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Midterms for Criminal Law 1

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Memory Aid for Criminal Law 1


clear and convincing evidence; otherwise, conviction
would follow from his admission that he killed the
victim.

The circumstances affecting criminal liability:


No criminal 1. Justifying Circumstances
liability
2. Exempting Circumstances and other
absolutory causes
3. Mitigating circumstances: reduced criminal

The quantum of evidence needed to establish self-defense is


proof beyond reasonable doubt. The accused in this case,

must rely on the strength of his defense, and not on


the weakness of that of the prosecution.

liability
4.

Aggravating circumstances: increase criminal


liability

5.

Alternative circumstances: will either have

increased or reduced liability depending upon the


situation obtaining in the commission of the felony.

1.
2.

Article 11: Justifying Circumstances

3.

Justifying Circumstances
Those act of a person which is in accordance
with the law and is deemed not to have
transgressed the law, which in effect is free from
both criminal and civil liability.
There is no crime, there is no criminal, hence, he
should not called an offender but an actor.

REQUISITES FOR SELF-DEFENSE


All three circumstances must concur in a clear and
convincing evidence

Unlawful aggression
Reasonable necessity of the means employed to
prevent or repel it
Lack of sufficient provocation on the part of the
person defending himself

Intuitive Act
This act is geared on disarming, repelling or preventing
further harm from happening to ones self or another
person.

Passionate Act
This is an act which constitutes an intent to kill another
person.

JUSTIFYING CIRCUMSTANCES

a.
b.
c.
d.

Defense of self, of relatives and of strangers


State of necessity
Fulfillment of duty
Obedience to superior order

Unlawful Aggression

SELF-DEFENSE

The law on self-defense is


embodied in any penal system in justification of mans
natural instinct to protect, repel and save his honor,
chastity, life or property from impending danger or
peril.

A real or at least imminent offensive act coming


from the victim, positively determining the intent
of the aggressor to cause injury has been made.
The person defending himself must have been
attacked with actual physical force or with actual
use of weapon

A light push on the head with


the hands does not constitute unlawful aggression

A slap on the face is an


unlawful aggression since this is a physical assault
coupled with a willful disregard of an individuals
personality.

It is based on the impulse of selfpreservation born to man and part of his nature as a
human being.
In self-defense, the burden of proof rests upon the
defendant. His duty is to establish self-defense by

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Foot-kicking is not an
unlawful aggression since it is only a mere slight
provocation

Self-defense is always confined to only prevent further


harm from happening and not as means of retaliation.

What is the effect of presence of a


large number of wounds on the victim on the claim of selfdefense?

Real Aggression

An attack with physical force or with a weapon such as


to cause injury or danger to life or personal safety.

An offensive and positively strong attack that is


impending or at the point of happening.
It is not required that the attack already begins, for it
may be too late.

Imminent Unlawful Aggression

The presence of large number of wounds on the part of


the victim negates self-defense and instead indicates a
determined effort and intent to kill.
The claim of self-defense can be belied by physical
evidence. Thus, the number, location and nature of the
wounds would reveal whether it was self-defense or
intent to kill.
The mere fact that a person incurred injury does not mean
it already constitutes an unlawful aggression.

Reasonable Necessity of the


Means Employed to Prevent or Repel the Aggression
This means that the manner employed by the
defendant to prevent aggression that places him in an
imminent danger must be consistent with the means
employed by a reasonable and prudent man.

FACTORS TO BE CONSIDERED IN DETERMINING THE


REASONABLENESS OF THE MEANS EMPLOYED
These are all directed on the act and not on the actor

a. Circumstances surrounding the aggression


b. The state of mind of the aggressor
c. The available weapon at the defendants disposal.

Determination for Unlawful


Aggression
For unlawful aggression to be appreciated there must
be an actual, sudden, unexpected attack or imminent
danger and not just a mere threat or intimidating
attitude.
The accused must present proof of positively strong act of
real aggression as such to put in real peril the life or
personal safety of the person defending himself or of a
relative sought to be defended and not an imagined threat.
Unlawful aggression is important in a self-defense because
without the unlawful aggression there would be nothing to
prevent or repel. There is no need for a defense. If the
unlawful aggression no longer exists, the one making the
defense has not more right to kill or even wound the former
aggressor.

The defendant is allowed to use any kind


of weapon whether or not it is a high-powered one, as
long as it was only used to prevent further harm from
happening to him, his relatives, to strangers.

Weapon of Opportunity

Rule when Aggression Ceased to


Exist
When aggression ceased to exist there is no more
necessity for self-defense. The alleged defender in turn
becomes the aggressor if he would continue to attack.

The weapon at the defendants immediate disposal during the


attack which he used to defend himself against the aggressor
or victim.

FACTORS TO BE CONSIDERED IN THE MEANS


EMPLOYED

a. Whether the aggressor was armed.


b. The nature and quality of the weapon used.

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The physical conditions and sizes of both the


aggressor and the person defending himself.

EFFECT IF NOT ALL REQUISITE FOR SELF-DEFENSE


IS PRESENT
The accused should be entitled to either:
a. Justifying circumstances

Reasonable necessity of the means employed does not


imply material commensurability between the means of the
attack and the defense; what the law only requires is
rational equivalence.
Retaliation is different from an act of self-defense. In this
situation, the aggression that the offender begun has
already ceased to exist when the accused attacked him. In
self-defense, the aggression is still considered existing
when the aggressor was injured or disabled by the person
making the defense.

b.

Privileged mitigating circumstance under Article 69

c.

If the entire requisite for a justifiable circumstance


is present.
If majority of or two requisites are present which
should always include the unlawful aggression,
this will lower the liability by one degree.

Ordinary mitigating circumstance of incomplete


defense pursuant to Article 13(1)

If only the requisite of unlawful aggression is


present.
JUSTIFYING CIRCUSMTANCES FOR DEFENSE OF
PROPERTY

What makes the means employed


unreasonable?

The means employed becomes unreasonable and


unnecessary when after the aggression had ceased
and the victim no longer posed any threat of further
attack but still the accused continued inflicting injuries
on the victim.

If the aggression is on the property and


there was no attack or imminent danger on the life of the
owner, defense is proper but not to the extent of taking
ones life.

What constitute paramount


consideration in determining the reasonableness of the
means employed?

Self-preservation is of paramount consideration since


the person trapped by circumstances of person, place
and time will not examine the weapon of the aggressor
and calculate what weapon should he use. The only
thing on the mind of the trapped defender is how to
preserve his life from imminent peril
Self-help Doctrine

RULES WHEN A PERSON IS ATTACKED

Stand ground when in the right


Applies when the aggressor is armed with a
weapon and is especially more liberal if the
person attacked is a peace officer in the
performance of his duty.
This rule superseded the retreat to the wall rule.

Who should determine the existence


of these justifying circumstances?

The law justifies the act of the owner of a thing in


using such force necessary to protect his
possessory rights at the very moment of unlawful
taking deprivation thereof. But not to the extent of
taking the offenders life unless there is an
imminent danger posed on the life of the
defender.

It is the courts who will decide the existence of all the


requirements of self-defense and not the police since
these are matters of defense that should be litigated.
ELEMENTS OF DEFENSE OF RELATIVES or
STRANGERS

Retreat to the wall


This principle states that it is a duty of a person to
retreat as far as he can before he meets the
assault with force.

The person defending his relatives or a stranger must have no


part in the provocation.

a. Unlawful aggression

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b. Reasonable necessity of the means employed to


prevent or repel it
c. In case the provocation was given by the person
attacked, the person defending had no part therein.
For Strangers:
The defender is not induced by revenge, resentment
or other evil motives.
The Relatives to be Defended:
1. Defenders spouse
2. Ascendants
3. Descendants
4. Legitimate, natural or adopted brothers or sisters
5. Relatives by affinity in the same degrees and
those by consanguinity within the 4th civil degree
Defense of relatives from 5th degree of consanguinity falls

Is there a civil liability for the person


who was benefited by acting under the State of Necessity?

within the defense of strangers.

Yes, the person who has by the prevention of the harm


under the state of necessity shall be held civilly liable in
proportion to the benefit which they may have
received.
The reason why only the person who has been
benefited and not the actor is held liable is because
any actions under the State of Necessity which
benefited another person, is considered legal or
justified, and therefore the actor is not civilly liable.
FULFILLMENT OF DUTY

ELEMENTS OF FULFILLMENT OF DUTY or EXERCISE OF


RIGHT OR OFFICE

a. The offender acted in the performance of a duty or


the lawful exercise of a right or office.
b. The injury caused or the offense committed is the
necessary consequence of the due performance of
such right or office.
In the absence of the second requisite, the justification

What does defense of honor


encompass?

It encompasses defense of ones chastity or reputation


however there must be an imminent and immediate
danger of ones honor to justify the killing.

Slander by means to repel oral


defamation
For slander to become a justifiable circumstance all
three requisite must be present furthermore, it must not
be more than what is needed to defend ones self from
the defamatory remarks.

becomes incomplete and thereby converting it into a


mitigating circumstance.
The officers must not be negligent in the fulfillment of their
duties since negligence could not give rise to the fulfillment
of duty as justifying circumstances.

Appellant was not in the performance


of his duties at the time of the shooting for other girls he was
attempting to arrest were not committing any act of prostitution
in is presence. The fatal injuries that appellant caused the
victim were not necessary consequence of his performance of
duties as a police officer since his duty to arrest does not
include any right to shoot them. (People vs. Peralta)
OBEDIENCE TO SUPERIOR ORDER

Lack of Sufficient Provocation


The part of the person defending himself shows that
there may have been a provocation but it is insufficient
enough to warrant the wrong done as a justifiable
circumstance.

ELEMENTS FOR OBEDIENCE TO SUPERIOR ORDER

a.
b.
c.

STATE OF NECESSITY

ELEMENTS OF THE STATE OF NECESSITY

a. The evil sought to be avoided actually exists.


b. The injury feared is greater than that done to
avoid it.
c. There is no other practical and less harmful
means of preventing it.

An order has been issued by a superior


The order is for legal purpose
The means used to carry out such order is lawful
Even if the order is illegal but it came from a legal source
and the subordinate is not aware of its illegality, the
subordinate is not liable. (Tabuena vs. Sandiganbayan)

Article 12: EXEMPTING CIRCUMSTANCES

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Exempting Circumstances
These are situations which although the act is
criminal, the circumstances pertaining to the
offender calls for his exemption from criminal
liability.

a. Insanity is manifested by a deranged and perverted


condition of the mental faculties which is manifested
in language and conduct.
b. This is shown by the surrounding circumstances
evidencing the alleged deranged persons general
conduct and appearance, his acts and conduct
consistent with his previous character and usual
habits.

Imbecility/ insanity
Minority
Accident
Compulsion of irresistible force
Impulse of uncontrollable fear
Insuperable or lawful cause
JUSTIFYING vs. EXEMPTING

JUSTIFYING
The act is legal, within
the bounds of law.
There is no crime, hence,
the accused is not
regarded as a criminal
Since there is no crime,
there is no criminal &
no civil liability.
The emphasis of the law
is on the act.

EXEMPTING
The act is criminal.

CIRCUMSTANCES THAT WILL NEGATE THE CLAIM FOR


INSANITY
a. Immediately after he killed the victims he thought of
surrendering to law enforcement authorities
This is a proof that the accused knew what he had
done was wrong and that he was going to be punished
for it.
b. He showed remorse during his confinement at the
mental hospital
This is inconsistent with insanity, as it is clear
indication that he was conscious of his acts, he
acknowledged his guilt and was sorry for them.
c. He was able to give a sworn statement at the
prosecutors office immediately after the commission
of the crimes narrating his version of the incident.
There is a difference between a man who is frenzy
with anger that he fails to use reason or good
judgment in what he does than that of a genuinely
insane person.

There is a crime & a


criminal.
Since there is a crime,
there is a criminal and
there is a civil liability.
The emphasis of the law is
on the actor.

INSANITY

Mere abnormalities of mental faculties will not exclude


Imputability.
MANISFESTATION OF INSANITY

EXEMPTING CIRCUSTANCES

a.
b.
c.
d.
e.
f.

Discernment
The ability to know what is wrong and what is
right

RULES WHEN INSANITY IS USED AS A DEFENSE


The Burden of Proof:

Insanity/ imbicibility
An adult which has a mental age of a kid.
A manifestation in language or conduct of
disease or defect of the brain or a more or less
permanently diseased or disordered condition of
the mentality, functional or organic and
characterized by perversion, inhibition or
disordered function of the sensory or of the
intellective faculties or by impaired or disordered
volition.
This exists when there is a complete deprivation
of intelligence in committing the act. The accused
is deprived of reason, he acts without the least
discernment because there is complete absence
of power to discern or there is a total deprivation
of freedom of the will.

Rests upon the accused to establish the fact of


insanity, for the law presumes every man to be sane.
Hence, in the absence of sufficient evidence to prove
insanity, the legal presumption of sanity stands

The trial judge is the one who will


determine insanity

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The law presumes that every man is of sound mind, unless it

is proven otherwise. The allegation of insanity must be


clearly proved.
When does insanity occur to be exempting:

The question as to the state of mind of the defendant


should relate:
a. From the period immediately before or
b. At the precise moment of doing the act

What is required for imbecility to be


accepted as defense?

a.
b.

The defendants mental condition after that period is


immaterial for the purpose of determining his criminal
liability.

MINORITY

Quantum of evidence required to overthrow


presumption of insanity:

Minimum age of Criminal Responsibility


under R.A. 9344:
A child under 15 years of age at the time of the

Proof beyond reasonable doubt is required. Insanity


is a defense in the nature of confession and
avoidance, and as such must be proved beyond
reasonable doubt.

commission of the offense shall be absolutely


exempt from criminal liability. However, the child
shall be subjected to an intervention program
pursuant to Section 20 of this Act.

The court shall order his confinement in one of the


mental hospitals or asylums, which he shall not be
permitted to leave without first obtaining the permission
of the same court.

CRITERION FOR INSANITY

a. Cognition test
- Complete deprivation of intelligence in committing
the criminal act.
b. Volition test
- A total deprivation of the freedom of the will.

The exemption from criminal liability herein established


does not include exemption from civil liability, which shall
be enforced in accordance with existing laws however it
cannot caveat property or funds needed by the minor for
self-sustenance.

a.

SCHIZOPHRENIA

b.

Schizophrenia (formerly called:

Determination of the Minors Age


Birth certificate, baptismal certificate or any other
pertinent documents.
In the absence of these documents, the information
may be attain from the childs testimony, testimony of
other persons, the physical appearance of the child or
other relevant evidence.

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 18 years old or older. In
case of doubt as to the age of the child, it shall be
resolved in his/her favor.

Dementia Praecox)

A child above 15 years old but below 18 years of


age shall likewise be exempt from criminal liability

and be subjected to an intervention program,


unless he/she acted with discernment, in which
case, the child will be subjected to the
appropriate proceedings.

What should be done to an insane or


imbecile who has committed a felony?

Complete deprivation of intelligence in committing the


criminal act.
Total deprivation of freedom of the will.

A chronic mental disorder characterized by the


inability to distinguish between fantasy and reality
which is often accompanied by hallucinations and
delusions.
The most common psychosis that usually
develops between ages 13 and 30
This is a mitigating circumstance under Article
13(9).

Contesting the age of the child in conflict with the law

Before any case is filed:


Any person contesting the age of the child in
conflict court may file a case in a summary
proceeding for the determination of age before
the Family Court, which shall decide the case
within 24 hours from receipt from appropriate
pleadings.

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The Burden of Proof:

The burden of proving the commission of the crime


remained with the prosecution.

After a case has been filed:

The person shall file a motion to determine the


age of the child in the same court where the case
is pending. Pending hearing on the said motion
shall result to the suspension of the main case.

Minors as defined in R.A. 9344

What is the basis for exemption from


criminal liability for accident?

- Children under the age of 18


Classified as:
a. Children at Risk
- those who are vulnerable to and are risk of
committing criminal offenses because of
personal, family and social circumstances.

The exemption from criminal liability under the


circumstances of accident is based on the lack of
criminal intent. For an accident to be exempting, the
act has to be lawful.

b. Children in conflict with the law (CICL)


- Those who are alleged as accused of or
adjudged as having committed an offense.
How are penal laws to be construed as
to minor offenders?

Penal laws shall be liberally construed in favor of the


child in conflict of the law.

Negligence
The omission to do something which a
reasonable man, guided by those considerations
which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which
a prudent and reasonable man would not do.
IRRESTIBLE FORCE

ACCIDENT

The harm caused is immediate and directed to the person concerned

ELEMENTS OF IRRESISTIBLE FORCE

a. The force must be physical, must come from an


outside source, and the accused must act not only
without a will but even against his will.
b. The actor must be reduced to a mere instrument,
such that the element of freedom is wanting.
c. The duress, force, fear or intimidation must be
present, imminent and impending and of such a
nature as to induce a well-grounded fear of death or
serious bodily injury if the act is not done.
In irresistible force a threat of injury is not enough. The

Accident
An occurrence that happens outside the sway of
our will, and although it comes about through
some act of our will, lies beyond the bounds of
humanity foreseeable consequences.
Connotes absence of criminal intent

compulsion must be of such a character as to leave no


opportunity to the accused for escape or self-defense.

Criminal liability does not arise in case a crime is


committed by any person who, while performing a lawful
act with due care, causes an injury by mere accident
without fault or intention of causing it. The exemption from
criminal liability under the circumstance showing accident is
based on the lack of criminal intent.

What is essential for duress to be

(People vs. Agliday G.R. No. 140794)

valid defense?

REQUIREMENT FOR ACCIDENT TO BE ACCEPTED

1.
2.
3.

Accused was performing a lawful act with due care.


The injury is caused by mere accident.
There was no fault or intent of causing the injury.
The accident must not be foreseeable or there will be fault
or criminal negligence
In case of accident, the actor must not abandon the victim
or else he will be liable for abandonment.
RULES WHEN ACCIDENT IS USED AS A DEFENSE

For duress to be validly availed of as a defense, it


should be anchored on a real, imminent or reasonable
fear for ones own life or limb and should not be
speculative, fanciful or imagined.

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Actus me invite factus non est


meus actus

An act done by me against my will is not my act.


The compulsion enacted upon the accused must
be of such character that it leaves no opportunity
for him to spring an escape or to himself foist any
act of defense for self-preservation.

Insuperable Cause
This is an exempting circumstance which applies
to felonies by omission. The law imposes a duty
on the offender to perform an act but his failure to
do so is due to lawful or insuperable cause.

ELEMENTS OF INSUPERABLE CAUSE

The act is required by law to be done


A person fails to perform such act
That his failure for such act was due to some lawful or
insuperable cause

UNCONTROLLABLE FEAR

Article 13: Mitigating Circumstances

Uncontrollable Fear
This is founded on duress or lack of voluntariness
on the part of the actor
- The harm is not tangible and not directed to the
person considered
Duress or Fear
- For this to be considered as a valid defense, it
should be based on real, imminent or reasonable
fear for ones life or limb and should not be
speculative, fanciful or remote fear.
- As long as there is some form of escape and the
accused did not avail of that escape, then this is
no available.
-

Mitigating Circumstances
This shows the lesser perversity of the offender
and has the effect of lowering the penalty
prescribed for the offense.
This is personal to the accused in whose favor
they exist & cannot be enjoyed by his coaccused.
This need not be alleged in the information since
this is a defense.
MITIGATING CIRCUMSTANCES

1. When only two requisite of a justifiable circumstance


are present.
2. The offender is under 18 or over 70 years old.
3. Praeter Intentionem: The offender had no intention to
commit so grave a wrong as that committed.
4. There was sufficient provocation or threat on the part
of the offended party immediately prior to the
commission of the act.
5. The act was committed in the immediate vindication
of a grave offense to the one committing the felony,
his spouse, ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or relatives by
affinity within the same degree.
6. That of having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation.
7. The offender had voluntarily surrendered himself to a
person in authority or his agents, or he had voluntarily
confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.
8. The offender is deaf and dumb, blind or otherwise
suffering some physical defect which restricts his

ELEMENTS OF UNCONTROLLABE FEAR

a. Threat which caused the fear of an evil greater than


or at least equal to that which the accused was
required to commit.
b. It promised an evil of such gravity and imminence that
the ordinary man would have succumbed to it.
The fear experienced by men who allege hearing voices or
suspect other persons would kill or harm them cannot
qualify as that fear that could exempt them from criminal
liability. At most, such fear which drives a person to a
nervous breakdown could be mitigating.
INSUPERABLE CAUSE

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means of action, defense or communication with his


fellow beings.
9. Such illness of the offender as would diminish the
exercise of the will-power of the offender without
however depriving him of consciousness of his acts.
10. Any other circumstance of similar nature and
analogous to those mentioned above.

INCOMPLETE JUSTIFYING or EXEMPTING CIRCUMSTANCES


REQUIREMENT for the MITIGATIG CIRCUMSTANCE of INCOMPLETE
JUSTIFICATION or EXEMPTION to be PRESENT

Incomplete Justification of Self-Defense

There must always be an unlawful aggression


otherwise there is nothing to defend and
consequently no occasion to justify the act in
defense of self, relatives or strangers.
Without unlawful aggression there is neither
complete nor incomplete defense.

The rationale for mitigating


circumstances
The rationale behind the whole concept is to

show mercy and some extent of leniency in favor


of an accused who has lesser perversity in the
commission of an offense.

Incomplete

Justification

of

Accident
a.

b.

Lowers the impossible penalty, whether divisible


or indivisible, by one or more degrees.

Specific

Lowers the penalty to the minimum period,


available only if the penalty is divisible and if
there are no aggravating circumstances present

Privileged

c.

CLASSIFICATION OF MITIGATING CIRCUMSTANCES


Ordinary

ORDINARY & PRIVILGED MITIGATING FOR INCOMPLETE


SELF-DEFENSE

Ordinary Mitigating Incomplete Self-Defense

Applies to a specific felony which can either be


ordinary or privileged depending upon the effect
of the penalty.

The presence of 2 mitigating circumstances will operate as


a privilege circumstance.

Ordinary
Can be offset by a
generic aggravating
circumstance
Penalty is lowered to
the minimum period of
the penalty prescribed
Not applicable when
what is prescribed is
single indivisible
penalty

The requisite of due care and lack of fault are


indispensable without which negligence will be
present rise to culpable felony.
If the requisite of lawful act and lack of intention
of causing the injury are absent, an intentional act
results in take the case out of the benefit of this
mitigating circumstance.

Privileged
Cannot be offset by
any aggravating
circumstance
Penalty is lowered by
one or two degrees

Privileged Mitigating Incomplete Self-Defense

Always considered
whether the penalty
imposable is divisible
or indivisible

When what is imposed on a convict is a penalty, made up


of two
indivisible penalties, ordinary
mitigating
circumstances shall operate to bring down the penalty to
the minimum.
An ordinary mitigating circumstance lowers the penalty to
the minimum period. The exception to this are when there
are two mitigating circumstances with no aggravating
circumstance attendant, allows penalty to be lowered by
one degree.
One and the same fact should not give credit to more than
one mitigating circumstance in favor of the accused.
- For instance, passion, vindication of a grave offense or
provocation cannot co-exist if all are ased upon the
same fact, hence, only one circumstance will be
appreciated as mitigating.

When unlawful aggression alone is proved, such


incomplete defense is appreciated as an ordinary
mitigating circumstance.
If there is only one or less than majority of the
elements are present, the incompleteness will be
considered
as
an
ordinary
mitigating
circumstance which can be offset by a generic
When unlawful aggression is combined with
another element, such incomplete self-defense is
becomes privileged mitigating which provides for
the penalty lower by one or two degrees than that
prescribed.
It is necessary that there be present majority of
the elements of the circumstances for privilege
mitigating to apply which can be cannot be offset
by any aggravating circumstance and is even
considered even if the penalty prescribed is
single and indivisible.

Justifiable circumstances will only apply if majority of the


conditions required to justify criminal act or exempt from
liability are present.

Is unlawful aggression a mitigating


circumstance?

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No, unlawful aggression is never mitigating; it is the


incompleteness of the requisites for self-defense which
is mitigating.
Unlawful aggression is only a mere but indispensible
component of the defense of ones self, relatives or of
strangers.
MINORITY & SENILITY

Lack of intent to commit so grave


a wrong
- This is shown by means employed of the
accused, the nature and the location of the
wound.

Senility
Is an ordinary mitigating circumstance except
when the penalty imposable is death in which
case it shall be reduced to reclusion perpetua
pursuant to Article 83 of RPC, thus, partaking the
nature of a privileged mitigating circumstance.

When can praeter intentionem NOT be


invoked?

NATURE OF MINORITY AS A MITIGATING CIRCUMSTANCE

It is never an ordinary mitigating but always a privileged


mitigating circumstances

The reason:
a. Article 47: Dictates that if the death penalty is
imposable, the penalty will be lowered to reclusion
perpetua
b. R.A. 9344: Mandates that if the minor is 15 or under,
he shall be exempted from criminal liability
c. Article 68(2) in relation to R.A. 9344: Requires that if
the minor is over 15 but under 18 and he acted with
discernment he shall be entitled to a reduction of
penalty to the next lower degree but in the proper
period.
Mitigating circumstances of minority should be appreciated

SUFFICIENT PROVOCATION

in favor with the child in conflict with the law who was
clearly a minor when he committed the offense, especially
in the light of the compassionate liberty of the Court has
granted minors involved in serious crimes.

PRAETER INTENTIONEM

Sufficient Provocation
An act adequate enough to excite a person to
commit the wrong and must accordingly
proportionate to its gravity.

Requirements for sufficient provocation

The provocation must be sufficient

No lapse of time

(People vs. Nabora, 73 Phil. 434, 435)

This cannot be invoked if the acts of the accused are


sufficient to bring about the result intended or when the
means employed would naturally result to a felony
committed.
This does apply to culpa or to crimes not involving
intent since the word Intentionem denoted intentional
felonies.

Praeter Intentionem
It is the lack of intention to commit so grave a
wrong as that committed.
There should be a great disparity between the
intent shown by the means employed to
accomplish the criminal act and its resulting
consequences.
This is only appreciated as a mitigating
circumstance when the accused had no intent to
kill but only to inflict injuries when he attacked the
victim.

Immediate to the commission of the crime


Must originate from the offended party

Provocation is considered immediate if no interval of time

elapsed between the provocation and the commission of


the crime.
Sufficient provocation alone could not mitigate the criminal
liability of the accused. When an offended party flees from
his aggressor, the latter has no more reason to pursue and
attack him
(People vs. C.A. & Tangan, G.R. No. 103613)

Sufficient provocation as a requisite of incomplete


self-defense is different from sufficient provocation as
a mitigating circumstance. As an element of self-defense,
it pertains to its absence on the part of the person
defending himself; while as a mitigating circumstance, it
pertains to its presence on the part of the offended
party. Besides, only one mitigating circumstance can
arise out of one and the same act. The word

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"sufficient" means adequate to excite a person to


commit a wrong and must accordingly be
proportionate to its gravity.

the crime by a considerable length of time during which the


offender might have recovered from his senses.

VINDICATION OF A GRAVE OFFENSE

For instance, a person who


maintains an illicit relationship with the wife of another is courting
the passion or obfuscation of the husband because his act of
having an affair with the wife is unjust and sufficient to make the
passion of the husband to arise.

Immediate Vindication Offense

Any act or event which offends the accused


causing mental agony to him and moves him to
vindicate himself of such offense.

How further should the act that


produces or obfuscation be from the commission of the
crime?

What Immediate implies in


vindication offenses

This means proximate which allows for a lapse of


time as long as the offender is still suffering from
the mental agony brought by the offense to him.
These circumstances cannot be considered in favor of the
accused when he had sufficient time to recover his serenity.

The act producing obfuscation must not be far


removed from the commission of the crime by a
considerable length of time, during which the
accused must have regained his normal
equanimity.

PASSION & OBFUSCATION

In this case, 30 minutes


intervened between the fistfight and the killing of X and Y. The
attack cannot, therefore, be said to be the result of a sudden
impulse of natural and uncontrollable fury. Having been actuated
more by spirit of revenge or by anger and resentment than those
that is considered as a result of passion and obfuscation.

Passion & Obfuscation


When a person does an act without being able to
see the light of reason because of the
overwhelming passion he is feeling.

When is passion and obfuscation not


appreciated?

Requisites for Passion & Obfuscation

The passion or obfuscation must arise from the


accuseds lawful sentiments.
The victim must have done an act unlawful and
sufficient to excite passion or obfuscation on the
part of the accused.

In Passion & Obfuscation, it is necessary that it arouse


from a lawful sentiment. There must be an act unlawful and
sufficient to excite passion & obfuscation on the accused.
Said act must not be far removed from the commission of

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The court will not appreciate passion and obfuscation


where the anger did not arise from lawful sentiments.
This mitigating circumstance cannot co-exist with
treachery or evident premeditation because passion or
obfuscation is a spur of the moment. It cannot be
appreciated if the acts of the accused were done in the
spirit of revenge and lawlessness, for which no
mitigating circumstances can arise.
It cannot also be claimed in addition to vindication of
grave offense if the two circumstances arose from the
same cause.

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Will injury resulting from a quarrel


constitute passion or obfuscation?

No, for passion and obfuscation to be mitigating, the


same must originate from lawful feelings. The
excitement which is inherent in all persons who quarrel
and come to blows does not constitute obfuscation.
Furthermore, the turmoil and unreason that would
naturally result from a dispute should not be confused
as the same sentiment in the mind of the injured or
offended party that would deprive him of his sanity and
self-control.

People vs. Ernesto Morato


The evidence shows that on the day following the killing, accusedappellant surrendered to the Provincial Commander. That the
Provincial Commander announced over the radio that he would
issue a "shoot to kill" order unless accused-appellant voluntarily
surrenders, and that accused-appellant was persuaded to
surrender by his employer do not militate against the consideration
of his voluntary surrender as a mitigating circumstance. The
stubborn fact remains that he was not arrested and that he
presented himself to the Provincial Commander to surrender. (In
this case, no information was yet filed against the accused since
his identity is still unknown)

VOLUNTARY SURRENDER

This means bodily surrender and not just the weapon

ELEMENTS:

a. The offender surrendered to a person in authority or


his agent.
b. The offender surrendered before arrest is effected.
c. The surrender must be voluntary, spontaneous and
must show the intent of the accused to submit himself
unconditionally to the authorities
d. either because he acknowledges his guilt
e. He wishes to save them the trouble and expense
incidental to his search and capture.
There must be no pending warrant of arrest or information

Who should surrender?

filed yet against the accused at the time of the voluntary


surrender.

The offender himself should be the one who


surrendered because the essence of voluntary
surrender is spontaneity and the intent of accused to
give up and submit 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 PLEA OF GUILTY

ELEMENTS:

Voluntary plea of guilty must be made:


a. In an open court
- The plea of guilt should be made in the court with
competent jurisdiction of the crime.
b. Spontaneously and unconditionally
c. Prior to the presentation of the evidence of the
prosecution
An extra-judicial confession is not within the concept of

What determines whether the


surrender is voluntary?

The surrender must be spontaneous and deliberate, that


is, there must be intent to submit unconditionally to the
authorities.

People vs. Rebamontan:


It was the police officer who went looking for the accused
immediately after obtaining information from eye witnesses as to
who had perpetrated the crime, even if he did not resist arrest or
deny his criminal act, this cannot be equated with voluntary
surrender.

voluntary plea of guilt because it is not made in an open


court. The court must be one of original jurisdiction
because it must be made before the presentation of the
prosecutions evidence, which means the case is being
tried for the first time. Furthermore, the court must possess
jurisdiction to hear and decide the case for if the court is
acting without jurisdiction, all proceedings there are void for
lack of jurisdiction, including the taking of the plea of the
accused.
(People vs. Mendoza, 231 SCRA 264)

Under the 1985 New Rules on Criminal Procedure, as


amended, when the accused pleads guilty to a non-capital
offense, the court may receive evidence from the parties to
determine the penalty to be imposed. This rule is at most
directory. It will certainly be a clear abuse of discretion on
the part of the judge to persist in holding the accused
bound to his admission of guilt and sentencing him
accordingly when the totality of the evidence points to his
acquittal. There is no rule which provides that simply
because the accused pleaded guilty to the charge that his
conviction automatically follows. Additional evidence

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actions, defense or communication to his fellow


beings.
b. The illness or defect is the contributory cause that
moved him to commit the offense.

independent of the plea may be considered to convince the


judge that it was intelligently made.

(People vs. Magat, G.R. No. 130026)

It is the essence of a plea of guilty that the accused admits


absolutely and unconditionally his guilt and responsibility
for the offense imputed to him. Hence, an accused may not
foist a conditional plea of guilty on the court by admitting
his guilt provided that a certain penalty will be meted unto
him.

What is required for the DEFECT of the


offender to be mitigating?

Why is voluntary surrender


mitigating?

It is mitigating because it is an act of repentance and


respect for the law. It indicates a moral disposition in
the accused favorable to his reform.

In order for this condition to be appreciated, it must be


shown that such physical defect limits his means of
communication with his fellow beings to such an extent
that he did not have complete freedom of action,
consequently resulting in diminution of the element of
voluntariness.
Such cannot be appreciated where the defendants
physical condition clearly did not limit his means of
action, defense or communications nor affect his free will.

What is the effect of an improvident


plea of guilt?

The accused be acquitted if the only evidence of his


guilt is his improvident plea due to the prodding of his
lawyer from the Public Attorneys Office.

What is required for the ILLNESS of


the offender to be mitigating?

ANALOGOUS CIRCUMSTANCES

May voluntary plea of guilt and


voluntary surrender be both considered in one case?

The illness must only diminish and not deprive the


offender of the consciousness of his acts, otherwise he
will be exempt from criminal liability.
The defect or illness must be contributory to the
commission of the crime. Without such relation, the
defect or illness shall not be considered.

Yes, these two circumstances are separate and distinct


from each other. They do not arise from the same facts
and circumstances, hence, will entitle the offender to
two mitigating circumstances when both are present.

PHYSICAL DEFECTS & ILLNESS

The appreciation of analogous circumstances lies


within the sound discretion of the trial court
considering all the facets of the case that would best
serve the interest of justice.
This manifest the liberal interpretation of the law in
favor the offender.

Article 14: Aggravating Circumstances

Illness
This diminish or deprive the offender of the
consciousness of his acts, otherwise he will not be
exempt from criminal liability.
REQUIREMENTS:
-

a. The offenders being deaf & dumb or blind or


otherwise suffering from some physical defect must
relate to the offense because the law requires that the
defect has the effect of restricting his means or

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Mitigating Circumstances
- Consider the lesser perversity of the offender;
hence, the penalty is reduced.
- These are matters of defense, hence, need not
required to be alleged in the information.
- There are analogous circumstances which are
left on the sound discretion of the judge whether
or not those circumstances will be appreciated as
a mitigating one.
Aggravating Circumstances
- These circumstances recognize that the offender
is of greater perversity, hence the penalty is
increased.

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This kind of circumstance must be alleged in the


information filed because it increases the penalty
and offender must be given an opportunity to
defend himself against it.
This circumstance does not contain any
analogous aggravating circumstance since the
intention of the legislators are to curtail whatever
discretion of the judge to appreciate any
circumstances which have the tendency to
impose the penalty to the maximum period.
This can only increase the penalty up to the
maximum period and never beyond the maximum
as indicated by the penalty.

(c) Increases the penalty to its maximum period and


never beyond it, as prescribed in the law provided
it is alleged in the information as required under
the RPC on Criminal Procedures. (RRCP)

Qualifying Circumstances
(a)
(b)

Why is there a lack of analogous circumstance in


aggravating circumstances?

The rationale for lack of analogous circumstances is


that a penal law is liberally construed in favor of the
offender and no person should be brought within its
terms if he is not clearly made so by the statute.
Quantum of evidence for aggravating circumstances:
Proof of guilt beyond reasonable doubt.
-

(c)
(d)

Section 8, Rule 110:


Aggravating Circumstances and qualifying
circumstances must be specified in the information. If
it is not specified in the information, even if it proven in
the trial, that cannot be appreciated as an aggravating
circumstance by the court for the purposes of
determining the proper penalty.

Special or Specific
Aggravating Circumstances

The Rationale:
- To inform the accused of the charge against him
because the accused will not only controvert the
crime itself charged against him but also any
circumstances that would tend to increase the
penalty imposable. Hence, the necessity of
stating this circumstances in the information.
- This must also be stated with specificity.

Cannot be offset by any mitigating circumstance


Change the nature of the crime and the
designation of the offense
Must be alleged in the information
Must be proved as conclusively as the guilt of the
offender

Specific aggravating circumstances which apply


to a particular felony.
This does not change the nature of the crime but
there is a different penalty imposed to specific
circumstances.

(People vs Regala)

There is no law that provides that additional rape or


homicide should be considered as an aggravating
circumstance therefore, it should not considered as such.
(People vs Villaver G.R. No. L32104)
Immoral Motive cannot be considered as an aggravating

Inherent Circumstances

circumstances since it is not among those enumerated in


Article 14 of the Revised Penal Code.

FOUR KINDS OF AGGRAVATING CIRCUMSTANCES

If it is an element of the crime itself, then it should not be


taken into consideration as an aggravating circumstance
for the purpose of determining the penalty.
Where one of the aggravating circumstances has been
used as a qualifying circumstance, then, the others will be
deemed generic.

Generic Aggravating
Circumstances

(a) Apply generally to all felonies


(b) Can be offset by an ordinary mitigating
circumstance

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An element of the felony committed which is no


longer considered against the offender in the
determination of the penalty.

Do qualifying circumstances increase the penalty to a


higher degree?
No, the penalty prescribed by law cannot be increased
because this will the rule set forth in Article 21 which states
that a penalty not prescribed by law cannot be prescribed to
the accused. Also, the ex post facto rule prohibits the
imposition of a penalty greater than that prescribed by law
when the crime was committed.

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Furthermore, it is not the qualifying circumstance itself that


increases the penalty by degree. What the qualifying
circumstance does it to change the nature of the crime
resulting in the increase of the penalty.

Fundamental requirement for qualifying circumstances should


allege in the information:

The rationale for this requirement of the right to


be informed of the existence of the qualifying
circumstance is for the accused to properly
prepare his defense to meet it head-on and this is
also because such circumstance changes the
nature of the charge against him.
Due process requires that the accused be given
fair notice of what he is being tried for.
How many circumstances are required to be used as a
qualifying circumstance?

Only 1 is required. Where one of the aggravating


circumstances has been used as a qualifying
circumstance, the others will be deemed as generic.
Presence
of abuse of official position

and ascendency which his office gives him in


realizing his purpose. There must be an intimate

Special Aggravating
Circumstances
- Those applicable to specific crimes. They do not
change the character of the offense charged but
only guides the court in imposing the proper
penalty. However, special aggravating
circumstances cannot be offset by an ordinary
mitigating circumstance.

This is present when the accused abuse his office


in order to commit the crime.
The public official must use the influence, prestige
connection between the offense and the office of
the accused.

Is conspiracy an aggravating circumstance?


No, conspiracy is neither aggravating nor qualifying but

rather a manner of incurring collective criminal liability


among every co-conspirator in an equal degree, where
the effect is that the act of one becomes the act of all.
One cannot prove aggravating circumstance just by mere
inference or by some indirect evidence; it must be proven
with the same manner as the crime itself would be proven,
with proof of guilt with reasonable doubt.
ABUSE OF OFFICIAL POSITION

Meaning
of taking advantage

Is the offenders being a public official ipso facto


aggravating?
-

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If the public officer has used the influence,


prestige or ascendancy (I.P.A.) of his office which
gives him a means in which he realizes his
purpose.
No, for such to be considered aggravating, the public
official must use the influence, prestige and

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(People vs. Ursal G.R. No. L-33768 April 20, 1983)

ascendency which his office gives him in realizing his


purpose.
A public officer commits an offense in relation to his office if
he perpetrates the offense while performing, though in an
improper or irregular manner his official functions and he
cannot commit the offense without holding his public office
INSULT TO PUBLIC AUTHORITIES

Rank
Refers to high social position or standing

Public Authority
One who is vested with jurisdiction
This covers not only persons in authority but also
agents of persons in authority and other public
officers.
Dwelling (Moranda)
This must be a building or structure, exclusively
sued for rest and comfort. This includes
dependencies, staircases and enclosures under
the house.
- It is not necessary that the house is owned by the
offended. It may include a boarding house, since
home is which the law seeks to protect whether
or not the dweller is a lessee, a boarder or a bed
spacer.
Rationale of dwelling (moranda) as aggravating circumstance:
- The reason is that it reveals the offenders
greater perversity in deliberately invading the
tranquility of ones domicile.
-

Crime of Direct Assault


The public authority is engaged in the discharge
of his duties and the offender knows that he is a
public authority.
This is an aggravating circumstance because
it shows disrespect of the offender in the
commission of the crime notwithstanding the
presence of public authority.

AGE, SEX, RANK OR DWELLING

4 CIRCUMSTANCES OF LACK OF RESPECT TO OFFENDED


PARTY

1. There must be proof that the offender deliberately


intended to offend or insult the offended party.
2. Cannot co-exist with passion or obfuscation, where
the offender lost his control of reason.
3. Considered crimes against person, security, or honor.
4. The circumstances of sex are not considered in
crimes where being a woman is an element thereof

such as parricide, rape, abduction or seduction.


Rationale of age, sex or rank as aggravating circumstance:

Instances when Dwelling is


NOT appreciated as aggravating
1. The offended or the victim has given the
provocation.
2. Both the offended and the offender live in the
same dwelling.
3. When dwelling is inherent in the crime such as
trespass of dwelling or robbery in an inhabited
place.

Those generally considered of high position in life


on account of their rank, age or sex deserves to
be respected.
Does age pertain only to old age?

If the store is a dependency of the dwelling or within the enclosure


of the house, then the store is considered an extension of the
dwelling and thus if the crime is committed within this area, it can
be appreciated as aggravating.

No, it also includes tender age.

Sex
The aggravating circumstance of sex is not
sustained by the fact that the victim was a
woman, unless it further appears that aside from
the unlawful taking of her life, there was in the
commission of the crime some specific insult or
disrespect shown to her womanhood

People vs Joya G.R. No. 79090,


Oct. 1, 1993:

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The crime committed was in a store, which is about 15 meters away from the
complainants home. The Supreme Court held that for a dwelling to be
considered an aggravating circumstance the dwelling must be used
exclusively for rest and comfort, a combination store and dwelling is not a
dwelling as used in the law.
In this case, the dwelling of the victim is in a part from the store where the
crime was committed.

REQUISITES FOR NOCTURNITY/ BAND, UNINHABITED


PLACE

1. It facilitated the commission of the crime.


2. It is especially sought for by the offender to insure the
commission of the crime or for the purpose of
impunity to avoid arrest.
3. The offender took advantage the circumstance in
order to avoid arrest.
NOCTURNITY / NIGHTTIME

People vs. Daciber and Dicon


G.R. No. 111286 (Feb. 2, 2000):
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.
Thus, in the case at bar, although the attack was made not from inside the
house but from below the floor of the house, nevertheless, the aggravating
circumstance of dwelling may be considered as attending the shooting, as in
fact the target/victim was hit inside his own house.

Must the offender enter the dwelling of the victim?


-

No, for dwelling to be considered, it is not necessary


that the accused should have entered the dwelling of
the victim to commit the offense, it is enough that the
victim was attacked inside his house, although the
assailant devised some means to perpetrate the
assault outside of the victims dwelling. What is
important is that the target victim was hit inside his own
house.

Nocturnity or nighttime
By and of itself is not an aggravating
circumstance, it only becomes an aggravating
circumstance if it was specially sought by the
offender, or taken advantage by him to facilitate
the omission of the crime or to ensure his
immunity from capture.

ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS

There must be some kind of intimacy

REQUISITES FOR ABUSE OF CONFIDENCE/ OBVIOUS


UNGRATEFULNESS

Time covered by Nocturnity

(a) The offended had trusted the offender.

It is essential to show that the confidence


between the parties must be immediate and
personal as would give the accused some
advantage or make it easier for him to commit the
criminal act.

This is the period from sunset to sunrise. The


crime must be committed exclusively at nighttime
and commenced at daytime because it is
necessary that the time was especially chosen by
the offender to commit the offense.

(b) The offender abused such trust.

The culprit taking advantage of the offended


partys belief that the former would not abuse the
said confidence.

(c) Such abuse of confidence facilitated the commission of


the crime.

The confidence must be a means of facilitating


the commission of the crime.

Felonies where Nocturnity is


NOT appreciated as aggravating
1. It is not considered in crimes where nighttime is a
mere accident or has no influence in the perpetration
of the crime.
2. Nighttime is absorbed in treachery.
3. It cannot be considered where the prosecution
established no more but the simple fact that the crime
was committed at night.
Nocturnity cannot be considered where the prosecution

Instances where Abuse of


Confidence is NOT appreciated as aggravating
1. Estafa
2. Swindling
3. Misappropriations
4. Qualified Theft where the qualifying circumstance
is the abuse of confidence

established no more than the simple fact that the crime was
committed at night since for nighttime to be considered
aggravating it must be proven that the offender deliberately
sought the perpetration of the crime at night.
2 TESTS FOR THE APPRECIATION OF NOCTURNITY

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Objective Test
- Whether or not nocturnity facilitated the
commission of the crime.
Subjective Test
- Whether or not it was purposely sought by the
offender in order to afford impunity.

Other Calamity or Misfortune


Those felonious acts which takes advantage of
calamities to commit the offense.
Requisites:
It refers to events similar in nature as conflagration,
shipwreck, earthquake or epidemic.
It cannot refer to acts of men.

Is nighttime a qualified circumstance?

Nighttime is not qualifying under Article 248. It is


absorbed in treachery if it is part of the treacherous
means to insure execution of crime, otherwise
nighttime is to be considered separately but as a
generic aggravating.
UNINHABITED PLACE

AID OF ARMED MEN


ELEMENTS OF AID OF ARMED MEN

1. The armed men or persons took part in the


commission of the crime, directly or indirectly
2. The accused availed himself of their aid or relied
upon them when the crime was committed.
Aid of armed men cannot be appreciated when there is

Locus Delicti or Uninhibitedness


of a place
- Uninhibitedness of the place is determined by the
reasonable possibility of the victim receiving
some help OR where there are no people or a
number of houses within a perimeter of less than
200 meters.

conspiracy, since in conspiracy they are all considered as


principal actors in the commission of the felony.
In band, the offenders are co-conspirators while in aid of
armed men; they are considered accomplices of the
principal offender.

It is not only the distance to the nearest occupied habitation


but also the possibility of securing assistance that should
be considered.

BAND

ORGANIZED CRIME
SYNDICATE

All the members are


principal

All the members are


principal

There must be at
least 4 armed men

There must be at
least 2 members are
who are not required
to be armed

Crimes are not


specified

The purpose is to
commit crimes for
gain

BAND

Band in Article 14 is a generic aggravating circumstance

Band consists of:


(a) More than three (four or more persons)
(b) Armed malefactors
-

Bad elements which at least four must be armed.


Does not refer to everyone being armed, at least one
man is sufficient provided that there are 4 or more
people.

(c) It should be intentionally organized with the intention

ARMED MEN
They merely aided
the principal offender
and thus considered
accomplices
The number is not
specified nor
required, as long as
there is more than
one
Crimes are not
specified

Syndicated Estafa P.D. 1689

(e) This requires that at least five members be not


armed; all other things are the same with an
organized crime.

of carrying out an unlawful design


Presupposing the presence of conspiracy
(d) They should have acted together in the commission of the
crime
In the crime of brigandage, band is absorbed. Since in
brigandage the mere organization of band association or a
group for the purpose of carrying out an unlawful design is
considered punishable.
A band, by necessity, must be an express conspiracy.

Illegal Recruitment in a large scale

(f) This requires that it be committed by at least three


offenders.
HABITUALITY
FORMS OF HABITUALITY

a.
b.
c.
d.

BAND is Inherent in the following felonies


1. Brigandage
2. Abuse of Superior Strength
CALAMITY OR MISFORTUNE

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Recidivism: Article 14 #9 Generic Aggravating


Reiteracion: Article 14 #10 Generic Aggravating
Habitual Delinquency: Article 62 #5 Special Aggravating
Quasi-recidivism: Article 160 Special Aggravating

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Recidivist
This is a person who after final judgment of a
previous felony, managed to commit another
offense which falls under the same title of the
RPC as the prior felony.

People vs Roland Molina G.R.


No. 134777-78, July 24, 2000:

To prove recidivism, it is necessary to allege the same in the


information and to attach thereto certified copies of the sentences
rendered against the accused. Nonetheless, the trial court may still
give such aggravating circumstance credence if the accused does
not object to the presentation of evidence on the fact of recidivism.

Nature of Recidivism

This is a generic aggravating circumstance.


There is no specific period between the prior
conviction and can also be appreciated even to a
convict who has given absolute pardon since
pardon only extinguishes the penalty but not the
effects of the offense.

Requirement for Recidivism to be

Appreciated

The prosecution must allege recidivism in the


information and present certified true copy of the
judgment of conviction in the other case.
Recidivism is an affirmative allegation whenever
alleged in the information and when the accused
enters a plea of not guilty to such information,
there is a joinder of issues not only to his guilt or
innocence in one crime but also as to the
presence or absence of the modifying
circumstance so alleged.

DISTINGUISH RECIDIVISIM FROM REITERACION


RECIDIVISIM
REITERACION
1.
2.

3.

Final Judgment means Executory

Reiteracion
The offender has been previously punished and
has finished serving his sentence
The first offense must have been punished with
equal or greater penalty than that of his current
offense
Or he has committed two or more crimes
previously to which the law attaches a lighter
penalty. This does not require that the offenses be
covered under same title of the RPC.

Nothing more has to be done with regards to the


decision of the court except to require the accuse
to serve the sentence

When is Judgment executory?


1. When 15 days has lapsed from its promulgation
without the convict appealing the conviction.
2. Offender started serving the sentence.
3. Expressly waives right to appeal.
4. The offender applied for probation.

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Antecedent

Previous conviction by
final judgment

Offenses

Under the same title of


RPC

Penalty

No requirement as to
penalty imposed in the
prior conviction

Service of sentence
Need not to be felony
nor under the same
Title
Prior crime must
have been penalized
with an equal or
greater penalty or
two or more crimes
was lighter penalty

Habitual Delinquency
- A special aggravating circumstance for which it
imposes an additional penalty that escalates with
the increase in the number of convictions. Thus,
the penalty for the actual felony committed plus
the penalty for the habitual delinquency, the total
of which should not exceed 30 years.
- An offender is considered a habitual delinquent if
within a period of 10 years from either his last
release or last conviction of the crimes
(FRETSeL) falssification, robbery, estafa, theft,
serious or less serious physical injuries and he is
found guilty of said crimes a third time or oftener.

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REQUIREMENTS FOR HABITUAL DELINQUENCY


A person is a habitual delinquent if:

1. Within a period of 10 years from his release or


last conviction
2. Of the crimes of falsification, robbery, estafa,
theft, serious or less serious physical injury
3. He is found guilty of said crimes a third time or
oftener.

habitual delinquency because of the opening phrase


Besides the provisions of Rule 5 Article 62. Its effect
is to penalize the convict with the maximum period for
the new felony committed before or during the
service of sentence.
Exception:

times fall under the same title of the code. Thus, the
penalty of the felony will be aggravated due to recidivism
plus the habitual delinquencys penalties as a special
aggravated circumstance following the rules of Article 62.
The law requires 3 convictions. The third conviction for the
covered crimes must be committed within 10 years from
the second conviction. The 10-year period shall be counted
from the date of release.
This is a special aggravating circumstance because its
effect is to impose an incremental penalty which is actually
an additional penalty to that imposed for the crime actually
committed.
- Two penalties shall be therefore imposed, one for the
crime actually committed and for the habitual
delinquency. The penalty for habitual delinquency
escalates with the number of convictions.
- This is not a qualifying circumstance since, although,
the increase in the penalty is significant, it does not
change the nature of the offense committed.

1. In the service of the first conviction, he reached


the age of 70
2. He shall complete the service of the original
conviction after that age, he shall be pardoned,
unless he is a habitual criminal or his conduct or
other circumstances show that he is not worthy
for pardon.

2.

3.

Two are enough

Crimes
covered

Must be both under


the same title of the
Code

Prescription

4.

5.

Convictions

Nature

penalty

None, as no time limit


is given by law
between the 1st and 2nd
convictions
Generic Aggravating
Circumstance; can be
offset by ordinary
mitigating
circumstance
Increase is to the
maximum period

Can recidivism and quasi-recidivism co-exist?


No, since Article 160 of the RPC expressly states that any
person who shall commit a felony after having been convicted
by final judgment, before beginning to serve such sentence,
or while serving the same, shall be punished by the maximum
period of the penalty prescribed by law for the new felony.
Hence, for the second offense it is mandatory that the
maximum period of the penalty shall be imposed and since
quasi-recidivism is a special aggravating circumstance it
cannot be offset by an ordinary mitigating circumstance. Thus,
there is no more room for the appreciation of recidivism.
PRICE, PROMISE and REWARD

DISTINGUISH RECIDIVISIM FROM HABITUAL


DELINQUENCY
HABITUAL
RECIDIVIST
DELINQUENCY
1.

The new crime committed before the or during service of


sentence must be a felony. It has been held the felony need
not be similar as the felony to be served or being served.
General Rule: Quasi-recidivism is in addition to

A person may be a habitual delinquent and recidivist at the


same time because what he may have committed three

It is not offset by ordinary mitigating


circumstance.

The aggravating circumstance is


attendant to the person who hired the guns for hire
and the person who allowed himself to be hired.

Three are required


Falsification, robbery,
estafa, theft, serious
and less serious
physical injuries
Prescribes after 10
years between the
2nd and 3rd offense
Special circumstance
cannot be offset
Entails additional
penalty which
increases with the
number of
convictions

Offeror
Principal by inducement

Quasi-recidivism
A special aggravating circumstances wherein the
offender has been previously convicted by final
judgment and before beginning to serve such
sentence, or while serving the same he committed
another felony.

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There must be an overt act from the accused


indicative of evident premeditation.
Indicates a stubborn adherence to a decision to
commit a felony.
Connotes to adherence to a plan to commit a
crime.

REQUISITES:

Acceptor
Principal by direct participation
- The aggravating circumstance is attendant to the
person who allowed himself to be hired when the
said circumstance is the primary motivation while
he committed the offense.
- If the acceptor committed the offense with or
without the price, reward or consideration then it
is not considered aggravating.
Affected people by the Circumstance of Price,
Promise or Reward:
They affect principally to those who have direct
participation in committing the crime for a
consideration.

Exception: The other co-conspirators if there are any,

who did not benefit from the price, promise or reward


will not have his penalty aggravated because this
circumstance is personal to the receiver.

The reward is the key element in the commission of the


crime which will make the circumstance aggravating.
INUNDATION, FIRE, ETC

Evident premeditation means that a period sufficient in a


judicial sense to afford full opportunity for mediation and
reflection and sufficient to allow the conscience of the actor
to overcome the resolution of his will if he desires to
hearken to its warnings has elapsed.
Evident Premeditation NOT Appreciated

There is no evident premeditation id the attack was in


the heat of anger or the meeting of the accused and
the victim was a chance encounter and not sought on
purpose.

Evident premeditation may not be appreciated against


the accused, absent of proof as to how and when the
plan to kill was hatched or what time elapsed before it
was carried out.

Evident premeditation is inherent in theft and robbery.

The quantum of evidence needed to establish evident

Circumstances of inundation, fire, poison,


explosion, etc.
- These circumstances are themselves already
constitutes a crime, hence, Article 62(1) will
apply:
Aggravating circumstances which in themselves
constitutes a crime specially punished by law or
which are included by the law in defining a crime
and prescribing the penalty therefore shall not be
taken into account for the purpose of increasing
the penalty

premeditation:

This means that if one of the above circumstances was


committed and there it is by itself considered a crime and
has a prescribed penalty under the law, then the
circumstance will no longer be considered aggravating.

This must be clearly proven, established beyond


reasonable doubt and must be based on external acts
which are evident and not merely suspected and which
indicate deliberate planning.
Proof of implied conspiracy does not imply the existence of
evident premeditation. It can be presumed only were
conspiracy is directly established, not where conspiracy is
only implied.
In the case of the complex crime of robbery and homicide,
evident premeditation may be appreciated since although

evident premeditation is inherent in robbery, it is not


considered inherent in homicide.

CRAFT, FRAUD, DISGUISE

EVIDENT PREMEDITATION

1. The TIME when the offender determined to


commit the crime.
2. An ACT manifestly indicating that he has clung to
his determination
3. Sufficient LAPSE OF TIME between such
determination and execution to allow him to
reflect upon consequences of his act.
Essence of Evident Premeditation
- The criminal act must be preceded by cool
thought and reflection of the resolution to carry
out the criminal intent during the space of time
sufficient to arrive at a calm judgment.
- It is significant that it must be shown when the
plan to execute the crime was hatched or what
time elapsed before it was carried out.

Evident Premeditation

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Craft
Cunning or intellectual trickery or chicanery
resorted to by the accused to carry out his evil
design.
If Craft is especially sought for to commit the
crime then this will be absorbed by treachery.

The offender assumed position of authority to gain entry in a


house or a feigning friendship to lure a victim to an inhabited
place.

Fraud
Constitutes deceit and is manifested by insidious
words or machinations.
Inherent estafa and cannot be considered
aggravating in the said felony.

Superiority in Numbers
This is does not necessarily mean that the
offenders abused their superior strength or that
means employed to weaken the defense.
It must be proved that the attackers cooperated in
such a way as to secure advantage form
superiority of strength.

Abuse of Strength NOT Appreciated


It is not taken into account if the assault was
characterized with passion or obfuscation or made
during a quarrel or when the attack was made on the
victim alternately and not simultaneously.
Superior strength is not appreciated by mere superiority in
the number of the malefactors, but by the deliberate
employment of excessive force, which is out of proportion
to the means of defense available to the person attacked.

TREACHERY/ ALEVOSIA

Disguise
Resorted to conceal the identity, however in spite
of the disguise the offender was still recognized,
then it cannot be considered as an aggravating
circumstance.
This is not aggravating if disguise did not facilitate
the commission of the crime or not taken
advantage of offender in the course of the
assault.

If craft, fraud or disguise was to insure the commission of


the crime, then they are absorbed by treachery.

ABUSE OF SUPERIOR STRENGTH OR MEANS

Treachery
This exist when the offender commits any of the
crimes against the person, employing means,
methods or forms in the execution thereof which
tend to directly and specially to insure its
execution, without risk to himself arising from the
defense which the offended party might make.

Preconditions of Treachery:

Abuse of Superior strength


This where the offenders intentionally and
purposely employ excessive force out of
proportion to the means of defense available to
the offended party.
There must be a notorious inequality of forces
between the victim and the aggressor.

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1. Insure that the offended party at the time of the


attack was not in a position to put up any
defense, not even token defense.
2. The means, manner and form were consciously
and deliberately chosen that there will be no risk
of the offender from the defense of the victim
might offer.
The law requires in treachery that the attack must be
intended to facilitate the perpetration of the killing without

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risk to the offender from a defense that the other party


might offer. The attack must be intended to facilitate the
perpetration of the crime without risk of the offender from
the defense that the victim might offer.
Essence of Treachery
Its essence lies on the swiftness and the
unexpectedness of the attack upon the unsuspecting
and unarmed victim, who does not give the slightest
provocation.
Treachery must be present in the inception of the
attack or if it is not found in the beginning of the attack,
there has to be an interruption somewhere.
Treachery NOT Appreciated
There is no treachery if that attack is an impulse of the
accused or when the killing is due to passion or when
the accused did not make any preparation to kill the
deceased so as to insure the commission of the crime.
This is inherent in parricide.

cannot be presumed but must be proven by clear and


convincing evidence, as conclusively as the killing itself.
Nature of Treachery
It is a special aggravating circumstance in the sense
that it applies only to crimes against persons.
It is a qualifying circumstance in murder

Since treachery is included in Article 14, it is a generic


aggravating circumstance for crimes other than killing. It
will only assume the form of a qualifying circumstance to
upgrade the killing to murder if it is alleged and proved.
Treachery absorbs both nighttime and taking advantage of
superior strength in the light of the circumstance of this
case.
Frontal Attack constitute Treachery
Generally, a frontal attack is not treachery.

People vs Padlan:

It was not shown that there was that swift and unexpected attack
of an unarmed victim, which is the essence of treachery. The
victims were not defenseless, since they too were armed.
XX had a bolo, while YY had a slingshot with darts. The sight of
the accused at a distance must have sufficiently warned them of
the accused and their intentions; that is why they tried to evade
them. Thus, an important condition has not been proved: that the

Except, when the attack although frontal is sudden and in


a manner that tends directly and especially to insure its
execution free form danger and without risk to oneself on
account of what the victim might make to defend himself,
there is treachery.
Proof Required if Treachery is to Qualify Homicide to
Murder

means of execution employed was deliberately and consciously


adopted so as to give the person attacked no opportunity to defend
himself or retaliate.

People vs. Acuram, G.R. 117954, April 27, 2000:

The shooting was done at the spur of the moment. The victim
had shouted damning curses at the driver and the passengers of
the jeepney. The shooting was instantaneous response to the
cursing. Treachery cannot be appreciated where the accused shot

the victim as a result of a rash and impetuous impulse rather than


from a deliberate act of the will.

It is a generic aggravating circumstance in less


serious physical injuries.

It must be proved as convincingly as the crime


itself (proof beyond reasonable doubt) for
treachery cannot be presumed. It cannot be
inferred just from the location of the wound
because the evidence should show the manner of
the attack and how the victim reacted thereto.

However if the victim is a child of tender age, there is


treachery even if the manner of the attack is not shown for
a child cannot put up a defense against an adult assailant.

Can treachery be present in a chance encounter?


No, where the meeting between the accused the victim was
casual and the act was done impulsively, there is no treachery
even if the attack was sudden and unexpected, even if the
victim was running away with his back against the accused.

IGNOMINY

Treachery cannot be presumed from the mere suddenness


of the attack or from the fact the victim was stabbed with
his back against the accused. The suddenness of the
attack does not by itself, sufficient to support alevosia even
if the purpose was to kill so long as the decision was made
at all of a sudden and the victims hapless position was
accidental.
May treachery be appreciated even if the victim was warned
of the danger?
Yes, for what is decisive is that the execution of the attack
made it impossible for the victim to defend himself or retaliate.
When the manner of the attack is not shown, does the fact
that the wound is at the back show treachery?
No, the presence of treachery may not be simply assumed
from the mere fact that the fatal wounds were found at the
back of the deceased. In the absence of proof as to the
manner the victim was attacked, the killing could not be
considered as qualified treachery.
Where not particulars are known as to the manner the
aggression was made or how the act resulting to the death of
the victim began and developed, it could not be established
by mere suppositions that the accused perpetrated the killing
with treachery.

Ignominy
This circumstance pertains to the moral attribute,
which adds disgrace to the material injury caused
by the crime.
This produces more suffering on account of its
humiliating effects.

Ignominy relates to moral suffering whereas, cruelty refers


to physical suffering. Ignominy is exemplified by the adage
adding insult to the injury; cruelty is compared to rubbing
salt to the wound.

People vs. Diaz, October 1999:

Ignominy pertains to the moral order, which adds disgrace and


obloquy to the material injury caused by the crime. It was not
appreciated where the sexual assault was no done to put the
victim to shame before the killing.

Being as qualifying circumstance, treachery must be


proved as convincingly as the crime itself. Treachery

UNLAWFUL ENTRY/ BREAKING OF WALL

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suffering or outraged or scoffed at his persons


corpse.

(l)

Is the presence of multiple wounds on the victim per se


cruelty?
No, there is cruelty when the culprit delights in making his victim
suffer slowly and gradually, causing unnecessary moral and
physical pain in the consummation of the crime. The victim should
also still be alive when the cruel acts were done. The number of
wounds alone does not indicate cruely as it is essential to show
that these were inflicted unnecessarily while the victim was alive to
prolong his physical suffering.

Article 15: Alternative Circumstances

Unlawful Entry
When the entrance is through a way not intended
for that purpose since the opening must be used
to enter, not to escape.

It is inherent in the crimes of trespass and in robbery with


force upon things thus should no longer be aggravating per
Article 62, No. 2

Alternative Circumstances
(m) These are circumstances which must be taken into
consideration as aggravating or mitigating according
to the nature and effects of the crime and the other
conditions attending to its commission.
(n) They are the relationship, intoxication and the degree
of instruction and education of the offender.
(o) These circumstances are considered only when they
influenced the commission of the crime.

AID OF MINORS/ USE OF MOTOR VEHICLES

DISTINCT CIRCUMSTANCES:

The commission of crime with the aid of a minor under 15


years of age

The use of minor in the commission of the


offense shows the greater perversity of the
offender because he is educating the innocent in
committing an offense.
(g) Especially so in view of R.A. 9346 exempting 15 year
old and below from criminal liability.

When the nature of the circumstance has been proved,


they are no longer called alternative circumstances but are
denominated as aggravating or mitigating circumstances,
as the case may be.

The commission by means of motor vehicles, airships,


motorized water craft or similar means

(h) The use of motorized means of conveyance to commit the


crimes is penalized because they pose difficulty to the
authorities in apprehending them.
(i) This circumstance is considered when the motor vehicle
was purposely used to facilitate the commission of the
offense not when used to escape.

Alternative Circumstance of
Relationship
(p) This shall be taken into consideration when the
offended party is the spouse, ascendant, descendant,
legitimate, natural or adopted brother or sister, or
relative by affinity in the same degrees of the
offender.

CRUELTY

Article 264 of the RPC:


(q) If the injury is inflicted upon the father, mother or child,
other ascendants or descendants and spouse, the penalty
shall be one or two degrees higher.

What is required to attend the


commission of the cruel acts:
(j) For this to be appreciated as aggravating there must
be evidence showing that the cruel acts were done
while the victim was alive and the offender delighted
in the suffering of the victim.
(k) The test in appreciating cruelty is whether or not the
accused deliberately and sadistically augmented the
wrong by causing another wrong not necessary for its
commission or inhumanly increased the victims

(r)

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Except, when committed against the offenders child due to


excessive chastisement, in which case it is not aggravating.

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2.

(t) When the intoxication is habitual or intentional,


it shall be considered as an aggravating
circumstance.
Alternative Circumstance of Degree of Instruction or
Education:
(u) In this circumstance, whether to be considered as
aggravating or mitigating depends upon the nature of
the crime committed.
(v) It is not illiteracy alone but the lack of intelligence of
the offender that is considered.

Alternative Circumstance of
Intoxication
As a mitigating circumstance:
(s) The accuseds state of intoxication should be
proven or established by sufficient evidence. It
should be such an intoxication that would
diminish or impair the exercise of his will-power
or the capacity to know the injustice of his act.

Requisites for Intoxication to be Mitigating:

1.

The accused is not a habitual drinker and did not


take the alcoholic drink with the intention to
reinforce his resolve to commit the crime.
As an aggravating circumstance:

The accused has taken a quantity of alcoholic


beverage prior to the commission of the crime
sufficient to produce the effect of obfuscating
reason.

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Low degree of education or instruction may be mitigating


but is never aggravating. Conversely, high degree of
education may be aggravating but never mitigating.

~~~~~~~~~~~~~***** Nothing Follows*****~~~~~~~~~~~~~~~


You may encounter many defeats, but you must not be defeated. In fact, it may be necessary to encounter the defeats,
so you can know who you are, what you can rise from, how you can still come out of it.
Maya Angelou