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LIABILITY
JUSTIFYING CIRCUMSTANCES
Circumstances, which, if attending the commission of act, makes the act lawful,
it is justified and in accordance with law an therefore, the act is not a crime.
1.) ANYONE WHO ACTS IN DEFENSE OF HIS PERSON OR RIGHTS.
Self-defense only applies to crimes against persons.
3 Elements:
A.) Unlawful Aggression
Without this element, there could be no self defense.
If ether of the 2nd and 3rd elements is lacking, as long as there is unlawful ag
gression, it constitute an incomplete self-defense, which is a mitig. circumsta
nces.
Aggression is a physical attack which can cause injury or even death. So if t
here is no physical aggression (only verbal) there is no aggression to speak of.
2 kinds of aggression:
Lawful Aggression According to rules of court, the arresting officer can use su
ch force as may be reasonably necessary to effect the arrest, and because he can
use force in the process of effecting the arrest, the policeman may become an a
ggressor.
Unlawful Aggression Aggression can either be actual or threatened.Threatened agg
ression amounts to actual aggression , if threatened harm is imminent, or on pt.
of happening.Its in less 1 second, you are dead. Then that s the aggression we sp
eak of.
BAR:You are inside your house in the 2nd floor. Then B from below shouts at you,
challenging you to fight Wait there and I will kill you B was going to kill you
but to beat him to it you killed him first.Is the threatened harm imminent? Ta
ke note that B still has to go up.
No, threatening attitude is not equivalent to an actual aggression.
So it s a question of evidence, is there harm now or on the point of happening? I
s there death now or on the point of happening?
If answer is no, then, the threatened harm does not amount to unlawful aggressio
n. It is a future aggression. You have no right to act now simply because there
is a threat.
Suppose A attacked B & B landed on the ground sustaining many blows. Then A lef
t when A left, B stood up, chased A & attacked him B killed A. B claimed that t
he killing of a A is a self-defense since it was A who attacked him first.Is B e
ntitled to self-defense?
No, you could only act in self-defense while aggression is still going on or is
about to start.
However in another scenario,when V started to hit H, that constituted unlawful a
ggression, so when H shot V, he was justified in doing so as he was only acting
in self-defense.But the moment B run away, the danger to A s life & limb ceased.
Unlawful aggression ended.
Another illustration is when A tries to run with your wallet and in order to sto
p him from running away, you shoot him to death. Can you claim self defense?NO
self defense applies only if attack on one s property is coupled with attack on hi
s person like when A tried to get your money and when you tried to resist, A dre
w out his knife or that A entered your house and in getting your property, he tr
ied to kill you but you killed him first.
B) Reasonable Necessity of the means employed to prevent the aggression.
Maybe it is unreasonable to use a knife when somebody attack you with a first.Bu
t when 5 or 10 people attack you with their first; you use a knife against them,
that is reasonable.Or when the aggressor is Manny Pacquiao or Mike Tyson.
3.) DEFENSE OF STRANGERS PROVIDED THAT 1ST AND 2ND ELEMENTS OF SELF DEFENSE ARE
PRESENT AND THAT PERSON DEFENDING BE NOT INDUCE BY REVENGE, RESENTMENT OR OTHER
EVIL MOTIVE.
3rd element you were motivated by humanitarian sentiment and you really did it
to defend the stranger.
Ex: I am looking for my enemy since I want to kill him and when I saw him, he w
as attacking somebody, so I entered the scene and killed him.No defense of stran
ger.
In fulfillment of duty:
Use of force may be improper if person to be arrested is peacefully surrendering
.
When D tried to apprehend A, A fought back with a sharpened bamboo pole. D was
able to evade the attack and A turned around and run away. D, a policeman, chas
es A but A continued to run away with a bamboo pole. So D had to shoot him. D
was accused of homicide.- D is not liable since D acted in fulfillment of his du
ty to arrest A.
Policeman is going to arrest you, but you don t give up, you turn your back and ru
n away. The policeman has no choice but to kill you.- Self defense is not anymo
re existing, but he can still rely on fulfillment of duty.
PAR. 5 is the Law on self defense of property (Personal or real)--(Doctrine of s
elf-help) Art. 429 Civil code,You have right to drive out people who is forcibly
occupying your landThe use of force must be reasonable.
A pick pocket grabbed your watch. In order to prevent him from escaping, you dr
ew your gun and shot him in the leg. Is it reasonable to immobilize him? YES
But if you shot him in the body and killed him. Cannot invoke self defense si
nce no attack on your person. It is not reasonable based on the principle th
at no one is justified to take human life simply because of a property.
In exercise of an office:
Ex: executioner of bilibid prison
Execution is at 3 p.m do not execute him at any other time.
6.) ANY PERSON WHO ACTS IN OBEDIENCE TO AN ORDER ISSUED BY A SUPERIOR FOR SO
ME LAWFUL PURPOSE
--even if order is illegal if it is patently legal and the subordinate is not
aware of its illegality then latter is not liable since mistake of fact com
mitted in good faith.
EXEMPTING CIRCUMSTANCE
At the time of commission, he acted without intelligence/freedom/intent or negli
gence. And therefore, there is no voluntariness.
6. ANY PERSON WHO ACTS UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF AN EQUAL/G
REATER INJURY.
The basis of par. 5 & 6 is the absence of freedom of action. There is intelligen
ce, there is intent but there is no freedom. You were literally compelled agains
t your will to count the felony.
Distinction:
1. Uncontrollable fear-manner by which he was compelled to
commit a crime was not through force,but through threat or
intimidation.
2. Irresistible Fear-compelled to commit a crime, though use
of physical force, like torture.
Demon possession is not covered. It may be insanity.
US vs. Caballeros
Upon hearing the shooting, the poor farmer ran towards the
scene of the crime. However, he was seen by the leader of the
band. They struck him with the butts of their rifles and
compelled him to bury the corpses. He was caught by the
authorities and was charge as an accessory in the murder.B is not
liable since he acted under compulsion of an irresistible
force.
In order to avail of 5 & 6:
1.NO POSSIBILITY OF DEFENDING HIMSELF FROM
THE THREAT
If threaten you with the gun, you have no obligation to fight back just to avoid
committing the crime.
2. NO POSSIBILITY OF ESCAPING FROM THE
THREAT
If there s a chance, so you are not covered.
3. THREAT MUST BE OF EQUAL AND GREATER
INJURY
It must be clear, concrete and not speculated. The threatened harm must be real
(not imaginary)
7. ANY PERSON WHO FAILS TO PERFORM AN ACT REQUIRED BY LAW WHEN PREVENTED BY SOM
E LAWFUL AND INSUPERABLE CAUSE.
Accused is a Priest. B, in the confessional, confessed to him about BEING a co-
conspirator in the crime of treason. If priest do not report the matter, he viol
ates the law. If he reports, he violates seal of confession.Defense of Priest if
he do not report, is that he was prevented by a lawful cause (secrecy of confes
sion) from revealing the matter.
Suppose P, a policeman, caught A without warrant since A was committing a crime.
P is supposed to bring A to town and to formally charge him in court. But it ta
kes 3 to 4 days to reach the town from the barangay. So necessarily, P detained
A for more than 36 hrs. By the time he reached the town, it was 48 hrs. later. S
o P was charged under Art. 125.What is P is defense? Par. 7
MITIGATING CIRCUMSTANCES
1.) THOSE MENTIONED IN PRECEDING CHAPTER, WHEN ALL NECESSARY REQUISITE ARE NOT A
TTENDANT (TO JUSTIFY OR EXEMPT)
Incomplete self defense, defense of relative, state of necessity, incomplete acc
ident, incomplete irresistible force, incomplete uncontrollable fear.
2.) OFFENDER IS UNDER 18 OR OVER 70.
Over 9 15 Exempting
16 to 17 Exempting if acted without discernment
Mitigating if acted with discernment
18 to 70 Mitigating
Over70 Mitigating
Baptismal certificate is not competent to prove a persons age since it is not re
cognized as an official document. What is competent is the official birth certi
ficate.
Pp. v. Tisnio.
The answer to the question if whether or not A s lone testimony as to his minority
would be sufficient is YES.
Anyway, the prosecution will present its own evidence and it is there that we wi
ll know if A is telling the truth. But if his testimony is unchallenged, then,
it would suffice.
4.) HAVING ACTED UPON AN IMPULSE SO POWERFUL OF NATURALLY TO HAVE PRODUCED PASSI
ON AND OBFUSCATION.
Passion and obfuscation must arise from lawful sentiments.
a.) A, married man, was having affair with C, A killed C since C want to part wa
ys with A. A defense that he was obsfucated. Defense untenable since passion aro
se from an illicit relationship.
b.) Passion must not be generated by revenge.
c.) Passion must not be libido
5.) SUFFICIENT PROVOCATION OR THREAT ON PART OF OFFENDED PARTY PRECEDED THE ACT.
Sufficient provocation
B attacked A with a piece of wood A defended himself by shooting B. when B real
ized that he was slightly wounded, he turned his back and ran away, a chased ,
overtook him and killed him.A is not entitled to justifying circumstances of sel
f defense since no unlawful aggression is present since B ran away, A cannot cla
im benefit of incomplete self defense, he may avail of mitig. Circum. Sufficient
provocation
Supose, when A was chasing B, B was force to fight back and in the process B kil
led A, can B claim self defense? No, since reason why A attacked due to the suff
icient provocation given by B earlier.B may avail and mit. Circu. Of incomplete
self defense. since there was unlawful aggression on part of A. Also, means B u
sed to defend himself was reasonable, but he gave sufficient provocation.
Sufficient Threat
When threatened act is about to happen, that is equivalent to actual aggression.
That is a justifying circumstance.
But if threat is in the future, then it is not equivalent to unlawful aggressi
on, mitigating.
Illustration:
1.)Mitigating A said you watch out days, I ll kill you one of these days, so B kill
ed A.
2.)Justifying (invoke self-defense)--A told B, I ll kill you now and drew his gun.
When B realized that, B drew out and shot his gun and killed A.
Difference of immediate in Par 4 and Par 5.
4 immediate means no gap between the threat or provocation and crime.
5 immediate is not really literal, the immediate here is Proximate
6.) REVENGE
Act was committed in vindication of a grave offense to:
The one committing the felony
His spouse
Ascendants
Descendants
Legitimate, natural or adopted bros. and sisters.
Relatives by affinity with in same degree (Consanguinity not included)
Immediate in here means proximate. Meaning, the revenge is not done immediately
but after a lapse of time, what is important is that there is a relation of caus
e and effect between them.
Ex: X is killed and that after funeral of X, his son A, looks for killer, after
1 month, A found killer and kill him.
US vs.AMPAR:There was a party. A, who is an old man went to B who was serving le
chon. B played a joke on A in presence of guest and called him Roast Pig .A left,
got an ax and killed B.A acted in vindication of a grave offense committed again
st him. It was just a joke but considering his age and occasion, it was somethi
ng serious.
7.) OFFENDER HAD TO VOLUNTARILY SURRENDERED HIMSELF TO A PERSON IN AUTHORITY OR
HIS AGENT
VOLUNTARILY CONFESSED HIS GUILT BEFORE THE COURT PRIOR TO PRESENTATION OF EVIDEN
CE FOR PROSECUTION
(Most common mitigating circumstance invoked in court).
Voluntary Surrender
1.Surrender to person in authority (Art. 153), clerk of City hall is not person
in authority(2006 notes).
2.To be voluntary it must be spontaneous and should show intent to submit himsel
f unconditionally--
1.) Due to that he acknowledge his guilt or
2.) Because he wishes to save them (police and guard) the trouble and expenses t
o be necessary increased for his search and captures.
Not Voluntary Surrender
When A is supposed to surrender to ensure his safety his arrest being inevitabl
e, the surrender is not spontaneous hence not voluntary.
It took 2 years and 5 months after issuance of warrant of arrest before he surre
nder.
Provincial Commander announced that he would issue a shoot to kill order against
A. So A was persuaded to surrender .Fact remains that he was not arrested and h
e presented himself to provincial commander.
8.) OFFENDER IS DEAF AND DUMB, BLIND, OTHERWISE SUFFERING SOME PHYSICAL DEFECT W
HICH THUS RESTRICTS HIS MEANS OF ACTION, DEFENSE OR COMMUNICATION WITH HIS FELLO
W BEINGS.
Any physical defect by accused is automatically mitigating even if it does not h
ave anything to do with the crime.
9.) SUCH ILLNESS OF OFFENDER AS WOULD DIMINISH THE EXERCISE OF THE WILL POWER O
F OFFENDER WITHOUT HOWEVER DEPRIVING HIM OF CONSCIOUSNESS OF HIS ACTS.
This is a mitigating circumstance which you should correlate with 12 (1) on insa
nity.
2 test:
1.Test of cognition complete deprivation of intelligence in committing criminal
act (Right or wrong test).
2.Test of volition Total deprivation of freedom of will, irritable impulse test,
recognized test
10.) ANY OTHER CIRCUMSTANCE OF A SIMILAR NATURE ANALOGOUS TO THOSE MENTIONED.
Ex:
-Old man, around 65, but he could hardly waltk. The SC gave to his benefits the
circumstances analogous to Above 70
-Creditor who could not collect from the debtor. Each time he would go to debto
r to collect the account, the debtor would always tell him to come back the next
day. Creditor, got tired and mauled the latter.The feeling of creditor is same
with passion so mitigated.
-A thief who stole property. After 2 days, he was filled with remorse.Desistanc
e was too late, returning the property cannot be desistance same to voluntary su
rrender.
Distinctions between ordinary mitigating circumstances and privileged mitigating
circumstances
As to effect
Ordinary mitigating circumstances, if not offset, will operate to reduce the pen
alty to the minimum period, provided the penalty is a divisible one.
Privilege mitigating circumstances operate to reduce the penalty by one or two d
egrees, depending upon what the law provides.
You can easily detect whether the circumstance which mitigates the liability of
the offender is privilege or not, that is, if the penalty is reduced by degree.
If the penalty is lowered by one or two degrees, it is privilege; therefore, ev
en if there is an aggravating circumstance, do not compensate because that would
be violating the rules.The circumstances under Article 13 are generally ordinar
y mitigating, except in paragraph 1, where it is privilege, Article 69 would app
ly. So also, paragraph 2, in cases where the offender is below 18 years old, su
ch an offender if criminally liable is entitled to the lowering of penalty by on
e degree. But if over nine but under 15, he is entitled to a discretionary pena
lty of at least two degrees lower. When there is a lowering of penalties by deg
rees, it is a privilege. It cannot be offset by an aggravating circumstance.
In bar problems, when you are given indeterminate sentences, these articles are
very important.When the circumstance which mitigates criminal liability is privi
leged, you give effect to it above all considerations. In other words, before y
ou go into any circumstance, lower first the penalty to the proper degree. That
is precisely why this circumstance is considered privileged. It takes preferen
ce over all other circumstances.
AGGRAVATING CIRCUMSTANCES
Circumstances which if attending the commission of a felony, would tend to i
ncrease the prescribed penalty to the max.pd. of the prescribed penalty.
1.Taking advantage of public position
a qualifying or special aggravating that shall not be offset or compensated by a
mitigating circumstance. If not alleged in the information, however, but prove
n during the trial, it is only appreciated as a generic aggravating circumstance
.
The mitigating circumstance referred to in the amendment as not affecting the im
position of the penalty in the maximum are only ordinary mitigating circumstance
s. Privileged mitigating circumstances always lower the penalty accordingly.
2.Crime committed in contempt of or w/ insult to public authoritie
not only confined to persons in authorities but also to agents of persons in a
uthority (ex: PNP superintendent)
3Disrespect due to rank, age, sex or it is committed in the dwelling of the
offended party and latter did not gave provocation
Rank ,Age and Sex(treated as one)
Aggravating only in crimes against persons and honor, not against property like
Robbery with homicide (People v. Ga, 156 SCRA 790).
Teachers, professors, supervisors of public and duly recognized private schools,
colleges and universities, as well as lawyers are persons in authority only for
purposes of direct assault and simple resistance, but not for purposes of aggra
vating circumstances in paragraph 2, Article 14. (People v. Taoan, 182 SCRA 601)
.
Dwelling
Grule: Dwelling is aggravating when it is the dwelling of the offended party.
It should also not be the dwelling of the offender. If the dwelling is both that
of the offended party and the offender, dwelling is not aggravating.
A garage is part of the dwelling when connected with an interior passage to the
house proper. If not connected, it is not considered part of the dwelling.
Dwelling need not be owned by the offended party. It is enough that he used the
place for his peace of mind, rest, comfort and privacy,provided that the offende
d party is considered a member of the family who owns the dwelling and equally e
njoys peace of mind, privacy and comfort.
The crime of adultery was committed. Dwelling was considered aggravating on the
part of the paramour. The paramour is not a resident of the same dwelling. Howev
er, if the paramour was also residing on the same dwelling, dwelling is not cons
idered aggravating.
The term dwelling includes all the dependencies necessary for a house or for rest
or for comfort or a place of privacy. If the place used is on the second floor,
the stairs which are used to reach the second floor is considered a dwelling bec
ause the second floor cannot be enjoyed without the stairs. If the offended part
y was assaulted while on the stairs, dwelling is already aggravating. For this r
eason, considering that any dependency necessary for the enjoyment of a place of
abode is considered a dwelling.
Exceptions to the rule that it should be the dwelling of the offended party:
The wife left the conjugal home and went to the house of her sister bringing her
personal belongings with her. The sister accommodated the wife in the formers
home. The husband went to the house of the sister-in-law and tried to persuade t
he wife to come back to the conjugal home but the wife refused because she is mo
re at peace in her sister's house than in the conjugal abode. It was held that d
welling was aggravating although it is not owned by the offended party because t
he offended party is considered as a member of the family who owns the dwelling
and that dwelling is where she enjoyed privacy. Peace of mind and comfort.
Even a room in a hotel if rented as a dwelling, like what the salesmen do when t
hey are assigned in the provinces and they rent rooms, is considered a dwelling.
A room in a hotel or motel will be considered dwelling if it is used with a ce
rtain degree of permanence, where the offended party seeks privacy, rest, peace
of mind and comfort.
If a young man brought a woman in a motel for a short time and there he was kill
ed, dwelling is not aggravating.A man was killed in the house of his common law
wife. Dwelling is aggravating in this case because the house was provided by the
man.if a man has so many wives and he gave them a places of their own, each one
is his own dwelling. If he is killed there, dwelling will be aggravating, provi
ded that he also stays there once in a while. When he is only a visitor there, d
welling is not aggravating.
In the provinces where the comfort rooms are usually far from the house proper,
if the offended party while answering the call of nature is killed, then dwellin
g is aggravating because the comfort room is a necessary dependency of the house
proper.
A person while in the room of his house, maintaining the room, was shot. Dwelli
ng is aggravating.
If the offender entered the house and the offended party jumped out of the house
, even if the offender caught up with him already out of the house, dwelling is
still aggravating. The reason is because he could not have left his dwelling wer
e it not for the fact that the attacker entered the house.
If the offended party was inside the house and the offender was outside and the
latter shot the former inside the house while he was still outside. Dwelling is
still aggravating even if the offender did not enter the house.
One-half of the house is used as a store and the other half is used for dwelling
but there is only one entrance. If the dwelling portion is attacked, dwelling i
s not aggravating because whenever a store is open for business, it is a public
place and as such is not capable of being the subject of trespass. If the dwell
ing portion is attacked where even if the store is open, there is another separa
te entrance to the portion used for dwelling, the circumstance is aggravating.
However, in case the store is closed, dwelling is aggravating since here, the st
ore is not a public place as in the first case.
Balcony is part of the dwelling because it is appurtenant to the house
Dwelling is aggravating in robbery with homicide because the crime can be commit
ted without necessarily transgressing the sanctity of the home (People v. De Los
Reyes, decided October 22, 1992).
Nighttime
What if the crime started during the daytime and continued all the way to nightt
ime? This is not aggravating.
As a rule, the crime must begin and end during the nighttime. Crime began at day
and ended at night, as well as crime began at night and ended at day is not agg
ravated by the circumstance of nighttime. Darkness is what makes this circumstan
ce aggravating.
One evening, a crime was committed near the lamp post. The Supreme Court held
that there is no aggravating circumstance of nighttime. Even if the crime was co
mmitted at night, but there was light, hence, darkness was not present, no aggra
vating circumstance just by the fact of nighttime alone.
Even if there was darkness but the nighttime was only an incident of a chance me
eting, there is no aggravating circumstance here.
Nocturnity is the period of time after sunset to sunrise, from dusk to dawn.
11.offender has been previously punished (felony is not same title Reiteracion or
Habituality)
In habitual delinquency
(1) At least three convictions are required.
(1) The crimes are limited and specified to: (a) serious physical injuries, (b)
less serious physical injuries, (c) robbery, (d) theft, (e) estafa or swindling
and (f) falsification.
(3) There is a time limit of not more than 10 years between every conviction
s computed from the first conviction or release from punishment thereof to convi
ction computed from the second conviction or release therefrom to the third conv
iction and so on . . .
(4) Habitual delinquency is a special aggravating circumstance, hence it can
not be offset by any mitigating circumstance. Aside from the penalty prescribed
by law for the crime committed, an additional penalty shall be imposed depending
upon whether it is already the third conviction, the fourth, the fifth and so o
n . . .
(5) The circumstance must be alleged in the information; otherwise the court
cannot acquire jurisdiction to impose additional penalty.
4blue 95 notes: Habitual delinquency, being a special or specific aggravating ci
rcumstance must be alleged in the information. If it is not alleged in the infor
mation and in the course of the trial, the prosecution tried to prove that the o
ffender is a habitual delinquent over the objection of the accused, the court ha
s no jurisdiction to consider the offender a habitual delinquent. Even if the ac
cused is in fact a habitual delinquent but it is not alleged in the information,
the prosecution when introducing evidence was objected to, the court cannot adm
it the evidence presented to prove habitual delinquency over the objection of th
e accused.
Generally, the procedure you know that when the prosecutor alleges habitual deli
nquency, it must specify the crimes committed, the dates when they were committe
d, the court which tried the case, the date when the accused was convicted or di
scharged. If these are not alleged, the information is defective.
even though the details of habitual delinquency was not set forth in the informa
tion, as long as there is an allegation there that the accused is a habitual del
inquent, that is enough to confer jurisdiction upon the court to consider habitu
al delinquency. In the absence of the details set forth in the information, the
accused has the right to avail of the so-called bill of particulars. Even in a c
riminal case, the accused may file a motion for bill of particulars. If the accu
sed fails to file such, he is deemed to have waived the required particulars and
so the court can admit evidence of the habitual delinquency, even though over a
nd above the objection of the defense.
If the offender had committed and was convicted of each of the crimes under each
category so that no two crimes fall under the same title of the Revised Penal C
ode, you have a situation where the offender is a habitual delinquent but not a
recidivist because no two crimes fall under the same title of the Code.
When the offender is a recidivist and at the same time a habitual delinquent, th
e penalty for the crime for which he will be convicted will be increased to the
maximum period unless offset by a mitigating circumstance. After determining the
correct penalty for the last crime committed, an added penalty will be imposed
in accordance with Article 62.
12. Accused is a recidivist (same title )
In recidivism
(1) Two convictions are enough.
(2) The crimes are not specified; it is enough that they may be embraced under t
he same title of the Revised Penal Code.
(3) There is no time limit between the first conviction and the subsequent convi
ction. Recidivism is imprescriptible.
(4) It is a generic aggravating circumstance which can be offset by an ordinary
mitigating circumstance. If not offset, it would only increase the penalty presc
ribed by law for the crime committed to its maximum period.
(5) The circumstance need not be alleged in the information. (recidivism is stil
l considered even if not allege)
In recidivism, the emphasis is on the fact that the offender was previously conv
icted by final judgement of a felony and subsequently found guilty of another fe
lony embraced in the same title of the Revised Penal Code. when a person commits
a crime under different titles, no aggravating circumstance is present. It is i
mportant that the conviction which came earlier must refer to the crime committe
d earlier than the subsequent conviction.
In recidivism, the crimes committed should be felonies. Recidivism cannot be had
if the crime committed is a violation of a special law.
Pardon does not erase recidivism, even if it is absolute because only excuses th
e service of the penalty, but not the conviction.
If the offender has already served his sentence and he was extended an absolute
pardon, the pardon shall erase the conviction including recidivism because there
is no more penalty so it shall be understood as referring to the conviction or
the effects of the crime.
BAR:In 1980, A committed robbery. While the case was being tried, he committed t
heft in 1983. He was found guilty and was convicted of theft also in 1983. The c
onviction became final because he did not appeal anymore and the trial for his e
arlier crime which was robbery ended in 1984 where he was also convicted. He als
o did not appeal this decision. Is the accused a recidivist? The subsequent conv
iction must refer to a felony committed later in order to constitute recidivism.
The reason for this is as the time the first crime was committed, there was no
other crime of which he was convicted so he cannot be regarded as a repeater.
BAR:In 1975, the offender committed robbery. While the same was being tried in 1
978, he committed theft. In 1980, he was convicted of theft and he did not appea
l this decision. The trial for robbery ended in 1981. May the judge in imposing
the penalty for robbery consider the accused a recidivist considering that he w
as already convicted in 1980 for the crime of theft which is under the same titl
e of the Revised Penal Code as that of robbery?No, because the robbery which was
committed earlier would be decided later. It must be the other way around. Thi
s is because in 1975 when he committed the robbery, there was no crime committed
yet. Thus, even though in imposing the penalty for the robbery, there was alrea
dy a previous conviction, if that conviction is subsequent to the commission of
the robbery, he is not a recidivist. If you will interpret the definition of rec
idivism, this would seem to be covered but that is not so.
Quasi-recidivism
This is found in Article 160. The offender must already be convicted by final ju
dgement and therefore to have served the penalty already, but even at this stage
, he committed a felony before beginning to serve sentence or while serving sent
ence.
Offender had already been convicted by final judgement. Sentence was promulgated
and he was under custody in Muntinlupa. While he was in Muntinlupa, he escaped
from his guard and in the course of his escape, he killed someone. The killing w
as committed before serving sentence but convicted by final judgement. He become
s a quasi-recidivist because the crime committed was a felony.
The offender was convicted of homicide. While serving sentence in Muntinlupa, he
was found smoking marijuana. He was prosecuted for illegal use of prohibited dr
ugs and was convicted. Is he a quasi-recidivist? No, because the crime committed
while serving sentence is not a felony.
Reverse the situation. Assume that the offender was found guilty of illegal use
of prohibited drugs. While he was serving sentence, he got involved in a quarrel
and killed a fellow inmate. Is he a quasi-recidivist? Yes, because while servin
g sentence, he committed a felony.
The emphasis is on the nature of the crime committed while serving sentence or b
efore serving sentence. It should not be a violation of a special law.
Quasi-recidivism is a special aggravating circumstance. This cannot be offset by
any mitigating circumstance and the imposition of the penalty in the maximum pe
riod cannot be lowered by any ordinary mitigating circumstance. When there is a
privileged mitigating circumstance, the penalty prescribed by law for the crime
committed shall be lowered by 1 or 2 degrees, as the case may be, but then it sh
all be imposed in the maximum period if the offender is a quasi-recidivist.
Reiteracion
the offender has already tasted the bitterness of the punishment. This is the ph
ilosophy on which the circumstance becomes aggravating.
It is necessary in order that there be reiteracion that the offender has already
served out the penalty. If the offender had not yet served out his penalty, for
get about reiteracion. That is why if the offender committed a subsequent felony
which carries with it a penalty lighter than what he had served, reiteracion is
not aggravating because the law considers that somehow, this fellow was correct
ed because instead of committing a serious crime, he committed a lesser one. If
he committed another lesser one, then he becomes a repeater.
So, in reiteracion, the penalty attached to the crime subsequently committed sho
uld be higher or at least equal to the penalty that he has already served.
You will only consider the penalty in reiteracion if there is already a second c
onviction. When there is a third conviction, you disregard whatever penalty for
the subsequent crimes committed. Even if the penalty for the subsequent crimes c
ommitted are lighter than the ones already served, since there are already two o
f them subsequently, the offender is already a repeater.
13.Evident premeditation
For evident premeditation to be aggravating, the following conditions must concu
r:
(1)The time when the accused determined to commit the crime;
(2)An act manifestly indicating that the accused has clung to his determination;
(3)Sufficient lapse of time between such determination and execution, to allow h
im to reflect upon the consequences of his act.
Evident premeditation shall not be considered when the crime refers to a differe
nt person other than the person premeditated against (ERROR IN PERSONAE).
But if the person intends to shot amock (anyone he sees on sight), then that s ev
ident premeditation .
There are some crimes which cannot be aggravated by evident premeditation becaus
e they require some planning before they can be committed. Evident premeditatio
n is part of the crime like kidnapping for ransom, robbery with force upon thing
s where there is entry into the premises of the offended party, and estafa throu
gh false pretenses where the offender employs insidious means which cannot happe
n accidentally.
A, on Monday, thought of killing B on Friday. A knew that B is coming home only
on Friday so A decided to kill B on Friday evening when he comes home. On Thursd
ay, A met B and killed him. Is there evident premeditation? None but there is
treachery as the attack was sudden.
Can there be evident premeditation when the killing is accidental? No. In eviden
t premeditation, there must be a clear reflection on the part of the offender.
A and B quarreled. However A had no chance to fight with B because A is much sma
ller than B. A thought of killing B but then he cannot just attack B because of
the latter's size. So, A thought of committing a crime at nighttime with the cov
er of darkness. A positioned himself in the darkest part of the street where B p
asses on his way home. One evening, A waited for B and stabbed B. However, B pul
led a knife as well and stabbed A also. A was wounded but not mortal so he manag
ed to run away. B was able to walk a few steps before he fell and died. What cri
me was committed?
The crime is only homicide because the aggravating circumstance is only nocturni
ty and nocturnity is not a qualifying circumstance. The reason why treachery can
not be considered as present here is because the offended party was able to put
up a defense and that negates treachery.
In the example where A pretended to befriend B and invited him to celebrate thei
r friendship, if B despite intoxication was able to put up some fight against A
but eventually, B died, then the attendant circumstance is no longer treachery b
ut means employed to weaken the defense.
In the same manner, if the offender avails of the services of men and in the co
mmission of the crime, they took advantage of superior strength but somehow, the
offended party fought back, the crime is still murder if the victim is killed.
Although the qualifying circumstance is abuse of superior strength and not treac
hery, which is also a qualifying circumstance of murder under Article 248.
Treachery is out when the attack was merely incidental or accidental because in
the definition of treachery, the implication is that the offender had consciousl
y and deliberately adopted the method, means and form used or employed by him. S
o, if A and B casually met and there and then A stabbed B, although stabbing may
be sudden since A was not shown to have the intention of killing B, treachery c
annot be considered present.
There must be evidenced on how the crime was committed. It is not enough to sho
w that the victim sustained treacherous wound. Example: A had a gunshot wound a
t the back of his head. The SC ruled this is only homicide because treachery mu
st be proven. It must be shown that the victim was totally defenseless.
Suddenness of the attack does not by itself constitute treachery in the absence
of evidence that the manner of the attack was consciously adopted by the offende
r to render the offended party defenseless (People v. Ilagan, 191 SCRA 643).
But where children of tender years were killed, being one year old and 12 years
old, the killing is murder even if the manner of attack was not shown (People v.
Gahon, decided on April 30, 1991).
Treachery not appreciated where quarrel and heated discussion preceded a killing
, because the victim would be put on guard (People v. Gupo). But although a qua
rrel preceded the killing where the victim was atop a coconut tree, treachery wa
s considered as the victim was not in a position to defend himself (People v. To
ribio).
19.Unlawful entry
Unlawful entry is inherent in the crime of robbery with force upon things but ag
gravating in the crime of robbery with violence against or intimidation of perso
ns.
X enters house through the door ,commit the crime and jump out of window.No Unla
wful entry since the law talks about entry and not exit,
1.Relationship;
2.Intoxication;
3.Degree of instruction; and
4.Education.
Use only the term alternative circumstance for as long as the particular circums
tance is not involved in any case or problem. The moment it is given in a probl
em, do not use alternative circumstance, refer to it as aggravating or mitigatin
g depending on whether the same is considered as such or the other. If relation
ship is aggravating, refer to it as aggravating. If mitigating, then refer to i
t as such.
Except for the circumstance of intoxication, the other circumstances in Article
15 may not be taken into account at all when the circumstance has no bearing on
the crime committed. So the court will not consider this as aggravating or miti
gating simply because the circumstance has no relevance to the crime that was co
mmitted.
It is only the circumstance of intoxication which if not mitigating, is automati
cally aggravating. But the other circumstances, even if they are present, but i
f they do not influence the crime, the court will not consider it at all. Relat
ionship may not be considered at all, especially if it is not inherent in the co
mmission of the crime. Degree of instruction also will not be considered if the
crime is something which does not require an educated person to understand.
Relationship
Relationship is not simply mitigating or aggravating. There are specific circum
stances where relationship is exempting. Among such circumstances are:
(1) In the case of an accessory who is related to the principal within the relat
ionship prescribed in Article 20;
(2) Also in Article 247, a spouse does not incur criminal liability for a crime
of less serious physical injuries or serious physical injuries if this was infli
cted after having surprised the offended spouse or paramour or mistress committi
ng actual sexual intercourse.
(3) Those commonly given in Article 332 when the crime of theft, malicious misch
ief and swindling or estafa. There is no criminal liability but only civil liab
ility if the offender is related to the offended party as spouse, ascendant, or
descendant or if the offender is a brother or sister or brother in law or sister
in law of the offended party and they are living together. Exempting circumsta
nce is the relationship. This is an absolutory cause.
Sometimes, relationship is a qualifying and not only a generic aggravating circ
umstance. In the crime of qualified seduction, the offended woman must be a vir
gin and less than 18 yrs old. But if the offender is a brother of the offended
woman or an ascendant of the offended woman, regardless of whether the woman is
of bad reputation, even if the woman is 60 years old or more, crime is qualified
seduction. In such a case, relationship is qualifying.
Intoxication
This circumstance is ipso facto mitigating, so that if the prosecution wants to
deny the offender the benefit of this mitigation, they should prove that it is h
abitual and that it is intentional. The moment it is shown to be habitual or in
tentional to the commission of the crime, the same will immediately aggravate, r
egardless of the crime committed.
So the mere fact that the offender has taken one or more cases of beer of itself
does not warrant a conclusion that intoxication is mitigating. There must be i
ndication that because of the alcoholic intake of the offender, he is suffering
from diminished self control. There is diminished voluntariness insofar as his
intelligence or freedom of action is concerned. It is not the quantity of alcoh
olic drink. Rather it is the effect of the alcohol upon the offender which shal
l be the basis of the mitigating circumstance.
In a case, there were two laborers who were the best of friends. Since it was p
ayday, they decided to have some good time and ordered beer. When they drank tw
o cases of beer they became more talkative until they engaged in an argument. O
ne pulled out a knife and stabbed the other. When arraigned he invoked intoxica
tion as a mitigating circumstance. Intoxication does not simply mean that the o
ffender has partaken of so much alcoholic beverages. The intoxication in law re
quires that because of the quality of the alcoholic drink taken, the offender ha
d practically lost self control. So although the offender may have partaken of
two cases of beer, but after stabbing the victim he hailed a tricycle and even i
nstructed the driver to the place where he is sleeping and the tricycle could no
t reach his house and so he has to alight and walk to his house, then there is n
o diminished self control. The Supreme Court did not give the mitigating circum
stance because of the number of wounds inflicted upon the victim. There were 11
stab wounds and this, the Supreme Court said, is incompatible with the idea tha
t the offender is already suffering from diminished self control.
In aggravating circumstances
1.The circumstance can be offset by an ordinary mitigating circumstance;
2.No need to allege this circumstance in the information, as long as it is prove
n during trial. If it is proved during trial, the court would consider the same
in imposing the penalty;
3.It is not an ingredient of a crime. It only affects the penalty to be imposed
but the crime remains the same.
In qualifying circumstance
1.The circumstance affects the nature of the crime itself such that the offender
shall be liable for a more serious crime. The circumstance is actually an ingre
dient of the crime;
2.Being an ingredient of the crime, it cannot be offset by any mitigating circum
stance;
3.Qualifying circumstances to be appreciated as such must be specifically allege
d in the complaint or information. If not alleged but proven during the trial, i
t will be considered only as generic aggravating circumstance. If this happens,
they are susceptible of being offset by a mitigating circumstance(2007 REPEALED)
An aggravating circumstance is qualifying when it is an ingredient of the crime.
Therefore it is included in the provision of law defining the crime. If it is n
ot so included, it is not qualifying.
In Article 248, in the crime of murder, the law specifically mentions thereunder
several circumstances which are aggravating under Article 14. All of these will
qualify a killing from homicide to murder; however, you understand that only on
e is qualifying.
If let us say, the accused was charged with murder. Three of these circumstance
s: treachery, evident premeditation and act was done in consideration of a price
, reward or promise were alleged as aggravating. Only one of these is qualifying
. If any one of the three circumstances was proven, the crime was already murde
r. If the other two are also proven, even if they are alleged in the informatio
n or complaint, they are only to be taken as generic. If there is any mitigatin
g circumstance in favor of the offender, the two other circumstances which are o
therwise qualifying could be offset by the mitigating, provided the mitigating c
ircumstance is not a privileged mitigating circumstance. Therefore, if there a
re three of the qualifying circumstances alleged in the complaint or information
, only one will qualify the crime. The others will merely be considered as gener
ic. Thus, if there is any ordinary mitigating circumstance in favor of the accus
ed, such will be wiped out by these circumstances, although initially they are c
onsidered as qualifying. Do not hesitate to offset on the principle that a quali
fying circumstance cannot be offset by an ordinary mitigating circumstance becau
se only one is necessary.
Even if any of the qualifying circumstances under Article 248 on murder was pro
ven, if that is not the circumstance alleged in the information, it cannot quali
fy the crime. Let us say, what was alleged in the information was treachery. D
uring the trial, what was proven was the price, reward or promise as a considera
tion for killing. The treachery was not proved. Just the same, the accused can
not be convicted of murder because the circumstance proven is not qualifying but
merely generic. It is generic because it is not alleged in the information at
all.
Correlate Article 14 with Article 62.Article 62 gives you the different rules re
garding aggravating circumstances. Aggravating circumstances will not be conside
red when it is the crime itself. If the crime charged is qualified trespass to d
welling, dwelling is no longer aggravating. When the aggravating circumstance re
fers to the material execution of the crime, like treachery, it will only aggrav
ate the criminal liability of those who employed the same.
A person induced another to kill somebody. That fellow killed the other guy and
employed treachery. As far as the killing is concerned, the treachery will quali
fy only the criminal liability of the actual executioner. The fellow who induced
him becomes a co-principal and therefore, he is liable for the same crime commi
tted. However, let us say, the fellow was hired to kill the parent of the one w
ho hired him. He killed a stranger and not the parent. What was committed is dif
ferent from what was agreed upon. The fellow who hired him will not be liable fo
r the crime he had done because that was not the crime he was hired to commit.
2.PERSONALLY CARRIED OUT THE RESOLUTION BY PERFORMING ACT W/C TEND TO ACCOMPL
ISH THE OBJECTIVE
All must be present, if 1 conspirator is absent, then such is not liable, but
if present in planning only, he is guilty of conspiracy to commit felony w
/c is not punishable.
A.B.C &D conspired to murder X. Then, while crime was in progress , B left .Is
B liable? Yes there was no longer a conspiracy to be repudiated since B had alr
eady participated in it.
There was a quarrel bet A&B. At that moment, X arrived and shouted Patayin mo n
a yan siya!!! . A killed B. X who uttered the shout is not a PBI since A was reall
y going to stab B as there was a personal reason on the part of A.
ACCOMPLICES
Ex:SIMULTANEOUS ACTS
X is a taxi driver, One night A&B hired X to take a ride. Then X overheard A&B s
conversation that latter were going to commit robbery. When they reach destin
ation, A&B asked X to wait for 30 minutes We are just going to the house and rob
somebody .
--- A&B did not ask X to join. No agreement, but knowing about their intent t
o rob, X stayed. So X is liable as accomplice.
--- But if B told X Pare, we are going to rob house, you will be our driver then
X is not anymore an accomplice but is now considered as a principal since ther
e exist now a conspiracy.
Ex.PREVIOUS ACTS
B approaches X X may baril ka ba? , X reply Meron, bakit? B: Pwede ko hiramin, babaril
in ko lang si Alex So X lent B the weapon and B killed Alex.
X is an accomplice since X cooperated w/ B by lending him the gun, X cooperated
by a previous act.
Accomplice is also liable for some crime committed by principal although penal
ty is a little bit lower since in conspiracy, act of one is act of all (COLLEC
TIVE LIABILITY).
Other examples:
A do not know B. A wanted to injure X, B wanted to kill X. When A saw X, he star
ted to punch X then B entered and stabbed X. A is liable for physical injuries (
How can A concur with B whom A had no in the first place, intention to kill X) a
nd B is liable for PDP.This is known as an INDIVIDUAL ACT , thereby there are 2
crimes being committed,each to his own.
A wanted to injure X. A do not know B. When B saw X, B started stabbing X. A
arrived and said to B I ll join you .A attacked X w/ his fist . B is liable for homic
ide as PDP and A is liable for homicide as accomplice. When A saw B stabbing X,
he joined the SIMULTANEOUS ACT of assaulting X, A concurred w/o any conspiracy
. This is known as QUASI-COLLECTIVE LIABILITY.
When we say COLLECTIVE , the act of 1 is the act of all. In QUASI-COLLECTIVE, th
e other party merely joined in the simultaneous act of the other making him an a
ccomplice.
ACCESSORIES
CONCEPT OF PENALTY
PRINCIPAL PENALTIES
-Capital punishment:Death.
-Afflictive penalties:Reclusion perpetua, Reclusion temporal.Perpetual or tempor
ary absolute disqualification, Perpetual or temporary special disqualification,
Prision mayor.
-Correctional penalties:Prision correccional, Arresto mayor,Suspension, Destierro
.
-Light penalties:Arresto menor and Public censure.
Penalties common to the three preceding classes:Fine, and Bond to keep the peace.
ACCESSORY PENALTIES
Perpetual or temporary absolute disqualification, Perpetual or temporary special
disqualification, Suspension from public office, the right to vote and be voted
for, the profession or calling. Civil interdiction, Indemnification, Forfeiture
or confiscation of instruments and proceeds of the offense, and payment of cos
ts.
Art. 26. When afflictive, correctional, or light penalty. A fine, whether impose
d as a single of as an alternative penalty, shall be considered an afflictive pe
nalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed
6,000 pesos but is not less than 200 pesos; and a light penalty if it less than
200 pesos.
The following are the measures of prevention or safety which are not considered
penalties under Article 24:
(1) The arrest and temporary detention of accused persons as well as their d
etention by reason of insanity or imbecility or illness requiring their confinem
ent in a hospital.
(2) The commitment of a minor to any of the institutions mentioned in art. 8
0 for the purposes specified therein.
(3) Suspension from the employment or public office during the trial or in o
rder to institute proceedings.
(4) Fines and other corrective measures which, in the exercise of their admi
nistrative disciplinary powers, superior officials may impose upon their subordi
nates.
(5) Deprivation of rights and reparations which the civil laws may establish
in penal form.
Measures of prevention not considered as penalty but merely a preventive measure
s-gives justification for detaining the accused. Otherwise, the detention would
violate the constitutional provision that no person shall be deprived of life,
liberty and property without due process of law. And also, the accused is presu
med innocent until the contrary is proved.
RECLUSION PERPETUA
Art. 27. Reclusion perpetua. Any person sentenced to any of the perpetual penalt
ies shall be pardoned after undergoing the penalty for thirty years, unless such
person by reason of his conduct or some other serious cause shall be considered
by the Chief Executive as unworthy of pardon.
2006 NOTES: reclusion perpetua has no duration because this is an indivisible pe
nalty and indivisible penalties have no durations.
In People v. Conrado Lucas, GR No. 108172-73, May 25, 1994. Court divided the t
ime included in the penalty of reclusion perpetua into three equal portions, wit
h each portion composing a period as follows:
Minimum - 20 years and one day, to 26 years and eight months;
Medium - 26 years, eight months and one day, to 33 years and four months;
Maximum - 34 years, four months and one day, to 40 years.
Still the Supreme Court en banc held that reclusion perpetua shall remain as an
indivisible penalty.
GRule: Death Penalty does not carry accessory penalty, only when it is not execu
ted that such has an accessory.
Art 74 states that in cases where law prescribes a penalty higher than another g
iven penalty w/o designating the name of the former,if such higher penalty shoul
d be death,the same penalty and the accessory penalties of Art40 shall be consid
ered as the higher penalty
2006 notes:Civil interdiction and Perpetual Absolute disqualification during th
e 30 yrs following the date of sentence unless such accessory penalties have bee
n expressly remitted in the pardon are only inherent accessory penalties of deat
h(art40).
2006 notes:penalties of r.perpetua and r.temporal shall carry with them that of
civil interdiction for life or during the period of sentence and that of perpetu
al absolute disqualification which the offender shall suffer even though pardone
d as to principal penalty unless the same shall have been expressly remitted in
pardon(art 41).
If the offender is not disqualified from the credit or deduction provided for in
Article 29 of the Revised Penal Code, then the next thing to determine is wheth
er he signed an undertaking to abide by the same rules and regulations governing
convicts. If he signed an undertaking to abide by the same rules and regulatio
ns governing convicts, then it means that while he is suffering from preventive
imprisonment, he is suffering like a convict, that is why the credit is full.
--But if the offender did not sign an undertaking, then he will only be subjecte
d to the rules and regulations governing detention prisoners. As such, he will
only be given 80% or 4/5 of the period of his preventive detention.
From this provision, one can see that the detention of the offender may subject
him only to the treatment applicable to a detention prisoner or to the treatment
applicable to convicts, but since he is not convicted yet, while he is under pr
eventive imprisonment, he cannot be subjected to the treatment applicable to con
victs unless he signs and agrees to be subjected to such disciplinary measures a
pplicable to convicts.
--Detention prisoner has more freedom within the detention institution rather th
an those already convicted. The convicted prisoner suffers more restraints and
hardship than detention prisoners.
Under what circumstances may a detention prisoner be released, even though the p
roceedings against him are not yet terminated?
Article 29 of the Revised Penal Code has been amended by a Batas Pambansa effect
ive that took effect on September 20, 1980. This amendment is found in the Rule
s of Court, under the rules on bail in Rule 114 of the Rules on Criminal Procedu
re, the same treatment exactly is applied there.
In the amendment, the law does not speak of credit. Whether the person is enti
tled to credit is immaterial. The discharge of the offender from preventive imp
risonment or detention is predicated on the fact that even if he would be found
guilty of the crime charged, he has practically served the sentence already, bec
ause he has been detained for a period already equal to if not greater than the
maximum penalty that would be possibly be imposed on him if found guilty.
If the crime committed is punishable only by destierro, the most the offender ma
y be held under preventive imprisonment is 30 days, and whether the proceedings
are terminated or not, such detention prisoner shall be discharged.
Understand the amendment made to Article 29. This amendment has been incorporat
ed under Rule 114 precisely to do away with arbitrary detention.
Proper petition for habeas corpus must be filed to challenge the legality of the
detention of the prisoner.
--If the offender has already been released, what is the use of continuing the p
roceedings?
The proceedings will determine whether the accused is liable or not. If he was
criminally liable, it follows that he is also civilly liable. The civil liabili
ty must be determined. That is why the trial must go on.
CLASSIFICATION OF PENALTIES
1.Principal penalties and accessory penalties
The penalties which are both principal and accessory penalties are the following
:
(1) Perpetual or temporary absolute disqualification (Perpetual or temporary-we
refer to the duration of the disqualification)
(2) Perpetual or temporary special disqualification. (special or absolute- t
he nature of the disqualification)
Illustration:
A has been convicted and is serving the penalty of prision mayor. While serving
sentence, he executed a deed of sale over his only parcel of land. A creditor
moved to annul the sale on the ground that the convict is not qualified to execu
te a deed of conveyance inter vivos. If you were the judge, how would you resol
ve the move of the creditor to annul the sale?
Civil interdiction is not an accessory penalty in prision mayor. The convict ca
n convey his property.
----Confiscation or forfeiture on the instruments or proceeds of the crime is th
e accessory penalty is common to all principal penalties.
SUBSIDIARY PENALTY
not an accessory penalty,it must be expressly stated in the sentence, but the se
ntence does not specify the period of subsidiary penalty because it will only be
known if the convict cannot pay the fine. The sentence will merely provide tha
t in case of non-payment of the fine, the convict shall be required to save subs
idiary penalty. It will then be the prison authority who will compute this.
After undergoing subsidiary penalty and the convict is already released from jai
l and his financial circumstances improve, can he be made to pay?
--Yes, for the full amount with deduction. if convict has property to levy upon,
the same shall answer for the fine, whether he likes it or not. It must be tha
t the convict is insolvent to pay the fine. That means that the writ of executi
on issued against the property of the convict, if any, is returned unsatisfied.
In People v. Subido, it was held that the convict cannot choose not to serve, or
not to pay the fine and instead serve the subsidiary penalty. A subsidiary pen
alty will only be served if the sheriff should return the execution for the fine
on the property of the convict and he does not have the properties to satisfy t
he writ.
----It is clearly provided under Article 39 that if the means of the convict sho
uld improve, even if he has already served subsidiary penalty, he shall still be
required to pay the fine and there is no deduction for that amount which the co
nvict has already served by way of subsidiary penalty.
Article 39 deals with subsidiary penalty. There are two situations there:
(1) When there is a principal penalty of imprisonment or any other principal
penalty and it carries with it a fine; and
(2) When penalty is only a fine.
Therefore, there shall be no subsidiary penalty for the non-payment of damages t
o the offended party.
GENERAL RULE:The subsidiary penalty is not an accessory penalty that follows the
principal penalty as a matter of course
So even if subsidiary penalty is proper in a case, if the judge failed to state
in the sentence that the convict shall be required to suffer subsidiary penalty
in case of insolvency to pay the fine, that convict cannot be required to suffer
the accessory penalty.
The penalty imposed by the judge is fine only. The sheriff then tried to levy t
he property of the defendant after it has become final and executory, but it was
returned unsatisfied. The court then issued an order for said convict to suffe
r subsidiary penalty. The convict was detained, for which reason he filed a pet
ition for habeas corpus contending that his detention is illegal. Will the peti
tion prosper?
Yes. The judgment became final without statement as to subsidiary penalty, so t
hat even if the convict has no money or property to satisfy the fine, he cannot
suffer subsidiary penalty because the latter is not an accessory and so it must
be expressly stated,or else such would result to double jeopardy.
---If the fine is prescribed with the penalty of imprisonment or any deprivation
of liberty, such imprisonment should not be higher than six years or prision co
rreccional. Otherwise, there is no subsidiary penalty.
EXCEPTION:
--If the principal penalty is destierro, this being a divisible penalty, and a p
enalty with a fixed duration, the non-payment of the fine will bring about subsi
diary penalty AND it will also be in the form of destierro.
A convict was sentenced to suspension and fine. This is a penalty where a publi
c officer anticipates public duties, he entered into the performance of public o
ffice even before he has complied with the required formalities. Suppose the co
nvict cannot pay the fine, may he be required to undergo subsidiary penalty?
Yes, because the penalty of suspension has a fixed duration. Under Article 27,
suspension and destierro have the same duration as prision correccional. So th
e duration does not exceed six years. Since it is a penalty with a fixed durati
on under Article 39, when there is a subsidiary penalty, such shall be 1/3 of th
e period of suspension which in no case beyond one year. But the subsidiary pen
alty will be served not by imprisonment but by continued suspension.
If the penalty is public censure and fine even if the public censure is a light
penalty, the convict cannot be required to pay the fine for subsidiary penalty f
or the non-payment of the fine because public censure is a penalty that has no f
ixed duration.
EFFECTS OF PENALTY
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualific
ation. The penalties of perpetual or temporary absolute disqualification for pub
lic office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may
have held even if conferred by popular election. 2. The deprivation of the right
to vote in any election for any popular office or to be elected to such office.
3. The disqualification for the offices or public employments and for the exerc
ise of any of the rights mentioned.
Art. 34. Civil interdiction Civil interdiction shall deprive the offender during
the time of his sentence of the rights of parental authority, or guardianship, e
ither as to the person or property of any ward, of marital authority, of the rig
ht to manage his property and of the right to dispose of such property by any ac
t or any conveyance inter vivos.
Can a convict execute a last will and testament? Yes.
Destierro
The duration of destierro is from six months and one day, to six year, which is
the same as that of prision correcional and suspension.
A principal penalty. It is a punishment whereby a convict is vanished to a cert
an place and is prohibited form entering or coming near that place designated in
the sentence, not less than 25 Kms.. (However, the court cannot extend beyond
250 Kms).
--If the convict should enter the prohibited places, he commits the crime of eva
sion of service of sentence under Article 157.
--But if the convict himself would go further from which he is vanished by the c
ourt, there is no evasion of sentence because the 240-Km. limit is upon the auth
ority of the court in vanishing the convict.
Under the Revised Penal Code, destierro is the penalty imposed in the following
situations:
(1) When a legally married person who had surprised his or her spouse in the
act of sexual intercourse with another and while in that act or immediately the
reafter should kill or inflict serious physical injuries upon the other spouse,
and/or the paramour or mistress.(Article 247).
(1) In the crime of grave threat or light threat, when the offender is required
to put up a bond for good behavior but failed or refused to do so under Article
284, (such convict shall be sentenced to destierro so that he would not be able
to carry out his threat).
(3) In the crime of concubinage, the penalty prescribed for the concubine is
destierro under Article 334.
(4) Where the penalty prescribed by law is arresto mayor, but the offender i
s entitled privileged mitigating circumstance and lowering the prescribed penalt
y by one degree, the penalty one degree lower is destierro. Thus, it shall be t
he one imposed.
PLURALITY OF CRIME
1.MATERIAL OR REAL
Person performs 2/more criminal acts one after the other and he is liable for ev
ery criminal act he commits since every crime is motivated by a separate crimina
l intent from the other.
Ex: when someone runs amok, he starts shooting people ,even those he doesn t know.
He killed persons one after the other.If he is found guilty of killing 3o peopl
e, there will be 30 convictions and 30 different penalties.
2.FORMAL OR IDEAL
Person commits 2/more criminal acts ,there will be 2/more victims but in the eye
s of the law ,only one crime was committed.
It has 3 types:
DELICTO CONTINUADO
It is a crime which consists of a series of acts but all coming or emanating fro
m one criminal resolution. There is only one criminal resolution and it is follo
wed by a series of acts.
(BAR) X stole 2 roosters. So there are 2 acts of taking ,but if it turned out th
at there are also 2 owners, then, there is only one crime of theft .One crime of
theft involving 2 roosters since there is a single intent to steal. X did not d
ivide his mind into stealing from the 2 owners. X did not even know that there a
re 2 owners of the cocks.
(BAR) X is the class treasurer. The class decided to hold a party and each stude
nt contributed P100 totalling P5000.X disappeared with the money.
HELD: There is only one crime. There was only one intent to defraud. X did not d
ivide his mind 50 times.
2006 notes: the concept of delicto continuado although a product of the Spanish
Penal code has been applied to crimes penalized under a special laws.
2006 notes:It will not be applicable when X is the cashier of a corporation, tod
ay, X ran away with the money. Later X, ran away with another money and after on
e week ,nothing is left.. This is not continuado since what happen today is dffe
rent from the intent next week or tomorrow.
On the other hand, the Supreme Court declined to apply the concept in the follow
ing cases:
(1) Two Estafa cases, one which was committed during the period from January 19
to December, 1955 and the other from January 1956 to July 1956 (People v. Dichup
a, 13 Phil 306). Said acts were committed on two different occasions;
(2) Several malversations committed in May, June and July 1936 and falsification
s to conceal said offenses committed in August and October, 1936. The malversat
ions and falsifications were not the result of one resolution to embezzle and fa
lsify (People v. CIV, 66 Phil. 351);
(3) Seventy-five estafa cases committed by the conversion by the agents of c
ollections from the customers of the employer made on different dates.
In the theft cases, the trend is to follow the single larceny doctrine, that is
taking of several things, whether belonging to the same or different owners, at
the same time and place, constitutes one larceny only. Many courts have abandon
ed the separate larceny doctrine, under which there was distinct larceny as to t
he property of each victim.
Also abandoned is the doctrine that the government has the discretion to prosecu
te the accused for one offense or for as many distinct offenses as there are vic
tims (Santiago v. Justice Garchitorena, decided on December 2, 1993). Here, the
accused was charged with performing a single act that of approving the legaliza
tion of aliens not qualified under the law. The prosecution manifested that the
y would only file one information. Subsequently, 32 amended informations were f
iled. The Supreme Court directed the prosecution to consolidate the cases into
one offense because
(1) they were in violation of the same law-Executive Order No. 324;
(2) caused injury to one party only the government; and
(3) they were done in the same day.
2006 notes:The concept of delito continuado has been applied to crimes under spe
cial laws since in Article 10, the Revised Penal Code shall be supplementary to
special laws, unless the latter provides the contrary.
COMPLEX CRIME
1.COMPOUND (COMPLEX) CRIME
In order for this complex crime to exist ,a single act must constitute either:
a.grave or less grave felonies
b.2 grave felonies
c.2 less grave felonies
If a single act produces a less grave and a light felony. Then there are two pos
sibilities:
a.light felony will be absorved by the less grave
b.there are as many light felonies as there are victims. They are treated as dif
ferent crimes. You cannot complex them. They are to be prosecuted severally.
a.Absorbed
(BAR) P ,a policeman was engaged in the discharge of his duties. X approached hi
m and hit X in the face with his fist. It caused P slight physical injuries. Und
er Art 48,the crime is direct assault. But what happens to the physical injuries
sustained? It is absorbed by the element of attacking or employing force, you c
annot say that the crime is direct assault with slight physical injuries.
Pp v Buan: X,driver while driving his vehicle recklessly bunped another vehicle
causing : death of A, serious injuriy to B and slight physical injury to C. Pros
ecutor should only file one information for homicide ,serious and slight physica
l injuries, cannot file 3 or less there will be double jeopardy.
* there is only one crime, that is the crime RECKLESS IMPRUDENCE ., the homicide
,and physical injuries are only the effects of the imprudent act which is deter
minative of the penalty and the civil liability.
* Art 48 applies when a single act results of 2/more grave or less grave felonie
s, but here, you cannot consider the homicide and the injury as separate, Art 48
does not apply to culpable felonies.
* The felony is the imprudent act, the homicide and physical injury will only de
termine the penalty.
2006 notes:it is also same with the accused thinking that his wife commits adult
ery in their bed killed wife and lover which turned out that no foul play was co
mmitted since lover is merely a blind masseur, so the person is guilty of simpl
e imprudence or negligence (whereby an act which would otherwise constitute a gr
ave or a less serious felony).
2006 notes: If one offense is light ,there is no complex crime. The resulting of
fenses may be treated as separate or the light felony may be absorbed by the gra
ve felony. Thus, the light felonies of damage to property and slight physical in
juries both resulting from a single act of imprudence, do not constitute a comp
lex crime.
* They cannot be charged in one information
* They are separate offenses subject to distinct penalties.
Examples of Compound Crime
(BAR)X throws a hand grenade to the ground and in so doing, he killed 10 people
and almost killed 5 bystanders
HELD: There is only one complex crime of multiple murder with multiple frustrate
d murder. There is only one act of throwing the hand grenade ,although as a resu
lt of that act, several grave or less grave felonies result.
(BAR) X aimed his gun towards other persons. X fired it. The bullet killed 2 peo
ple. There is only one act. X did not commit 2 crime of homicide, he committed
the crime of double homicide.
Aberration Ictus
(BAR) X with intent to kill A and aiming his gun towards A, fired it but becaus
e of poor aim, he did not hit A but instead hit and killed B. X is liable for de
ath of B due to aberration ictus
* the complex crime of homicide with attempted murder is committed. Mere fact of
firing at A is a felony, although attempted .On the other hand, X committed hom
icide because he killed B.
In this case it is not the singleness of the act but the singleness of the impul
se that has been considered
2006 notes:
Compound (or compound complex crime) is when there exist 2 grave/less grave felo
nies. Whereby in complex ,one act is necessary means for the fulfillment of the
other act.
An example of compound is when you rape someone,and after raping,the victim said
di ako nasarapan! so out of anger you killed her, that latter act is not a necessa
ry means to the act of rape. So you commit 2 crimes, rape and homicide.
An example of complex is when in order to rape a girl, you stab her first.so sta
bbing her is a necessary means in order to rape her.so this is complex crime of
rape with homicide.
2006 notes: complex crime (art48) is 1 bullet and it killed many and not many bu
llets.
2006 notes:cannot complex grave/less grave with light felony, it must be separat
e
2006 notes:no complex if felony and crime under special law.
In People v. Jose, there were four participants here. They abducted the woman,
after which, the four took turns in abusing her. It was held that each one of
the four became liable not only for his own rape but also for those committed by
the others. Each of the four offenders was convicted of four rapes. In the ey
es of the law, each committed four crimes of rape. One of the four rapes commit
ted by one of them was complexed with the crime of abduction. The other three r
apes are distinct counts of rape. The three rapes are not necessary to commit th
e other rapes. Therefore, separate complaints/information.
In People v. Pabasa, the Supreme Court through Justice Aquino ruled that there i
s only one count of forcible abduction with rape committed by the offenders who
abducted the two women and abused them several times. This was only a dissentin
g opinion of Justice Aquino, that there could be only one complex crimeof abduct
ion with rape, regardless of the number of rapes committed because all the rapes
are but committed out of one and the same lewd design which impelled the offend
er to abduct the victim.
Art 49: In case in which the felony committed is different from that which the o
ffender intended to commit, the ff rules shall be observed:
1.if penalty prescribed for felony committed be higher than that corresponding t
o the offense which the accused intended to commit. The penalty corresponding to
the latter shall be imposed in its maximum period.
A attacked someone whom he thought was B,stranger and killed him. But when A loo
ked at victim it was his father.
1.felony commited is Parricide
2.felony intended is Homicide
So if A is found guilty of parricide, the court will not impose RP to death but
only RT in its maximum period
2.if penalty prescribed for the felony committed be lower than that correspondin
g to the one which the accused intended to commit, the penalty for the former sh
all be imposed in its maximum period.
a.A wanted to kill his father. So A shot him but when he looked closely, it turn
ed out that victim was not his father but B, someone who looks like his father.
1.crime intended-parricide punishable by RP to D
2.crime committed- homicide punishable by RT
A commit homicide since he killed a stranger. But the penalty of RT should be ma
ximize.
Article 49 is not applicable to situation under 4(1) which are Praeter Intention
em, and Aberratio Ictus which are under Article 48.
4blue 95 notes:In Art 48 ,the imposable penalty is based on the HIGHER penalty t
o be maximized.
While in 49, it is based on LOWER penalty to be maximized.
Praeter Intentionem
A intended only to commit slight physical injuries (punishable by Arresto Menor)
on B. However B died, so the felony committed by A is homicide punishable by RT
.
HELD: A should be prosecuted for homicide since that s the crime committed but one
A is found guilty, the penalty should be A Menor (due to mitigating cicum that
he did not intend to commit so grave a wrong as that committed)
Aberratio Ictus
A with poor aim did not kill B(whom he intends to kill) but killed C. A is liabl
e for killing C, Art 48 will prevail since it is a complex crime where a single
act produces 2/more grave/less grave felonies
1.consummated homicide of C
2.attempted homicide of B
Since it is a complex crime, correct penalty is NOT based on lower offense, but
on higher offense in its MAXIMUM period,as such penalty should be based on comsu
mmated homicide which should be maximized.
RULES IN PENALTIES
Master this Graduated Scale:
SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be voted for, the right
to follow a profession or calling,
4. Public censure,
5. Fine.
Apply it in this table (articles 50-57):
Principal
attempted
Frustrated
Consummated
-1
-2
-3
Accomplice
-4
Accessory
4blue 95 lecture: it means that if it is a consummated act,for example, the RPC
penalizes it as reclusion temporal, then the accomplice is one degree lower from
principal ;and accessory is two degrees lower than the principal.
4blue 95 lecture:if it is frustrated,then the penalty of principal is one degree
lower from the principal in consummated ,and the principal in attempted is two
degrees lower than in principal in consummated.
2006 notes:The order in the table is not applicable if RPC prescribes a specific
rule on graduation (like in abduction whereby the accomplice is parents or guar
dian ,it is the same penalty with the principal even if accomplice) Article 60 R
PC.
When there is a privilege mitigating circumstance in favor of the offender, it w
ill lower the penalty by one or two degrees than that prescribed by law dependin
g on what the particular provision of the Revised Penal Code states.
When the penalty prescribed for the crime committed is a divisible penalty and t
here are two or more ordinary mitigating circumstances and no aggravating circum
stances whatsoever, the penalty next lower in degree shall be the one imposed
RULES IN GRADUATING PENALTIES (ART 61)
For purposes of graduating penalties to be imposed upon persons guilty as princi
pals of any frustrated or attempted felony or as accomplices or accessories ,the
ff rules shall be observed:
1.when penalty prescribed is single and indivisible (which is only Death and Rec
lusion Perpetua), the penalty next lower in degree shall be that imposed
2.when it is composed of 2 indivisible penalties, or of one or more divisible pe
nalties to be imposed to their full extent, the penalty next lower in degree sha
ll be that immediately following the lesser of the penalties prescribe in the gr
aduated scale
3.repealed.
4.when penalty prescribed is composed of several periods, corresponding to diffe
rent divisible penalties, the penalty next lower in degree shall be composed of
period immediately following the minimum prescribed and of the two next followin
g, which shall be taken from the penalty prescribed, if possible ,otherwise, fro
m the penalty immediately following in the graduated scale.
5.when the law prescribed a penalty for a crime in some manner,not specially pro
vided for in the 4 preceding rules, the courts proceeding by analogy, shall impo
se the corresponding penalties upon those guilty as principals of the frustrated
felony or of attempt to commit the same, and upon accomplices and accessories.
RULES IN INDIVISIBLE PENALTY (ART 63) .
In all cases in which the law prescribes a single indivisible penalty, it shall
be applied by the courts regardless of any mitigating or aggravating circumstanc
es that may have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible p
enalties, the following rules shall be observed in the application thereof:
1. only one aggravating circumstance, the greater penalty shall be applied.
2. neither mitigating nor aggravating circumstances and there is no aggravating
circumstance, the lesser penalty shall be applied.
3. attended by some mitigating circumstances and there is no aggravating circums
tance, the lesser penalty shall be applied.
4. both mitigating and aggravating circumstances attended the commission of the
act, the court shall reasonably allow them to offset one another in consideratio
n of their number and importance, for the purpose of applying the penalty in acc
ordance with the preceding rules, according to the result of such compensation.
EFFECT OF MITIGATING/AGGRAVATING (ART 62)
Mitigating or aggravating circumstances and habitual delinquency shall be taken
into account for the purpose of diminishing or increasing the penalty in conform
ity with the following rules:
1. Aggravating circumstances which in themselves constitute a crime specially pu
nishable by law or which are included by the law in defining a crime and prescri
bing the penalty therefor shall not be taken into account for the purpose of inc
reasing the penalty.
2. The same rule shall apply with respect to any aggravating circumstance inhere
nt in the crime to such a degree that it must of necessity accompany the commiss
ion thereof.
4blue 95: aggravating is maximized,but in 1&2,an aggravating will not increase s
ince it constitutes the crime itself like fire in arson is not aggravating; it
is included by law like when X commited robbery whereby dwelling is not aggravat
ing ;and that it is inherent in a crime like evident premeditation is not aggrav
ating in robbery.
3. Aggravating or mitigating circumstances which arise from the moral attributes
of the offender, or from his private relations with the offended party, or from
any other personal cause, shall only serve to aggravate or mitigate the liabili
ty of the principals, accomplices and accessories as to whom such circumstances
are attendant.
4blue 95:Personal Cause is like A is minor,B is not,then they commit crime. Mino
rity is personal to A not to B so only A can use it.
4. The circumstances which consist in the material execution of the act, or in t
he means employed to accomplish it, shall serve to aggravate or mitigate the lia
bility of those persons only who had knowledge of them at the time of the execut
ion of the act or their cooperation therein.
4blue 95: Material execution is when X hired B to kill A and B told X the manner
of how he will kill A,as such, even if X was not the one who kill A still he kn
ows the material execution.
5Habitual delinquency shall have the following effects:
(a) Upon a third conviction the culprit shall be sentenced to the penalty provid
ed by law for the last crime of which he be found guilty and to the additional p
enalty of prision correccional in its medium and maximum periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the penalty prov
ided for the last crime of which he be found guilty and to the additional penalt
y of prision mayor in its minimum and medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be sentenced to the
penalty provided for the last crime of which he be found guilty and to the addi
tional penalty of prision mayor in its maximum period to reclusion temporal in i
ts minimum period.
Notwithstanding the provisions of this article, the total of the two penalties t
o be imposed upon the offender, in conformity herewith, shall in no case exceed
30 years.
For the purpose of this article, a person shall be deemed to be habitual delinqu
ent, is within a period of ten years from the date of his release or last convic
tion of the crimes of serious or less serious physical injuries, robo(robbery),
hurto (theft), estafa or falsification, he is found guilty of any of said crimes
a third time or oftener.
Art. 66. Imposition of fines. In imposing fines the courts may fix any amount wi
thin the limits established by law; in fixing the amount in each case attention
shall be given, not only to the mitigating and aggravating circumstances, but mo
re particularly to the wealth or means of the culprit.
4blue 95 notes:When there are mitigating circumstance and aggravating circumstan
ce and the penalty is only fine, when it is only ordinary mitigating circumstanc
e and aggravating circumstance, apply Article 66. --Because you determine the i
mposable fine on the basis of the financial resources or means of the offender.
But if the penalty would be lowered by degree, there is a privileged mitigating
circumstance or the felony committed is attempted or frustrated,
* provided it is not a light felony against persons or property
* because if it is a light felony and punishable by fine, it is not a crime at a
ll unless it is consummated. So, if it is attempted or frustrated, do not go on
e degree lower because it is not punishable unless it is a light felony against
person or property where the imposable penalty will be lowered by one degree or
two degrees.
Article 75 Fines
With respect to the penalty of fine, if felony committed is only attempted or fr
ustrated or because there is an accomplice or an accessory participation, the fi
ne is lowered by deducting 1/4 of the maximum amount of the fine from such maxim
um without changing the minimum amount prescribed by law.
Illustration:
If the penalty prescribed is a fine ranging from P200.00 to P500.00, but the fel
ony is frustrated so that the penalty should be imposed one degree lower, 1/4 of
P500.00 shall be deducted therefrom. This is done by deducting P125.00 from P5
00.00, leaving a difference of P375.00. The penalty one degree lower is P375.00
.
To go another degree lower, P125.00 shall again be deducted from P375.00 and tha
t would leave a difference of P250.00. Hence, the penalty another degree lower
is a fine ranging from P200.00 to P250.00.
If at all, the fine has to be lowered further, it cannot go lower than P200.00.
So, the fine will be imposed at P200.00. This rule applies when the fine has t
o be lowered by degree.
ordinary mitigating or aggravating circumstance would affect the penalty which i
s in the form of a fine
it is discretionary upon the court to apply the fine taking into consideration t
he financial means of the offender to pay the same.
In other words, it is not only the mitigating and/or aggravating circumstances t
hat the court shall take into consideration, but primarily, the financial capabi
lity of the offender to pay the fine. (For the same crime, the penalty upon an a
ccused who is poor may be less than the penalty upon an accused committing the s
ame crime but who is wealthy)
For instance, when there are two offenders who are co-conspirators to a crime, a
nd their penalty consists of a fine only, and one of them is wealthy while the o
ther is a pauper, the court may impose a higher penalty upon the wealthy person
and a lower fine for the pauper.
ARTICLES CONFLICT WITH ORDINARY MITIGATING
Article 69:Privilege Mitigating
A penalty lower by one or two degrees than that prescribed by law shall be impos
ed if the deed is not wholly excusable by reason of the lack of some of the cond
itions required to justify the same or to exempt from criminal liability in the
several cases mentioned in Article 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exem
ption present or lacking.
4blue 95:Art 69 speaks about Privilege Mitigating which means if as example in i
ncomplete self defense, if majority of the elements is present, then apply Art69
coz if only minimal is present,then Art 13:Ordinary Mitigating
Under P.D. 603, if you are a minor which means less than 18 or above 9 years of
age, upon commission, trial and conviction (below 21 at time of conviction) of o
ffense, you are entitled to a suspended sentence and serve time in a welfare ins
titution like DSWD or gov t agency, not in prison. There is automatic suspension,
no need for minor to apply
But to enjoy suspended sentence, the accused must be a minor at time of commiss
ion, trial, conviction and application for suspended sentence under P.D. 603
Penalties
Time included in its entirety
Time
Reclusion
12
14
817
10
426Prision
Arresto
years
months
years,4
years,2
years,8
years,4
years
included
mayor,
and
correccional,
Mayor
and
temporal
months
months
11day
inday
Absolute
its
and
and
to
to110
minimum
medium
maximum
812
20day
114
12
26suspension
years
day
disqualification
years
years
toto
period
period
64and
and
17
20
years
and
4years
8months
months
Destierro
and
and
and
2 month
4Special
month temporary disqualification
(computation is not applicable in this penalty)
421 months
month
to 2 months
and
and11day
daytoto664months
month
months
1Arresto
11
21 toto10
3030
20days
Menor
days
Illustration of Art 64:
If crime committed is parricide, penalty is reclusion perpetua. The accused, af
ter committing parricide, voluntarily surrendered and pleaded guilty of the crim
e charged upon arraignment. It was also established that he was intoxicated, an
d no aggravating circumstances were present. What penalty would you impose?Recl
usion perpetua, because it is an indivisible penalty.
When there are two or more mitigating circumstances and there is no aggravating
circumstance, penalty to be imposed shall be one degree lower to be imposed in t
he proper period. Do not apply this when there is one aggravating circumstance.
There are about four mitigating circumstances and one aggravating circumstance.
Court offsets the aggravating circumstance against the mitigating circumstance
and there still remains three mitigating circumstances. Because of that, the ju
dge lowered the penalty by one degree. Is the judge correct?No. In such a case
when there are aggravating circumstances, no matter how many mitigating circumst
ances there are, after offsetting, do not go down any degree lower.
The penalty prescribed by law will be the penalty to be imposed, but in the mini
mum period. Cannot go below the minimum period when there is an aggravating cir
cumstance.
Go into the lowering of the penalty by one degree if the penalty is divisible.
So do not apply the rule in paragraph 5 of Article 64 to a case where the penalt
y is divisible.
2006 notes:there s bigger possibility of going down rather than going up.
PENALTIES WITH THREE PERIODS (ART 64)
In cases in which the penalties prescribed by law contain three periods, whether
it be a single divisible penalty or composed of three different penalties, each
one of which forms a period in accordance with the provisions of Articles 76 an
d 77, the court shall observe for the application of the penalty the following r
ules, according to whether there are or are not mitigating or aggravating circum
stances:
1. When there are neither aggravating nor mitigating circumstances, they shall i
mpose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstances is present in the commission of the act,
they shall impose the penalty in its minimum period.
3. When an aggravating circumstance is present in the commission of the act, the
y shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circumstances are present, the court sha
ll reasonably offset those of one class against the other according to their rel
ative weight.
5. When there are two or more mitigating circumstances and no aggravating circum
stances are present, the court shall impose the penalty next lower to that presc
ribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating circumstances, the c
ourts shall not impose a greater penalty than that prescribed by law, in its max
imum period.
7. Within the limits of each period, the court shall determine the extent of the
penalty according to the number and nature of the aggravating and mitigating ci
rcumstances and the greater and lesser extent of the evil produced by the crime.
FORMULA :
1.example penalty is reclusion temporal which has a duration of from 12 years an
d 1 day as the minimum, to 20 yrs as the maximum (MEMORIZE THE PENALTY IN ITS E
NTIRETY).
2.subtract maximum of R Temporal and the maximum years of Prision Mayor (the pe
nalty next lower in rank) 20-12=8
3.divide the difference by 3, thus : 8/3= 2 yrs and 8 months
If mahirap i-divide ng 3,then convert it,like 5 yrs and 6 months to 3 yrs and 30
months.
4.use minimum of 12 years and 1 day of reclusion temporal as the minimum of the
minimum period, then add 2 yrs and 8 months to the minimum (disregard the 1 day
) to get the maximum of the minimum period.
We have 14 yrs and 8 months as the maximum of the minimum period.The range of th
e minimum period is therefore 12 yrs and 1 day to 14 years and 8 months.
5.Use the maximum of the minimum period as the minimum of the medium period, and
add 1 day to distinguish it from the maximum of the minimum period: 14 yrs,8 m
onths and 1 day.
Then add 2 yrs and 8 months to the minimum of the medium period (disregarding 1
day), we have 17 yrs and 4 months as the maximum of the medium period. The rang
e of the medium period is 14 yrs, 8 months and 1 day to 17 yrs and 4 months
6.Use the maximum of the medium period as the minimum of the maximum period and
add 1 day to distinguish it from the maximum of the medium period
We have 17 yrs,4 months and 1 day. Then add 2 yrs and 8 months to the minimum o
f the maximum period (disregarding the 1day) and we have 20 years. Hence, the r
ange of the maximum period is 17 yrs, 4 months and 1 day to 20 years.
Art. 65. Rule in cases in which the penalty is not composed of three periods.
In cases in which the penalty prescribed by law is not composed of three periods
(2 periods or one), the courts shall apply the rules contained in the foregoing
articles, dividing into three equal portions of time included in the penalty pre
scribed, and forming one period of each of the three portions.
Prision correctional in its medium and maximum. The duration of prision correct
ional is 6 months and 1 day to 6 years.
Subtracting the bigger from the smaller would result to: 6 yrs-6
months =5 yrs and 6 months / 3= 1 yr and 10 months
Minimum: 5 mos and 1 day to 2 yrs and 4 mos.
Medium: 2 yrs,4 mos and 1 day to 4 yrs and 2 months
Maximum:4 yrs,2 mos and 1 day to 6 years
But since it is in its medium and maximum periods ,the duration is 2 years, 4 mo
nths and 1 day to 6 years, the time included in that penalty should be divided i
nto 3 equal periods as follows:
5 yrs & 12 mos (or 6 yrs)
-2 yrs & 4 mos
3 yrs & 8 mos.( 1 yr,2 mos & 20 days)
-3yrs & 6 mos
2mos or 60 days
Duration of each portion after dividing the duration of penalty into 3 equal po
rtions is 1 yr, 2 months and 20 days.
Since the minimum prescribed by law is 2 yrs and 4 months,and duration of each p
ortion is 1 yr, 2 mos and 2o days, the time comprised in the minimum is from 2 y
rs ,4 mos and 1 day to 3 yrs, 6 months and 20 days.
2 ys,4 mos (& 1 day )-- minimum of minimum
1yr,2mos & 20days duration of each portion
3 yrs,6mos& 20 days maximum of the minimum
To obtain minimum of medium, add 1 day to the maximum of minimum and make it the
minimum of medium, so its : 3 yrs, 6 mos and 21 days ,therefore ,add to durati
on of each portion, the maximum would now be 4 years, 9 mos and 10 days.
Follow same step to get the maximum which is from 4 years, 9 months and 11 days
to 6 years.
4blue 95: first subtract bigger to lower,then divide by 3 and start the minimum
with a month and a day.
2006 notes:For the purpose of applying the respective severity of the penalties
shall be determined in accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10 Temporal absolute disqualification.
11. Suspension from public office, the right to vote and be voted for, the right
to follow a profession or calling, and
12. Public censure.
The THREE-FOLD RULE can only be applied if the convict is to serve four or more
sentences successively.
It is in the service of the penalty, not in the imposition of the penalty, that
the Three-Fold rule is to be applied.
This rule is intended for the benefit of the convict and so, you will only apply
this provided the sum total of all the penalties imposed would be greater than
the product of the most severe penalty multiplied by three but in no case will t
he penalties to be served by the convict be more than 40 years.
(The chronology of the penalties as provided in Article 70 of the Revised Penal
Code shall be followed).
2005 notes:Indivisible penalties are given equivalent of 30 years. It does not a
pply to the penalty prescribed but to the penalty imposed as determined by the c
ourt.
2005 notes: The three fold rule is also applicable to penalties although it were
imposed by different courts at different times as long as it shall not exceed t
he most severe.
Do not consider the totality of the imprisonment the convict is sentenced to but
consider the totality or the duration of the imprisonment that the convict will
be required to serve under the Three-Fold Rule.
If the totality of the imprisonment under this rule does not exceed six years, t
hen, even if the totality of all the sentences without applying the Three-Fold R
ule will go beyond six years, the convict shall be required to undergo subsidiar
y penalty if he could not pay the fine.
Illustration:A collector of NAWASA collected from 50 houses within a certain loc
ality. When he was collecting NAWASA bills, the charges of all these consumers
was a minimum of 10. The collector appropriated the amount collected and so was
charged with estafa. He was convicted. Penalty imposed was arresto mayor and
a fine of P200.00 in each count. If you were the judge, what penalty would you
impose? May the convict be required to undergo subsidiary penalty in case he is
insolvent to pay the fine?
The Three-Fold Rule should not applied by the court. In this case of 50 counts
of estafa, the penalty imposed was arresto mayor and a fine of P200.00. Arresto
mayor + P200.00 x 50. Arresto Mayor is six months x 50 = 25 years. P200.00 x 5
0 = P10,000.00.
---Thus, I would impose a penalty of arresto mayor and a fine of P200.00 multipl
ied by 50 counts and state further that as a judge, I am not in the position to
apply the Three-Fold Rule because the Three-Fold Rule is to be given effect when
the convict is already serving sentence in the penitentiiary. It is the prison
authority who will apply the Three-Fold Rule.
For the purposes of subsidiary penalty, apply the Three-Fold Rule if the penalty
is arresto mayor and a fine of P200.00 multiplied by 3.
--This means one year and six months only. So, applying the Three- Fold Rule, th
e penalty does not go beyond six years. Hence, for the non- payment of the fine
of P10,000.00, the convict shall be required to undergo subsidiary penalty. (T
his is because the imprisonment that will be served will not go beyond six years
. It will only be one year and six months, since in the service of the sentence
, the Three-Fold Rule will apply).
IF 3 FOLD RULE TURNED OUT TO BE LONGER,THEN DON T APPLY IT.
GRADUATED SCALE (ART 71)
Due to presence of principal,accomplice and accessory
In the case in which the law prescribed a penalty lower or higher by one or more
degrees than another given penalty, the rules prescribed in Article 61 shall be
observed in graduating such penalty. The lower or higher penalty shall be taken
from the graduated scale in which is comprised the given penalty. The courts, i
n applying such lower or higher penalty, shall observe the following graduated s
cales:
SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
3. Suspension from public office, the right to vote and be voted for, the right
to follow a profession or calling,
4. Public censure,
5. Fine.
In homicide under Article 249, the penalty is reclusion temporal. One degree lo
wer, if homicide is frustrated, or there is an accomplice participating in homic
ide, is prision mayor, and two degrees lower is prision correccional.
--This is true if the penalty prescribed by the Revised Penal Code is a whole di
visible penalty -- one degree or 2 degrees lower will also be punished as a whol
e. But generally, the penalties prescribed by the Revised Penal Code are only in
periods, like prision correcional minimum, or prision correcional minimum to me
dium.
(BAR) what penalty follows Arresto Mayor? It depends, if under art 71 which is
graduation of penalties, then Destierro. If under art 70, which is the successi
ve service of sentence ,then it is Arresto Menor.
4blue 95 says that if it pertains to successive order (OF SEVERITY) or service o
f sentence,then 70 but if graduated (due to presence of principal,accomplice and
accessory)then it is 71.
(BAR) A,B&C are charged with a crime. A,principal, B accomplice and C accessory.
Suppose all of them are found guilty. If penalty of A is A.Mayor, what is penal
ty of B and C?
HELD:Since issue is graduation of penalty (since Principal, Accomplice and Acces
sory), article to be applied is 71.
Although the penalty is prescribed by the Revised Penal Code as a period, such p
enalty should be understood as a degree in itself and the following rules shall
govern:
1.When the penalty prescribed by the Revised Code is made up of a period, like p
rision correccional medium, the penalty one degree lower is prision correccional
minimum, and the penalty two degrees lower is arresto mayor maximum. In other
words, each degree will be made up of only one period because the penalty prescr
ibed is also made up only of one period.
2.When the penalty prescribed by the Code is made up of two periods of a given p
enalty, every time such penalty is lowered by one degree you have to go down als
o by two periods.
If the penalty prescribed for the crime is prision correccional medium to maximu
m, the penalty one degree lower will be arresto mayor maximum to prision correcc
ional minimum, and the penalty another degree lower will be arresto mayor minimu
m to medium. Every degree will be composed of two periods.
When the penalty prescribed by the Revised Penal Code is made up of three period
s of different penalties, every time you go down one degree lower, you have to g
o down by three periods.
The penalty prescribed by the Revised Penal Code is prision mayor maximum to rec
lusion temporal medium, the penalty one degree lower is prision correccional max
imum to prision mayor medium. Another degree lower will be arresto mayor maximu
m to prision correccional medium.
(BAR) A is charged criminally for 3 separate offenses, and he was found guilty i
n all 3.
1st crime he was sentenced to 6 months of a. mayor
2nd crime he was sentenced to 6 yrs of destierro
3rd crime he was sentenced to 5 days of a.menor
HELD: Since this is an issue of succession, then A will serve his penalties as f
ollows:
1st he has to serve the penalty of 6 months of arresto mayor
2nd he has to serve 5 days of arresto menor
3rd he will now serve the penalty of destierro
EXECUTION /SERVICE OF PENALTIES
2006 notes: Complex Penalty (Art 77) is a penalty composed of 3 distinct penalti
es each one has a period (like treason)
Art. 78. When and how a penalty is to be executed. No penalty shall be executed
except by virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed by law, n
or with any other circumstances or incidents than those expressly authorized the
reby.
In addition to the provisions of the law, the special regulations prescribed for
the government of the institutions in which the penalties are to be suffered sh
all be observed with regard to the character of the work to be performed, the ti
me of its performance, and other incidents connected therewith, the relations of
the convicts among themselves and other persons, the relief which they may rece
ive, and their diet.
The regulations shall make provision for the separation of the sexes in differen
t institutions, or at least into different departments and also for the correcti
on and reform of the convicts.
Art. 79. Suspension of the execution and service of the penalties in case of ins
anity. When a convict shall become insane or an imbecile after final sentence ha
s been pronounced, the execution of said sentence shall be suspended only with r
egard to the personal penalty, the provisions of the second paragraph of circums
tance number 1 of Article 12 being observed in the corresponding cases.
If at any time the convict shall recover his reason, his sentence shall be execu
ted, unless the penalty shall have prescribed in accordance with the provisions
of this Code.
The respective provisions of this section shall also be observed if the insanity
or imbecility occurs while the convict is serving his sentence.
2005 notes: law saysthat the death sentence shall be executed with preference to
any other. This jibes with Art 70 since in executing with 2/more penalties you
start at most severe going to less severe.
Art. 83. Suspension of the execution of the death sentence(BAR). The death sente
nce shall not be inflicted upon a woman within the three years next following th
e date of the sentence or while she is pregnant, nor upon any person over sevent
y years of age. In this last case, the death sentence shall be commuted to the p
enalty of reclusion perpetua with the accessory penalties provided in Article 40
.
Death Penalty should be suspended when:
1.if the woman is pregnant. Let us not kill the fetus, it is the mother who is g
uilty not the child
2.a woman within one year after delivery. Let us allow her to nurse the child. A
fter one year after delivery ,let us kill her with impunity.
3.When the convict is over 70 years old.
Art 47 states that the death penalty shall not be imposed in all cases in which
it must be imposed under existing laws except when
1.the guilty person is below 18 at time of commission of the crime
2.or is more than 70 years of age
3.or which upon appeal or automatic review of the case by the SC ,the required m
ajority vote is not obtained for the imposition of the death penalty in which ca
se the penalty shall be reclusion perpetua.
2005 notes: reconciling 47 and 83 with regard the accused is over 70 is that in
47 when accused is over 70 he should not be sentenced to death there should be a
n automatic commutation to r perpetua while in 83 ,the death penalty should be s
uspended.
2005 notes:as such ,it could be both, reprieve and suspension.
2005 notes:Suppose you are 69 yrs of age when you were convicted by lower court
then you appeal it,but it was affirmed. You are safe when judgment becomes final
since 47 state that it should be commuted to r perpetua, but still the Presiden
t has to commute it, it is not automatic, while you are waiting for his official
act, the execution will be suspended, that is how to reconcile 47 with 83.
2005 notes:Old age can never be a privilege mitigating except when the imposable
penalty is death.(unlike in minory whereby it could be ordinary or privilege mi
tigating)
2005 notes:It is only a privilege, but if he is sentenced to rec perpetua, it wi
ll not be commuted
INDETERMINATE SENTENCE LAW
Indeterminate Sentence Law governs whether the crime is punishable under the Rev
ised Penal Code or a special Law. It applies only when the penalty served is im
prisonment. If not by imprisonment, then it does not apply. In applying it ,pen
alty arrived at by the court after applying the mitigating and aggravating circu
mstances that should be the basis.
The minimum and the maximum referred to in the Indeterminate Sentence Law are no
t periods. So, do not say, maximum or minimum period. It refer to the duration
of the sentence which the convict shall serve as a minimum, and when we say maxi
mum, for purposes of ISLAW, we refer to the maximum limit of the duration that t
he convict may be held in jail.
Courts are required to fix a minimum and a maximum of the sentence that they are
to impose upon an offender when found guilty of the crime charged. So, wheneve
r the Indeterminate Sentence Law is applicable, there is always a minimum and ma
ximum of the sentence that the convict shall serve.
APPLICATION
* First, the court shall sentence accused to an INDETERMINATE sentence by firs
t determining MAXIMUM taking into account the following: a) Degree of participat
ion of accused; b) Stage of execution of crime; and c) Attendant circumstances.
* Second, after finding maximum, look for the MINIMUM which is found within a
ny of the range of the next lower penalty.
Advantage of Indeterminate Sentence Law (ISL) is after serving the minimum, one
can apply for parole and can leave prison and live a normal life, but subject,
of course, to supervision of parole officer.
PROBLEM:Assuming that the penalty for homicide is reclusion temporal, and the ac
cused X was 17 years old when he committed the offense, and there is one mitigat
ing and no aggravating circumstance attending the commission of the crime, answ
er the following:
(a) What is the exact range of the maximum of the Indeterminate Sentence of X, a
nd why? If I were the judge, I will first look for the maximum, taking into acco
unt the attendant circumstances in the commission of the crime. Considering that
homicide is punishable with reclusion temporal, and since X was a minor when he
committed the offense, the penalty should be one degree lower, or prision mayor
. And since there is one mitigating circumstance present and no aggravating, the
maximum should be within the range of prision mayor in its minimum period, or
exactly within the range of 6 years, one day to 8 years.
(b) What is the exact range of the minimum of the Indeterminate Sentence of X,
and why? After finding the maximum, I ll look for the minimum by simply going one
degree lower from prision mayor, which is prision correccional. Therefore, the
minimum of the penalty to be imposed on X is within any of the range of prision
correccional, which is six months and one day to six years.
(c)If you are a very strict judge, what is the most serious, or highest penalty
you can impose on X?If I were a very strict judge, the highest penalty, or most
serious penalty, I can impose on X is 6 years up to 8 years. This means that aft
er serving 6 years, accused can be released on parole subject to terms and con
ditions of the Board of Pardon and Parole, and under supervision of a parole off
icer.
(d)If you are a very lenient judge, what is the least serious, or lowest penalty
you can impose on X?If I were a very lenient judge, the lowest penalty, or leas
t serious penalty, I can impose on X is 6 months and one day to six years and on
e day.
IF CRIME IS A VIOLATION OF REVISED PENAL CODE
the court will impose a sentence that has a minimum and maximum.
The maximum of the indeterminate sentence will be arrived at by taking into acco
unt the attendant mitigating and/or aggravating circumstances according to Artic
le 64 of the Revised Penal Code.
In arriving at the minimum of the indeterminate sentence, the court will take in
to account the penalty prescribed for the crime and go one degree lower.
(This is true only if the mitigating circumstance taken into account is only an
ordinary mitigating circumstance. If the mitigating circumstance is privileged,
you cannot follow the law in so far as fixing the minimum of the indeterminate
sentence is concerned; otherwise, it may happen that the maximum of the indeterm
inate sentence is lower than its minimum).
2006 notes:always focus on the maximum and the attendant circumstances.
2006 notes:penalty is based on graver offense.
CRIMINAL LIABILITY
Criminal liability is totally extinguished as follows:
(1) By the death of the convict as to personal penalties; and as to pecuniar
y penalties, liability therefore is extinguished only when the death of the offe
nder occurs before final judgment
(2) By service of sentence;
(3) By amnesty which completely extinguished the penalty and all its effects
;
(4) By absolute pardon;
(5) By prescription of the crime;
(6) By prescription of the penalty;
(7) By the marriage of the offended women as in the crimes of rape, abductio
n, seduction and acts of lasciviousness.
Amnesty erases not only the conviction but also the crime itself. So that if an
offender was convicted for rebellion and he qualified for amnesty, and so he wa
s given an amnesty, then years later he rebelled again and convicted, is he a re
cidivist? No. Because the amnesty granted to him erased not only the convictio
n but also the effects of the conviction itself.
Suppose, instead of amnesty, what was given was absolute pardon, then years late
r, the offended was again captured and charged for rebellion, he was convicted,
is he a recidivist?
Yes. Pardon, although absolute does not erase the effects of conviction.
Illustration:
In the crime of falsification of a document that was registered in the proper re
gistry of the government like the Registry of Property or the Registry of Deeds
of the Civil registry, the falsification is deemed public from the time the fals
ified document was registered or recorded in such public office so even though,
the offended party may not really know of the falsification, the prescriptive pe
riod of the crime shall already run from the moment the falsified document was r
ecorded in the public registry. So in the case where a deed of sale of a parcel
of land which was falsified was recorded in the corresponding Registry of Prope
rty, the owner of the land came to know of the falsified transaction only after
10 years, so he brought the criminal action only then. The Supreme Court ruled
that the crime has already prescribed. From the moment the falsified document i
s registered in the Registry of Property, the prescriptive period already commen
ced to run.
When a crime prescribes, the State loses the right to prosecute the offender, he
nce, even though the offender may not have filed a motion to quash on this groun
d the trial court, but after conviction and during the appeal he learned that at
the time the case was filed, the crime has already prescribed, such accused can
raise the question of prescription even for the first time on appeal, and the a
ppellate court shall have no jurisdiction to continue, if legally, the crime has
indeed prescribed.
The prevailing rule now is, prescription of the crime is not waivable, the earli
er jurisprudence to the contrary had already been abrogated or overruled. Moreo
ver, for purposes of prescription, the period for filing a complaint or informat
ion may not be extended at all, even though the last day such prescriptive perio
d falls on a holiday or a Sunday.
For instance, light felony prescribes in 60 days or two months. If the 60th day
falls on a Sunday, the filing of the complaint on the succeeding Monday is alre
ady fatal to the prosecution of the crime because the crime has already prescrib
ed.
The rules on Criminal Procedure for purposes of prescription is that the filing
of the complaint even at the public prosecutor s office suspends the running of th
e prescriptive period, but not the filing with the barangay. So the earlier rul
ings to the contrary are already abrogated by express provision of the Revised R
ules on Criminal Procedure.
4blue95 notes: Criminal law follows the DISCOVERY Rule and not the constructive
notice rule (however, if crime was committed publicly, discovery rule is not app
licable.)
4blue95 notes: Constructive Notice Rule is applicable only where transactions pe
rtain to deeds, documents and transactions involving possession of real property
recorded in Registry of Deeds.
2007 notes:in crime of rape, the marriage of an offender to victim would only ex
tinguish the liability of that offender but not of the other co-principal,accomp
lice and accessory.
Marriage as a ground for extinguishing civil liability must have been contracted
in good faith. The offender who marries the offended woman must be sincere in
the marriage and therefore must actually perform the duties of a husband after t
he marriage, otherwise, notwithstanding such marriage, the offended woman, altho
ugh already his wife can still prosecute him again, although the marriage remain
s a valid marriage. Do not think that the marriage is avoided or annulled. The
marriage still subsists although the offended woman may re-file the complaint.
The Supreme Court ruled that marriage contemplated must be a real marriage and
not one entered to and not just to evade punishment for the crime committed beca
use the offender will be compounding the wrong he has committed.
2.Commutation of Sentence
Art. 96. Effect of commutation of sentence. The commutation of the original sent
ence for another of a different length and nature shall have the legal effect of
substituting the latter in the place of the former
3.Conditional Pardon
Art. 95. Obligation incurred by person granted conditional pardon. Any person wh
o has been granted conditional pardon shall incur the obligation of complying st
rictly with the conditions imposed therein otherwise, his non-compliance with an
y of the conditions specified shall result in the revocation of the pardon and t
he provisions of Article 159 shall be applied to him.
4.Parole
This correspondingly extinguishes service of sentence up to the maximum of the i
ndeterminate sentence. This is the partial extinction referred to, so that if t
he convict was never given parole, no partial extinction.
2006 notes: Under Probation Law, filing of application for probation shall be d
eemed a waiver of the right to appeal, however, such waiver is revocable, hence
,accused may withdraw his application and instead opt to pursue appeal from conv
iction.
II.Discretionary conditions:
The trial court which approved the application for probation may impose any cond
ition which may be constructive to the correction of the offender, provided the
same would not violate the constitutional rights of the offender and subject to
this two restrictions: (1) the conditions imposed should not be unduly restrict
ive of the probationer; and (2) such condition should not be incompatible with t
he freedom of conscience of the probationer
2006 notes: as such, pardon is not applicable if it exceed 6 yrs, or party has p
revious criminal record, or has avail probation already or is convicted under th
e Dangerous Drugs Act.
CIVIL LIABILITY
Art. 100. Civil liability of a person guilty of felony. Every person criminally
liable for a felony is also civilly liable.
Art. 101. Rules regarding civil liability in certain cases. The exemption from c
riminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and
in subdivision 4 of Article 11 of this Code does not include exemption from civ
il liability, which shall be enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability f
or acts committed by an imbecile or insane person, and by a person under nine ye
ars of age, or by one over nine but under fifteen years of age, who has acted wi
thout discernment, shall devolve upon those having such person under their legal
authority or control, unless it appears that there was no fault or negligence o
n their part. Should there be no person having such insane, imbecile or minor un
der his authority, legal guardianship or control, or if such person be insolvent
, said insane, imbecile, or minor shall respond with their own property, excepti
ng property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of Article 11, the persons for who
se benefit the harm has been prevented shall be civilly liable in proportion to
the benefit which they may have received.
The courts shall determine, in sound discretion, the proportionate amount for wh
ich each one shall be liable. When the respective shares cannot be equitably det
ermined, even approximately, or when the liability also attaches to the Governme
nt, or to the majority of the inhabitants of the town, and, in all events, whene
ver the damages have been caused with the consent of the authorities or their ag
ents, indemnification shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons u
sing violence or causing the fears shall be primarily liable and secondarily, or
, if there be no such persons, those doing the act shall be liable, saving alway
s to the latter that part of their property exempt from execution.
Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietor
s of establishments. In default of the persons criminally liable, innkeepers, ta
vernkeepers, and any other persons or corporations shall be civilly liable for c
rimes committed in their establishments, in all cases where a violation of munic
ipal ordinances or some general or special police regulation shall have been com
mitted by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by ro
bbery or theft within their houses from guests lodging therein, or for the payme
nt of the value thereof, provided that such guests shall have notified in advanc
e the innkeeper himself, or the person representing him, of the deposit of such
goods within the inn; and shall furthermore have followed the directions which s
uch innkeeper or his representative may have given them with respect to the care
and vigilance over such goods. No liability shall attach in case of robbery wit
h violence against or intimidation of persons unless committed by the innkeeper'
s employees.
Art. 103. Subsidiary civil liability of other persons. The subsidiary liability
established in the next preceding article shall also apply to employers, teacher
s, persons, and corporations engaged in any kind of industry for felonies commit
ted by their servants, pupils, workmen, apprentices, or employees in the dischar
ge of their duties.
Under Articloe 102, two conditions must be present before liability attaches to
the inkeepers, tavernkeepers and proprietors:
(1) The guest must have informed the management in advance of his having brought
to the premises certain valuables aside from the usual personal belongings of t
he guest; and
(2) The guest must have followed the rules and regulations prescribed by the man
agement of such inn, tavern, or similar establishment regarding the safekeeping
of said valuables.
The Supreme Court ruled that even though the guest did not obey the rules and re
gulations prescribed by the management for safekeeping of the valuables, this do
es not absolve management from the subsidiary civil liability. Non-compliance w
ith such rules and regulations but the guests will only be regarded as contribut
ory negligence, but it won t absolve the management from civil liability.
Liability specially attaches when the management is found to have violated any l
aw or ordinance, rule or regulation governing such establishment.
Even if the crime is robbery with violence against or intimidation of persons or
committed by the inkeeper s employees, management will be liable, otherwise, not
liable because there is duress from the offender, liable only for theft and forc
e upon things.
Under Article 103, the subsidiary liability of an employer or master for the cri
me committed by his employee or servant may attach only when the following requi
sites concur:
(1) The employer must be engaged in business or in trade or industry while the a
ccused was his employee;
(2) At the time the crime was committed, the employee-employerr relationship mus
t be existing between the two;
(3) The employee must have been found guilty of the crime charged and accordingl
y held civilly liable;
(4) The writ of execution for the satisfaction of the civil liability was return
ed unsatisfied because the accused-employee does not have enough property to pay
the civil liability.
When these requisites concur, the employer will be subsidiarily civilly liable f
or the full amount that his employee was adjudged civilly liable. It is already
settled in jurisprudence that there is no need to file a civil action against t
he employer in order to enforce the subsidiary civil liability for the crime com
mitted by his employee, it is enough that the writ of execution is returned unsa
tisfied. There is no denial of due process of law because the liability of the
employer is subsidiary and not primary. He will only be liable if his employee
does not have the property to pay his civil liability, since it is the law itsel
f that provides that such subsidiary liability exists and ignorance of the law i
s not an excuse.
Civil liability of the offender falls under three categories:
(1) Restitution and restoration;
(2) Reparation of the damage caused; and
(3) Indemnification of consequential damages.
Restitution or restoration
Restitution or restoration presupposes that the offended party was divested of p
roperty, and such property must be returned.
If the property is in the hands of a third party, the same shall nevertheless be
taken away from him and restored to the offended party, even though such third
party may be a holder for value and a buyer in good faith of the property, excep
t when such third party buys the property from a public sale where the law prote
cts the buyer.
For example, if a third party bought a property in a public auction conducted by
the sheriff levied on the property of a judgment creditor for an obligation, th
e buyer of the property at such execution sale is protected by law. The offende
d party cannot divest him thereof. So the offended party may only resort to rep
aration of the damage done from the offender.
Some believed that this civil liability is true only in crimes against property,
this is not correct. Regardless of the crime committed, if the property is ill
egally taken from the offended party during the commission of the crime, the cou
rt may direct the offender to restore or restitute such property to the offended
party. It can only be done if the property is brought within the jurisdiction
of that court.
For example, in a case where the offender committed rape, during the rape, the o
ffender got on of the earrings of the victim. When apprehended, the offender wa
s prosecuted for rape and theft. When the offender was asked why he got on of t
he earrings of the victim, the offender disclosed that he took one of the earrin
gs in order to have a souvenir of the sexual intercourse. Supreme Court ruled
that the crime committed is not theft and rape but rape and unjust vexation for
the taking of the earring. The latter crime is not a crime against property, th
is is a crime against personal security and liberty under Title IX of Book II of
the RPC. And yet, the offender was required to restore or restitute the earrin
g to the offended woman.
Property will have to be restored to the offended party even this would require
the taking of the property from a third person. Where personal property was div
ested from the offended party pursuant to the commission of the crime, the one w
ho took the same or accepted the same would be doing so without the benefit of t
he just title. So even if the property may have been bought by the third person
, the same may be taken from him and restored to the offended party without an o
bligation on the part of the offended party to pay him whatever he paid.
The right to recover what he has paid will be against the offender who sold it t
o him. On the other hand, if the crime was theft or robbery, the one who receiv
ed the personal property becomes a fence, he is not only required to restitute t
he personal property but he incurs criminal liability in violation of the Anti-F
encing Law.
If the property cannot be restituted anymore, then the damage must be repaired,
requiring the offender to pay the value thereof, as determined by the court. Th
at value includes the sentimental value to the offended party, not only the repl
acement cost. In most cases, the sentimental value is higher than the replaceme
nt value. But if what would be restored is brand new, then there will be an all
owance for depreciation, otherwise, the offended party is allowed to enrich hims
elf at the expense of the offender. So there will be a corresponding depreciati
on and the offended party may even be required to pay something just to cover th
e difference of the value of what was restored to him.
The obligation of the offender transcends to his heirs, even if the offender die
s, provided he died after judgment became final, the heirs shall assume the burd
en of the civil liability, but this is only to the extent that they inherit prop
erty from the deceased, if they do not inherit, they cannot inherit the obligati
ons.
The right of the offended party transcends to heirs upon death. The heirs of th
e offended party step into the shoes of the latter to demand civil liability fro
m the offender.
Civil liability of the offender is extinguished in the same manner as civil obli
gation is extinguished but this is not absolutely true. Under civil law, a civi
l obligation is extinguished upon loss of the thing due when the thing involved
is specific. This is not a ground applicable to extinction of civil liability i
n criminal case if the thing due is lost, the offender shall repair the damages
caused.
When there are several offenders, the court in the exercise of its discretion sh
all determine what shall be the share of each offender depending upon the degree
of participation as principal, accomplice or accessory. If within each class o
f offender, there are more of them, such as more than one principal or more than
one accomplice or accessory, the liability in each class of offender shall be s
ubsidiary. Anyone of the may be required to pay the civil liability pertaining
to such offender without prejudice to recovery from those whose share have been
paid by another.
Ex: A thief gave his girlfriend a ring worth P50T, later on, they broke up an
d the girl sold the ring at P20T. Later, it was established that the ring was st
olen and it was given to her but she being in good faith sold it to a stranger.
The Civil liability of the girl is to pay the P20T , since she is liable only
to the amount in extent of her participation.
With regard heirs of the accused, they are only liable upto amount that they in
herited from the accused.
If all the principals are insolvent, the obligation shall devolve upon the accom
plice(s) or accessory(s). But whoever pays shall have the right of covering the
share of the obligation from those who did not pay but are civilly liable.
To relate with Article 38, when there is an order or preference of pecuniary (mo
netary) liability, therefore, restitution is not included here.
There is not subsidiary penalty for non-payment of civil liability.
Obligation to satisfy civil liability. Except in case of extinction of his civil
liability as provided in the next preceding article the offender shall continue
to be obliged to satisfy the civil liability resulting from the crime committed
by him, notwithstanding the fact that he has served his sentence consisting of
deprivation of liberty or other rights, or has not been required to serve the sa
me by reason of amnesty, pardon, commutation of sentence or any other reason.
4BLUE 95 notes: in criminal procedure, unlike in civil procedure, only the accus
ed could appeal since if it is an acquittal then it is immediately executory. Ho
wever, if before appeal his sentence is light, it could be possible that after a
ppeal, the accused sentence could be increased.
4BLUE 95 notes: in criminal procedure, the offended party can only appeal only w
ith regard damages. (Wala ring third party complaint.. sa criminal procedure)
4BLUE 95 notes: in criminal procedure, if what was alleged was only HOMICIDE, bu
t during trial ,it was proven that it was MURDER, the accused cannot be convicte
d of MURDER since it is higher than Homicide, so homicide pa rin.
Preference in the payment of the civil liabilities.
The civil liabilities of a person found guilty of two or more offenses shall be
satisfied by following the chronological order of the dates of the judgments ren
dered against him, beginning with the first in order of time.
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