Art. 13. Mitigating circumstances.
— The following are mitigating
circumstances;
1. Those mentioned in the preceding chapter, when all the requisites
necessary to justify or to exempt from criminal liability in the
respective cases are not attendant.
2. A child above fifteen but below eighteen years of age at the time
of the commission of the offense who acted with discernment, in
which case he shall be subjected to appropriate diversion programs
under Sections 23 to 31 of this Act.
3. That the offender had no intention to commit so grave a wrong as
that committed
4. That sufficient provocation or threat on the part of the offended
party immediately preceded the act.
5. That the act was committed in the immediate vindication of a grave
offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees.
6. That of having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation.
7. That the offender had voluntarily surrendered himself to a person
in authority or his agents, or that he had voluntarily confessed his guilt
before the court prior to the presentation of the evidence for the
prosecution;
8. That the offender is deaf and dumb, blind or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.
9. Such illness of the offender as would diminish the exercise of the
will-power of the offender without however depriving him of the
consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.
Mitigating circumstances defined
A mitigating circumstance is a circumstance which, if present in the
commission of a felony, reduces the penalty to be imposed upon the
accused either by degree, in which case it is called a privileged
mitigating circumstance; or by period, in which case it is called an
ordinary mitigating circumstance.
Basis of a mitigating circumstance
A mitigating circumstance reduces the accused’s free will,
intelligence or criminal intent in the commission of the felony.
Kinds of mitigating circumstances
1. Privileged mitigating circumstance
2. Ordinary mitigating circumstance
Distinctions between a privileged mitigating circumstance and an
ordinary mitigating circumstance
Privileged mitigating circumstance
1. If present in the commission of a felony, reduces the penalty
to be imposed upon the accused by degree
2. It cannot be offset by a generic aggravating circumstance
Ordinary mitigating circumstance
1. If present in the commission of a felony, reduces the penalty
to be imposed upon the accused by period
2. It can be offset by a generic aggravating circumstance
Distinctions between mitigating circumstance and exempting
circumstance
A mitigating circumstance presupposes the existence of both the
crime and the criminal while an exemption circumstance recognizes
only a felonious act but admits that there is no criminal offender
because the performance of the act was not attended with
voluntariness on the part of the human actor.
Examples of privileged mitigating circumstance
1. Incomplete justifying circumstances
2. Incomplete exempting circumstances
3. When the child in conflict with the law is over 15 years old
but under 18 at the time of the commission of the offense and
he acted with discernment but was never subjected to
diversion programs under RA 9344
4. When there are two or more mitigating and no aggravating
circumstances, the court shall impose the penalty next lower
to that prescribed by the law in the period that it may deem
proper
Examples of ordinary mitigating circumstances:
1. Lack of intent to commit so grave a wrong as that committed
2. Sufficient provocation or threat on the part of the offended
party immediately preceeded the act
3. The act was committed in immediate vindication of a grave
offense committed against a spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or relatives
by affinity within the same degree
4. Having acted upon an impulse so powerful as naturally to
have produced passion or obfuscation
5. Voluntary surrender to a person in authority or his agents
6. Voluntary confession of guilt before the court prior to the
presentation of evidence for the prosecution
7. The offender is deaf and dumb, blind, or otherwise suffering
some physical defect which thus restricts his means of action,
defense, or communication with his fellow beings.
8. Such illness of the offender diminishes the exercise of the
will-power of the offender without however depriving him of
the consciousness of his act
9. Other circumstances of a similar nature or analogous to those
above-mentioned.
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify or to exempt from criminal
liability in the respective cases are not attendant.
Effects of incomplete justifying or incomplete exempting
circumstance
The effect of an incomplete justifying or incomplete exempting
circumstance is to reduce the penalty to be imposed upon the
accused by one or two degrees lower than that prescribed by law,
provided that majority of the conditions required to justify the same
or to exempt from criminal liability in the cases mentioned in
Articles 11 and 12 are present. The court shall impose the penalty in
the period it may deem proper in view of the number and nature of
the conditions present or lacking.
Further requirement of incomplete self-defense, defense of a relative
or defense of a stranger to be considered a privileged mitigating
circumstance
In order that incomplete self-defense, defense of a relative or
defense of a stranger may be considered a privileged mitigating
circumstance, it is necessary that there always be the element of
unlawful aggression plus either element number 2 or 3. Without
unlawful aggression, there can be no self-defense, defense of a
relative or defense of a stranger, complete or incomplete.
To claim incomplete self-defense, there should be unlawful
aggression.
There is no incomplete defense of a relative if the unlawful
aggression has ceased
The act of cursing or shouting at the accused does not constitute
unlawful aggression.
An attack against one’s property must be coupled by an attack
against the person
2. A child above fifteen but below eighteen years of age at the
time of the commission of the offense who acted with
discernment, in which case he shall be subjected to
appropriate diversion programs under Sections 23 to 31 of
this Act.
Basis: Diminution of intelligence
Nature: This is a privileged mitigating circumstance that has the effect
of lowering the penalty to be imposed by the court upon the accused
by one degree lower than the penalty prescribed by the law.
3. That the offender had no intention to commit so grave a
wrong as that committed
Basis: Diminution of criminal intent and lesser criminal perversity
Nature: This is an ordinary mitigating circumstance. It has the effect
of reducing the penalty to the minimum period, unless offset by a
generic aggravating circumstance
In a killing, lack of intent to commit so grave a wrong as that
committed is an internal state of mind that can be shown only by
external circumstances, such as the following:
1. Kind of weapon used
2. The mode of attack
3. The nature of the injury inflicted on the victim
4. The part of the body injured
5. The location of the wound
6. The number of wounds suffered by the victim
7. The manner the wound is inflicted
8. The attitude of the mind when the accused attacked the victim
Lack of intent to commit so gave a wrong as that committed should
exist at the particular moment when the accused executes or commits
the criminal act
Lack of intent to commit so grave a wrong as that committed may be
compatible with the felony of murder
Lack of intent to commit so grave a wrong as that committed is not
available as a defense in violation of the Anti-Hazing Law, RA. 8049
Lack of intent to commit so grave a wrong as that committed cannot
be appreciated in a crime committed through negligence or
carelessness
The proposition that “reckless imprudence” is not a crime in itself but
simply a way of committing it and merely determines “a lower degree
of criminal liability” is to broad to deserve unqualified assent. There
are crimes that by their nature cannot be committed through
imprudence, ie, murder, treason, robbery, malicious mischief.
Lack of intent to commit so grave a wrong as that committed cannot
be appreciated in aberratio ictus.
Lack of intent to commit so grave a wrong as that committed cannot
be appreciated in mistake of identity or error in personae
The number of wounds suffered by the victim may defeat the claim
of lack of intent to commit so grave a wrong as that committed.
The location of the wounds suffered may defeat the claim of lack of
intent to commit so grave a wrong as that committed.
The nature of the wound suffered may corroborate the claim of lack
of intent to commit so grave a wrong as that committed
The extent of injury suffered may defeat the claim of lack of intent to
commit so grave a wrong as that committed
The attitude and mind of the accused may defeat the claim of lack of
intent to commit so grave a wrong as that committed
The kind of weapon used may defeat the claim of lack of intent to
commit so grave a wrong as that committed
The means employed and the weapon used in committing the crime
may defeat the claim of lack of intent to commit so grave a wrong as
that committed
An intervening ailment may lend credence to the accused’s claim of
lack of intent to commit so grave a wrong as that committed
4. That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
Basis: Diminution of free will
Nature: This is an ordinary mitigating circumstance
Concept of sufficient provocation
Provocation is defined to be any unjust or improper conduct or act of
the offended party, capable of exciting, inciting, or irritating anyone.
In order to be mitigating, provocation must be sufficient and should
immediately precede the act. Provocation is sufficient if it is adequate
to excite a person to commit the wrong, which must accordingly be
proportionate in gravity. That the provocation must immediately
precede the act means that there should not be any interval of time
between the provocation by the offender party the commission of the
crime by the person provoked.
When an aggression is in retaliation for an insult, injury, or threat it
cannot be considered as a defense but as a punishment inflicted on the
author of the provocation, and in such a case the most that courts
could do would be to consider the same as an extenuating
circumstance, but never as a cause of complete exemption from
liability.
Distinction between provocation in incomplete self-defense and
provocation as a mitigating circumstance
Sufficient provocation as a requisite of incomplete self-defense is
different from sufficient provocation as a mitigating circumstance. As
an element of self-defense, it pertains to its absence on the part of the
person defending himself; while as a mitigating circumstance, it
pertains to its presence on the part of the offended party,
Examples of sufficient provocation immediately preceding the crime
1. Challenging the family of the accused and chasing a family
member
2. Uttering offensive words like, “Vulva of your mother, if you
are talking as if you have no debts, not like me, I have no
debts.”
3. Infidelity of the wife constitutes sufficient provocation
4. An accusation of stealing jack fruits is sufficient provocation
5. The victim’s act of kicking the the accused on the chest prior
to the stabbing may be considered sufficient provocation on
the victim’s part
6. There is sufficient provocation where the deceased hit the
accused’s eye with his fist before the fight
Shouting expletives and slapping accused’s hand are insufficient
provocation
No provocation to pursue or further attack the deceased
The utterance by the deceased that “the accused is strict as a
policeman” does not constitute sufficient provocation
The lapse of 24 hours from the provocation or threat to the killing
cannot be deemed to have immediately preceded the crime
The mitigating circumstances of passion or obfuscation, sufficient
provocation immediately preceding the crime and vindication of a
grave offense should be considered only as one mitigating
circumstance
The mitigating circumstances of passion or obfuscation and sufficient
provocation cannot be considered apart from the circumstance of
vindication of a grave offense. These circumstances all arose from
one and the same incident, ie, the attack on the accused by the victims
and their companions, so that they should be considered as one
mitigating circumstance.
Provocation not coming from the offended party but from another
person is not mitigating
5. That the act was committed in the immediate vindication
of a grave offense to the one committing the felony (delito),
his spouse, ascendants, or relatives by affinity within the
same degrees.
Basis: Diminution of free-will and self-control
Nature: This is an ordinary mitigating circumstance
Relative against whom a grave offense is committed:
1. Spouse
2. Ascendants
3. Descendants
4. Legitimate, natural or adopted brothers or sisters
5. Relatives by affinity within the same degrees
Distinctions between sufficient provocation or threat and vindication
of a grave offense:
Provocation or threat
1. The provocation or threat must immediately precede the crime
2. The provocation must be personal to the accused
3. The act that caused the provocation does not have to be a grave
offense
Vindication
1. The vindication may be proximate, ie, it may allow a lapse of
time between the grave offense and the vindication
2. The grave offense may be committed against the relatives
specified by the law
3. The act being vindicated should be a grave offense committed
against the accused himself or any of his relatives specified by
the law.
6. That of having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation.
Basis: Diminution of free-will and self-control
Nature: This is an ordinary mitigating circumstance
Passional obfuscation defined.
There is passional obfuscation when the crime was committed due to
an uncontrollable burst of passion provoked by prior unjust or
improper acts, or due to a legitimate stimulus so powerful as to
overcome reason.
Requisites in order that passion or obfuscation may be considered
mitigating
1. An unlawful act sufficient to produce passion and obfuscation
was committed by the intended victim
2. The crime was committed within a reasonable length of time
from the commission of the unlawful act that produced the
obfuscation in the accused’s mind
3. The passion and obfuscation arose from lawful sentiments and
not from a spirit of lawlessness or revenge
Attempt to rape the wife produces passion and obfuscation in the
husband
Excitement of the accused who fought with the son of the deceased
constitutes passion or obfuscation
The act of producing passion or obfuscation must not be far removed
from the commission of the crime during which the accused may
recover his normal equanimity
Examples of crimes committed out of passion or obfuscation
1. Passion or obfuscation arising from the act of the deceased in
placing his hand on the upper portion of the accused’s right
thigh
2. Passion or obfuscation arising from the thought of his home
being demolished and his access to the highway being closed
 3. Passion or obfuscation produced by a jealous feeling
4. Passion or obfuscation arising from the discovery of the wife
and the deceased lying beside each other
Passion and obfuscation caused by jealousy arising from the amorous
relationship between the wife and another man is mitigating
Obfuscation must come from legitimate feelings
Passion or obfuscation must not arise from a spirit of lawlessness or
revenge
Passion or obfuscation should not arise from vicous, unworthy and
immoral sentiments
Passion and obfuscation cannot be appreciated in killing a rival for a
girl’s affections
7. That the offender had voluntarily surrendered himself to
a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to the
presentation of the evidence for the prosecution.
Two separate ordinary mitigating circumstances in this paragraph
1. Voluntary surrender to a person in authority or his agents
2. Voluntary confession of guilt before the court prior to the
presentation of evidence for the prosecution
Basis: Lesser criminal perversity on the part of the accused
Nature: These two are ordinary mitigating circumstances
Requisites of voluntary surrender
1. The offender has not been actually arrested
2. The offender surrendered himself to a person in authority or
his agents
3. The surrender must be voluntary
4. The surrender must be unconditional
5. The surrender must be spontaneous
Lack of resistance does not mean voluntary surrender
The accused must show an intent to surrender unconditionally
The surrender must be spontaneous
The surrender must be done before the accused could in fact be
arrested
There is still voluntary surrender although the accused did not
immediately tell the police that he was the assassin
Reason why voluntary surrender is mitigating
The reason behind this mitigating circumstance is that it shows the
intent of the accused to submit himself unconditionally to the
authorities, either because he acknowledges his guilt, or because he
wishes to save them the trouble and expense necessarily incurred in
his search and capture.
When the accused is in fact arrested, there is no voluntary surrender
Where should voluntary surrender be made.

The voluntary surrender may be made to a person in authority or
agent of a person in authority anywhere in the Philippines. The law
does not require that the surrender be done to a person in authority
or agent of a person in authority in the place where the crime was
committed.
It is not necessary that the surrender be done at the first opportunity.
It is enough that the surrender contains the prescribed requirements.
No voluntary surrender when done after almost nine months from
the issuance of a warrant of arrest because the surrender is not
spontaneous
To be mitigating circumstance, the illness should be one which
would diminish the exercise of the will-power of the accused, but
should not deprive him of the consciousness of his acts.
When the illness would deprive the accused of the consciousness of
his acts, this is considered to be not merely an ordinary mitigating
circumstance but an exempting circumstance.
10. And, finally, any other circumstances of a similar nature
and analogous to those above mentioned.
Extreme poverty and necessity is mitigating
Belief in withcraft is mitigating

No voluntary surrender when it is done after undergoing hardships

and difficulties of living the life of a fugitive from justice.

There is still voluntary surrender when the accused went into hiding
for his protection and safety

No voluntary surrender when they went to see the chief of police not
to surrender but because he called for them

Waiting for the policeman to arrive may not be considered as

voluntary surrender
9. Such illness of the offender as would diminish the exercise
of the will-power of the offender without however
depriving him of the consciousness of his acts.
Basis: Diminution of intelligence and intent
Nature: This is an ordinary mitigating circumstance