or treason but does not apply to crimes against chastity “By a band” is inherent in brigandage This aggravating circumstance is absorbed in the circumstance of abuse of superior strength

Par. 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. Requisites:

1. The crime was committed when there was a calamity or misfortune

2. The offender took advantage of the state of confusion or chaotic condition from such misfortune

If the offended was PROVOKED by the offended party during the calamity/misfortune, this aggravating circumstance may not be taken into consideration.

Par. 8.That the crime be committed with the aid of (1) armed men or (2) persons who insure or afford impunity

Requisites:

1. That armed men or persons took part in the commission of the crime, directly or indirectly.

2. That the accused availed himself of their aid or relied upon them when the crime was committed.

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NOTE: This aggravating circumstance requires that the armed men are accomplices who take part in a minor capacity directly or indirectly, and not when they were merely present at the crime scene. Neither should they constitute a band, for then the proper aggravating circumstance would be cuadrilla.

When This Aggravating Circumstance Shall Not Be Considered:

Par. 9. That the accused is a recidivist

RECIDIVIST – one who at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC.

Requisites:

1. That the offender is on trial for an offense;

2. That he was previously convicted by final judgment of another crime;

3. That both the first and the second offenses are embraced in the same title of the Code;

4. That the offender is convicted of the new offense.

MEANING OF “at the time

of his

trial for one

crime.” It is employed in its general sense, including the rendering of the judgment. It is meant to include everything that is done in the course of the trial, from

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arraignment until after sentence is announced by the judge in open court.

Requisites Of Reiteracion Or Habituality:

What is controlling is the TIME OF THE TRIAL, not the time of the commission of the offense.

1. That the accused is on trial for an offense;

2. That he previously served sentence for

another offense to which the law attaches an

GENERAL RULE: To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copy of the sentences rendered against the accused. Exception: If the accused does not object and when he admits in his confession and on the witness stand. Recidivism must be taken into account no matter how many years have intervened between the first and second felonies.

Amnesty extinguishes the penalty and its effects. However, pardon does not obliterate the fact that the accused was a recidivist. Thus, even if the accused was granted a pardon for the first offense but he commits another felony embraced in the same title of the Code, the first conviction is still counted to make him a recidivist

Being an ordinary aggravating circumstance, recidivism affects only the periods of a penalty, except in prostitution and vagrancy (Art. 202) and gambling (PD 1602) wherein recidivism increases the penalties by degrees. No other generic aggravating circumstance produces this effect

In recidivism it is sufficient that the succeeding offense be committed after the commission of the preceding offense provided that at the time of his trial for the second offense, the accused had already been convicted of the first offense.

If both offenses were committed on the same date, they shall be considered as only one, hence, they cannot be separately counted in

order to constitute recidivism. Also, judgments of convicted handed down on the same day shall be considered as only one conviction. REASON: Because the Code requires that to be

considered as separate convictions, at the time of

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Par. 10. That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

a) Equal or

b) Greater penalty, or

c) For two or more crimes to which it

attaches a lighter penalty than that for the new offense; and

3. That he is convicted of the new offense

HABITUALITY

RECIDIVISM

As to the first offense

As to the first offense

It is necessary that the offender shall have served out his sentence for the first offense

It is enough that a final judgment has been rendered in the first offense.

As to the kind of offenses involved

As to the kind of offenses involved

The previous and subsequent offenses must not be em braced in the same title of the Code.

Requires that the offenses be included in the same title of the Code.

THE FOUR FORMS OF REPETITION ARE:

1. Recidivism (par. 9, Art. 14) – Where a person,

on separate occasions, is convicted of two offenses embraced in the same title in the RPC. This is a generic aggravating circumstance.

2. Reiteracion or Habituality (par. 10, Art. 14)

Where the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two crimes to which it attaches a lighter penalty. This is a generic aggravating circumstance.

3. Multi-recidivism or Habitual delinquency (Art. 62, par, 5) – Where a person within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification, is found guilty of the said crimes a third time or oftener. This is an extraordinary aggravating circumstance.

4. Quasi-recidivism (Art. 160) – Where a person

commits felony before beginning to serve or while serving sentence on a previous conviction for a felony. This is a special aggravating circumstance.

Since reiteracion provides that the accused has duly served the sentence for his previous conviction/s, or is legally considered to have

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 done so, quasi-recidivism cannot at the
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done so, quasi-recidivism cannot at the same
time constitute reiteracion, hence this
aggravating circumstance cannot apply to a
quasi-recidivist.
When another aggravating circumstance already
qualifies the crime, any of these aggravating
circumstances shall be considered as generic
aggravating circumstance only
If the same set of facts constitutes recidivism and
reiteracion, the liability of the accused should be
aggravated by recidivism which can easily be
proven.
When used as a means to kill another person,
the crime is qualified to murder.
Par. 11. That the crime be committed in
consideration of price, reward or promise.
PAR. 12 “by means
of inundation, fire,
etc.”
PAR. 7 “on the
occasion of a
conflagration,
shipwreck, etc.
Requisites:
1. There are at least 2 principals:
The crime is
committed by means
of any such acts
involving great waste
or ruin.
The crime is committed
on the occasion of a
calamity or misfortune.
• The principal by inducement (one who
offers)

The principal by direct participation (accepts)

2. The price, reward, or promise should be previous to and in consideration of the commission of the criminal act

NOTE: The circumstance is applicable to both principals .It affects the person who received the price / reward as well as the person who gave it.

If without previous promise it was given voluntarily after the crime had been committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty.

The price, reward or promise need not consist of or refer to material things or that the same were actually delivered, it being sufficient that the offer made by the principal by inducement be accepted by the principal by direct participation before the commission of the offense.

The inducement must be the primary consideration for the commission of the crime.

Par. 12. That the crime be committed by means of

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inundation, fire, poison, explosion, stranding

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of a vessel or intentional damage thereto, derailment of a locomotive, or by use of any artifice involving great waste and ruin

The circumstances under this paragraph will only be considered as aggravating if and when they are used by the offender as a means to accomplish a criminal purpose

Par. 13. That the act be committed with evident premeditation

Requisites:

The prosecution must prove –

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his determination; and

3. A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow his conscience to overcome the resolution of his will.

Essence of premeditation: The execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment.

To establish evident premeditation, it must be shown that there was a period sufficient to afford full opportunity for meditation and reflection, a time adequate to allow the conscience to overcome the resolution of the will, as well as outward acts showing the intent to kill. It must be shown that the offender had sufficient time to reflect upon the consequences of his act but still persisted in his determination to commit the crime. (PEOPLE vs. SILVA, et. al., GR No. 140871, August 8, 2002)

Premeditation is absorbed by reward or promise.

When the victim is different from that intended, premeditation is not aggravating. However, if the

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Criminal Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 offender premeditated on the killing of
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ATENEO CENTRAL BAR OPERATIONS 2007
offender premeditated on the killing of any
person, it is proper to consider against the
offender the aggravating circumstance of
premeditation, because whoever is killed by him
is contemplated in his premeditation.
DISGUISE (disfraz) – resorting to any device to
conceal identity.
Par. 14. That (1) craft, (2) fraud, or (3) disguise be
employed.
The test of disguise is whether the device or
contrivance resorted to by the offender was
intended to or did make identification more
difficult, such as the use of a mask or false hair or
beard.
Requisite
The offender must have actually used craft, fraud, or
disguise to facilitate the commission of the crime.
The use of an assumed name in the publication
of a libel constitutes disguise.

CRAFT (astucia) – involved the use of intellectual trickery or cunning on the part of the accused. A chicanery resorted to by the accused to aid in the execution of his criminal design. It is employed as a scheme in the execution of the crime.

FRAUD (fraude) – insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design.

FRAUD

CRAFT

Where there is a direct inducement by insidious words or machinations, fraud is present.

The act of the accused done in order not to arouse the suspicion of the victim constitutes craft.

Craft and fraud may be absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or they may co-exist independently where they are adopted for a different purpose in the commission of the crime.

Ex:

In People vs. San Pedro (Jan. 22, 1980), where the accused pretended to hire the

driver in order to get his vehicle, it was held that there was craft directed to the theft of the vehicle, separate from the means

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subsequently used to treacherously kill the

defenseless driver.

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In People vs. Masilang (July 11, 1986) there was also craft where after hitching a ride, the accused requested the driver to take them to a place to visit somebody, when in fact they had already planned to kill the driver.

Par. 15. That (1) advantage be taken of superior strength, or (2) means be employed to weaken the defense.

Par. 15 contemplates two aggravating circumstances, either of which qualifies a killing to murder.

MEANING OF “advantage be taken”:

To deliberately use excessive force that is out of proportion to the means for self-defense available to the person attacked. (PEOPLE vs. LOBRIGAS, et. al., GR No. 147649, December 17, 2002)

No

Advantage

Of

Superior

Strength

In

The

Following:

1. One who attacks another with passion and obfuscation does not take advantage of his superior strength.

2. When a quarrel arose unexpectedly and the fatal blow was struck at a time when the aggressor and his victim were engaged against each other as man to man.

TEST for abuse of superior strength: the relative strength of the offender and his victim and whether or not he took advantage of his greater strength.

When there are several offenders participating in the crime, they must ALL be principals by direct participation and their attack against the victim must be concerted and intended to be so.

Abuse of superior strength is inherent in the crime of parricide where the husband kills the wife. It is generally accepted that the husband is physically stronger than the wife.

Abuse of superior strength is also present when the offender uses a weapon which is out of proportion to the defense available to the offended party.

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Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 “BY A

Criminal Law Summer Reviewer

Criminal Law Summer Reviewer A TENEO C ENTRAL B AR O PERATIONS 2007 “BY A BAND”

ATENEO CENTRAL BAR OPERATIONS 2007

“BY A BAND”

“ABUSE OF

SUPERIOR

STRENGTH”

The element of band is appreciated when the offense is committed by more than three armed malefactors regardless of the comparative strength of the victim or victims.

The gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims.

 

Hence, what is taken into account here is not the number of aggressors nor the fact that they are armed, but their relative physical strength vis-a vis the offended party.

NOTE: Abuse of superior strength absorbs cuadrilla (“band”).

MEANING

OF

“Means

employed

to

weaken

defense”

-

the

offender

employs

means

that

materially weaken the resisting power of the offended party.

Ex:

1. Where one, struggling with another, suddenly throws a cloak over the head of his opponent

and while in this situation he wounds or kills him.

2. One who, while fighting with another, suddenly casts sand or dirt upon the latter eyes and then wounds or kills him.

3. When the offender, who had the intention to kill the victim, made the deceased intoxicated, thereby materially weakening the latter’s resisting power.

NOTE: This circumstance is applicable only to

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crimes against persons, and sometimes against

person and property, such as robbery with physical injuries or homicide.

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Par. 16. That the act be committed with treachery (alevosia)

TREACHERY – when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend

directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make.

Requisites:

1. That at the time of the attack, the victim was

not in a position to defend himself; and

2. That the offender consciously adopted the particular means, method or form of attack employed by him.

TEST: It is not only the relative position of the parties but, more specifically, whether or not the victim was forewarned or afforded the opportunity to make a defense or to ward off the attack.

Rules Regarding Treachery:

1. Applicable only to crimes against persons.

2. Means, methods or forms need not insure accomplishment of crime.

3. The mode of attack must be consciously adopted.

Treachery is taken into account even if the crime against the person is complexed with another felony involving a different classification in the Code. Accordingly, in the special complex crime of robbery with homicide, treachery but can be appreciated insofar as the killing is concerned.

The suddenness of attack in itself does not constitute treachery, even if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was accidental.