CRIMINAL LAW

Criminal Law, defined.

Criminal law is that branch or division of law which defines
crimes, treats of their nature, and provides for their punishment. (12
129)

Crime, defined.
Crime is an act committed or omitted in violation of a public law
forbidding or commanding it. (I Law Dictionary, Rawle's
Third Revision, 729)

Sources of Philippine Criminal Law.

1. The Revised Penal Code (Act No. 3815) and its amend-
ments.
2. Special Penal Laws passed by the Philippine Commission,
Philippine Assembly, Philippine Legislature, National As-
sembly, the Congress of the Philippines, and the Batasang

3. Penal Presidential Decrees issued during Martial Law.

No common law crimes in the Philippines.

The so-called common law crimes, known in the United States
and England as the body of principles, usages and rules of action,
which do not rest for their authority upon any express and positive
declaration of the will of the legislature, are not recognized in this
country. Unless there be a particular provision in the penal code
or special penal law that defines and punishes the act, even if it be
socially or morally wrong, no criminal liability is incurred by its com-
mission. (See U.S. vs. Taylor, 28 Phil. 599, 604)
Court decisions are not sources of criminal law, because they
merely explain the meaning of, and apply, the law as enacted by the
legislative branch of the government.
 CRIMINAL LAW IN GENERAL
Limitations to Enact Criminal Legislation

Power to define and punish crimes.

The State has the authority, under its police power, to define and
punish crimes and to lay down the rules of criminal procedure. States,
as a part of their police power, have a large measure of discretion in
creating and criminal offenses. (People vs. Santiago, 43 Phil.
120, 124)
The right of prosecution and punishment for a crime is one of
the attributes that by a natural law belongs to the sovereign power
instinctively charged by the common will of the members of society
to look after, guard and defend the interests of the community, the
individual and social rights and the liberties of every citizen and the
guaranty of the exercise of his rights. (U.S. vs. Pablo, 35 Phil. 94,
100)

Limitations on the power of the lawmaking body to enact

penal legislation.
The Bill of Rights of the 1987 Constitution imposes the following
limitations:
No post facto law or bill of attainder shall be enacted.
(Art. Sec. 22)
2. No person shall be held to answer for a criminal offense
without due process of law. (Art. Sec.
The first limitation prohibits the passage of retroactive laws
which are prejudicial to the accused.
An ex post facto law is one which:

makes criminal an act done before the passage of the law

and which was innocent when done, and punishes such an
act;

(2) aggravates a crime, or makes it greater than it was, when

committed;
changes the punishment and inflicts a greater punishment
than the law annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction
upon less or different testimony than the law required at
the time of the commission of the offense;

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 CRIMINAL IN GENERAL
Constitutional Rights of the Accused

(5) assumes to regulate civil rights and remedies only, in effect

imposes penalty or deprivation of a right for something
which when done was lawful; and

(6) deprives a person accused of a crime some lawful protection

to which he has become entitled, such as the protection
of a former conviction or acquittal, or a proclamation of
amnesty. (In re: Kay Villegas Kami, Inc., 35 SCRA 429,
431)

Congress is also prohibited from passing an act which would

inflict punishment without judicial trial, for that would constitute a
bill of attainder.

A bill of attainder is a legislative act which inflicts

punishment without trial. Its essence is the substitution of a
legislative act for a judicial determination of guilt. (People vs.
Ferrer, 48 SCRA 382, 395)
Example:
Congress passes a law which authorizes the arrest and
imprisonment of communists without the benefit of a judicial
trial.

To give a law retroactive application to the prejudice of the

accused is to make it an ex post facto law.
The penalty of mayor medium, or eight years and
one day to ten years, imposed by Presidential Decree No. 818,
applies only to swindling by means of issuing bouncing checks
committed on or after October 22, 1985. That increased penalty
does not apply to estafa committed on October 16, 1974 because
it would make the decree an ex post facto law. Its retroactive
application is prohibited by Articles 21 and 22 of the Revised
Penal Code and Section 12, Article IV (now Sec. 22, Art. of
the 1987 Constitution). (People vs. Villaraza, 81 SCRA 95, 97)

The second limitation requires that criminal laws must be of

general application and must clearly define the acts and omissions
punished as crimes.

Constitutional rights of the accused.

Article III, Bill of Rights, of the 1987 Constitution provides for
the following rights:

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 CRIMINAL IN GENERAL
Constitutional Rights of the Accused

All persons shall have the right to a speedy disposition of

their cases before all judicial, quasi-judicial, or administra-
tive bodies. (Sec. 16)
2. No person shall be held to answer for a criminal offense
without due process of law. (Sec.
3. All persons, except those charged with offenses punishable
by when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law.
The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended.
Excessive bail shall not be required. (Sec. 13)
4. In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the
right to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him,
to have speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to
appear is unjustifiable. (Sec.
5. No person shall be compelled to be a witness against
himself. (Sec. 17)
Any person under investigation for the commission of
an offense shall have the right to be informed of his right
to remain silent and to have competent and independent
counsel preferably of his own choice.
If the person cannot afford the services of counsel, he
must be provided with one.
These rights cannot be waived except in writing and
in the presence of counsel. (Sec.
No torture, force, threat, intimidation, or any
other means which vitiate the free will shall be used against
him. Secret detention places, solitary,

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 CRIMINAL IN GENERAL
Statutory Rights of the Accused

or other similar forms of detention are prohibited. (Sec

Any confession or admission obtained in violation of

this or Section hereof shall be inadmissible in evidence
against him. (Sec.

6. Excessive fines shall not be imposed, nor cruel, degrading

or inhuman punishment inflicted. (Sec.
7. No person shall be twice put in jeopardy of punishment
for the same offense. If an act is punished by a law and
an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
(Sec. 21)
8. Free access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any person
by reason of poverty. (Sec.

Statutory rights of the accused.

Section 1, Rule 115, of the Revised Rules on Criminal Procedure
provides that in all criminal prosecutions, the accused shall be
entitled:
1. To be presumed innocent until the contrary is proved
beyond reasonable doubt.
2. To be informed of the nature and cause of the accusation
against him.
3. To be present and defend in person and by counsel at every
stage of the proceedings, from arraignment to promulgation
of the x x x
4. To testify as a witness in his own behalf but subject to
cross- examination on matters covered by direct exami-
nation. His silence shall not in any manner prejudice
him.
To be exempt from being compelled to be a witness against
himself.
6. To confront and cross-examine the witnesses against him
at the xx x

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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

To have compulsory process issued to secure the attendance

of witnesses and production of other evidence in his
behalf.
8. To have a speedy, impartial and public trial.
To appeal in all cases allowed and in the manner prescribed
by law.

Rights of the accused which may be waived and rights which

may not be waived.
A right which may be waived is the right of the accused to
confrontation and cross-examination. A right which may not be waived
is the right of the accused to be informed of the nature and cause of
the accusation against

The reason or principle underlying the difference between rights

which may be waived and rights which may not be waived is that those
rights which may be waived are personal, while those rights which
may not be waived involve public interest which may be affected. (2
Rules of Court, 1952 Edition, 748)

Characteristics of criminal law.

Criminal law has three main characteristics: (1) general, (2)
territorial, and (3) prospective.
I. GENERAL, in that criminal law is binding on all persons
who live or sojourn in Philippine territory. (Art. 14, new Civil
Code)

In a case where the accused contended that being an American

citizen, he cannot be prosecuted for, much less convicted of, the crime
of illegal possession of firearms, because it is a constitutional right of
the citizens of the United States of America "to keep and bear
without any need of applying and securing a government license
therefor, the Court of Appeals held:

"The P h i l i p p i n e s is a soverei gn stat e with the

obligation and the right of every government to uphold
its laws and maintain order within its domain, and with
the general jurisdiction to punish persons for offenses
committed within its territory, regardless of the nationality

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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

of the offender. and Yap, Public International Law,

p. No foreigner enjoys in this country extra-territorial
right to be exempted from its laws and jurisdiction, with the
exception of heads of states and diplomatic representatives
who, by virtue of the customary law of nations, are not
subject to the Philippine territorial jurisdiction." (People
vs. Galacgac, 54 O.G. 1027)

As a general rule, the jurisdiction of the civil courts is not

affected by the military character of the accused.

U.S. vs. Sweet

(1 Phil. 18)

Facts: Sweet was an employee of the U.S. Army in the

Philippines. He assaulted a prisoner of war for which he was
charged with the crime of physical injuries. Sweet interposed the
defense that the fact that he was an employee of the U.S. military
authorities deprived the court of the jurisdiction to try and punish

Held: The case is open to the application of the general principle

that the jurisdiction of the civil tribunals is unaffected by the military
or other special character of the person brought before them for
unless controlled by express legislation to the contrary.

Civil courts have concurrent jurisdiction with general courts-

martial over soldiers of the Armed Forces of the Philippines.
Civil courts have jurisdiction over murder cases committed by
persons subject to military law. The civil courts have concurrent
jurisdiction with the military courts or general courts-martial over
soldiers of the Armed Forces of the Philippines.
Civil courts have jurisdiction over the offense of malversation
(Art. 217) committed by an army finance officer. (People vs. Livara,
G.R. No. April 20, 1954)
Even in times war, the civil courts have concurrent jurisdiction
with the military courts or general courts-martial over soldiers of the
Philippine Army, provided that in the place of the commission of the
crime no hostilities are in progress and civil courts are functioning.
(Valdez vs. Lucero, 76 Phil. 356)

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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

The Revised Penal Code or other penal law is not applicable

when the military court takes cognizance of the case.
When the military court takes cognizance of the case involving
a person subject to military law, the Articles of War apply, not the
Revised Penal Code or other penal law.
"By their acceptance of appointments as officers in the
Area from the General Headquarters of the 6th Military District,
the who were civilians at the outbreak of the war, became
members of the Philippine Army amenable to the Articles of War."
(Ruffy, et al. vs. Chief of Staff, et 75 Phil. 875)

Jurisdiction of military courts.

Section 1 of Rep. Act No. 7055 reads in full:

"Section Members of the Armed Forces of the Philippines

and other persons subject to military law, including members
of the Citizens Armed Forces Geographical Units, who commit
crimes or offenses penalized under the Revised Penal Code, other
special penal laws, or local government ordinances, regardless
of whether or not civilians are co-accused, victims, or offended
parties which may be natural or juridical persons, shall be tried
by the proper civil court, except when the offense, as determined
before arraignment by the civil court, is service-connected, in
which case the offense shall be tried by court-martial: Provided,
That the President of the Philippines may, in the interest of
justice, order or direct at any time before arraignment that any
such crimes or offenses be tried by the proper civil courts.

"As used in this Section, servi ce- connected crimes or

offenses shall be limited to those in Articles 54 to 70,
Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act
No. 408, as amended.
"In imposing the penalty for such crimes or offenses, the
court-martial may take into consideration the penalty prescribed
therefor in the Revised Penal Code, other special laws, or local
government ordinances."
The second paragraph of the above provision explicitly specifies
what are considered "service-connected crimes or offenses" under
Commonwealth Act No. 408 (CA 408), as amended, also known as the

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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

Articles of War, to wit: those under Articles 54 to 70, Articles 72 to 92,

and Articles 95 to 97 of Commonwealth Act No. 408, as amended.
Rep. Act No. 7055 did not divest the military courts of jurisdiction
to try cases involving violations of Articles 54 to 70, Articles 72 to 92
and Articles 95 to 97 of the Articles of War as these are considered
"service-connected crimes or offenses." In fact, it mandates that these
shall be tried by the court-martial.

In view of the clear mandate of Rep. Act No. 7055, the Regional
Trial Court cannot divest the General Court-Martial of its jurisdic-
tion over those charged with violations of Articles 63 (Disrespect
Toward the President etc.), 64 (Disrespect Toward Superior Officer),
67 (Mutiny or Sedition), 96 (Conduct Unbecoming an Officer and a
Gentleman) and 97 (General Article) of the Articles of War, as these
are specifically included as "service-connected offenses or crimes"
under Section 1 thereof. Pursuant to the same provision of law,
the military courts have jurisdiction over these crimes or offenses.
(Navales, et. al. vs. Abaya, et. G.R. Nos. 162318-162341, Oct. 25,
2004)

The prosecution of an accused before a court-martial is a

bar to another prosecution of the accused for the same
offense.
A court-martial is a court, and the prosecution of an accused
before it is a criminal, not an administrative case, and therefore it
would be, under certain conditions, a bar to another prosecution of
the accused for the same offense, because the latter would place the
accused in double jeopardy. (Marcos and Concordia vs. Chief of Staff,
AFP, 89 Phil. 246)

Offenders accused of war crimes are by military

com- mission.
The petitioner is a Filipino citizen though of a Japanese father,
and associating himself with Japan in the war against the United
States of America and the Philippines, committed atrocities against
unarmed and non-combatant Filipino civilians and looted Filipino
property. He is, indeed, a war criminal subject to the jurisdiction of
the military commission. (Cantos vs. Styer, 76 Phil. 748)
Executive Order No. 68 of the President of the Philippines
establishing a National War Crimes Office and prescribing rules
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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

and regulations governing the trial of war criminals is valid and

constitutional, the President of the Philippines having acted in
conformity with the generally accepted principles and policies of
international law which are part of our Constitution. The promulgation
of said executive order is an exercise by the President of his powers
as Commander-in-Chief of all our armed forces.

"War is not ended simply because hostilities have ceased. After

cessation of armed hostilities, incidents of war may remain pending
which should be disposed of as in time of A military commission
"has jurisdiction so long as a technical state of war continues." This
includes the period of an armistice, or military occupation, up to
the effective date of a treaty of peace. (Kuroda vs. Jalandoni, et
83 Phil. 171; Cowles, Trial of War Criminals by Military Tribunals,
American Bar Association, June, 1944)

Exceptions to the general application of Criminal Law.

There are cases where our Criminal Law does not apply even
if the crime is committed by a person residing or sojourning in the
Philippines. These constitute the exceptions.
The opening sentence of Article 2 of the Revised Penal Code
says that the provisions of this Code shall be enforced within the
Philippine Archipelago, "except as provided in the treaties and laws
of preferential
Article 14 of the new Civil Code provides that penal laws and
those of public security and safety shall be obligatory upon all who
live or sojourn in Philippine territory, subject to the principles public
international law and to treaty stipulations.

Treaties or treaty stipulations.

An example of a treaty or treaty stipulation, as an exception to
the general application of our criminal law, is the Bases Agreement
entered into by and between the Republic of the Philippines and the
United States of America on March 14, 1947 (which expired on 16
September 1991), stipulating that Philippines consents that
the United States have the right to exercise jurisdiction over the fol-
lowing offenses:

(a) Any offense committed by any person within any base,

except where the offender and the offended party are both

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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

Philippine citizens (not members of the armed forces of the

United States on active duty) or the offense is against the
security of the Philippines;
(b) Any offense committed outside the bases by any member of
the armed forces of the United States in which the offended
party is also a member of the armed forces of the United
States; and
(c) Any offense committed outside the bases by any member of
the armed forces of the United States against the security
the United States."

Under the Agreement between the United States of America and

the Republic of the Philippines Regarding the Treatment of United
States Armed Forces Visiting the Philippines which was signed on
10 February 1998 Visiting Forces Accord"), the Philippines
agreed that:

(a) US military authorities shall have the right to exercise

within the Philippines all criminal and disciplinary juris-
diction conferred on them by the military law of the US
over US personnel in RP;
(b) US authorities exercise exclusive jurisdiction over US
personnel with respect to offenses, including offenses
relating to the security of the US punishable under the
law of the US, but not under the laws of RP;
(c) US military authorities shall have the primary right to
exercise jurisdiction over US personnel subject to the
military law of the US in relation to: (1) offenses solely
against the property or security of the US or offenses
solely against the property or person of US personnel;
and (2) offenses arising out of any act or omission done in
performance of official duty.

Law of preferential application.

Example of a law of preferential application.
Rep. Act No. 75 may be considered a law of preferential
application in favor of diplomatic representatives and their
domestic servants.

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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

It is a law to penalize acts which would impair the proper

observance by the Republic and inhabitants of the Philippines of
the immunities, rights, and privileges of duly accredited foreign
diplomatic representatives in the Philippines. Its pertinent
provisions are:
"SEC. 4. Any writ or process issued out or prosecuted by
any person in any court of the Republic of the Philippines, or
by any judge or justice, whereby the person of any ambassador
or public minister of any foreign State, authorized and received
as such by the President, or any domestic or domestic servant of
any such ambassador or minister is arrested or imprisoned, or
his goods or chattels are distrained, seized or attached, shall be
deemed and every person by whom the same is obtained or
prosecuted, whether as party or as attorney, and every officer
concerned in executing it, shall, upon conviction, be punished
by imprisonment for not more than three years and a fine of not
exceeding two hundred pesos in the discretion of the court."

Exceptions:
"SEC. 5. The provisions of Section four hereof shall not
apply to any case where the person against whom the process is
issued is a citizen or inhabitant of the Republic of the
in the service of an ambassador or a public minister, and the
process is founded upon a debt contracted before he entered upon
such service; nor shall the said section apply to any case where
the person against whom the process is issued is a domestic
servant of an ambassador or a public minister, unless the name
of the servant has, before the issuing thereof, been registered
in the Department of Foreign Affairs, and transmitted by the
Secretary of Foreign Affairs to the Chief of Police of the City of
Manila, who shall upon receipt thereof post the same in some
public place in his office. All persons shall have resort to the list
of names so posted in the office of the Chief of Police, and may
take copies without fee."

Not applicable when the foreign country adversely affected does

not provide similar protection to our diplomatic representa-
tives.

The provisions of this Act shall be applicable only

in cases where the country of the diplomatic or consular repre-

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 CRIMINAL IN GENERAL
Characteristics of Criminal Law

sentative adversely affected has provided for similar protection

to duly accredited diplomatic or consular representatives of the
Republic of the Philippines by prescribing like or similar penal-
ties for like or similar offenses herein

Persons exempt from the operation of our criminal laws by

virtue of the principles of public international law.
The following are not subject to the operation of our criminal
laws:
Sovereigns and other chiefs of state.
(2) Ambassadors, ministers plenipotentiary, ministers resi-
dent, and charges d'affaires.
It is a wel l - established principle of international law that
diplomatic representatives, such as ambassadors or public ministers
and their official retinue, possess i m mu n i t y from the criminal
jurisdiction of the country of their sojourn and cannot be sued, arrested
or punished by the law of that country. (II Hyde, International Law,
2nd 1266)

A consul is not entitled to the privileges and immunities of

an ambassador or minister.
It is well-settled that a consul is not entitled to the privileges
and immunities of an ambassador or minister, but is subject to
the laws and regulations of the country to which he is accredited.
vs. Moran, 63 Phil. 250)
In the absence of a treaty to the contrary, a consul is not exempt
from criminal prosecution for violations of the laws of the country
where he resides.
Consuls, vice-consuls and other commercial representatives of
foreign nations do not possess the status of, and cannot claim the
privileges and immunities accorded to ambassadors and ministers.
(Wheaton, International Law, Sec. 249)
II. TERRITORIAL, in that criminal laws undertake to punish
crimes committed within Philippine territory.
The principle of territoriality means that as a rule, penal laws
of the Philippines are enforceable only within its territory.

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 CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law

Extent of Philippine territory for purposes of criminal law.

Article 2 of the Revised Penal Code provides that the provisions
of said code shall be enforced within the Philippine Archipelago,
including its atmosphere, its interior waters and maritime zone.
Article I of the 1987 Constitution provides that the national
territory comprises the Philippine archipelago, with all the islands
and waters embraced therein, and all other territories over which
the Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial, and aerial domains, including its territorial sea,
the seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part
of the internal waters of the Philippines.

Exceptions to the territorial application of criminal law.

The same Article 2 of the Revised Penal Code provides that
its provisions shall be enforced outside of the jurisdiction of the
Philippines against those who:
1. Should commit an offense while on a Philippine ship or
airship;
2. Should forge or counterfeit any coin or currency note of
the Philippines or obligations and securities issued by the
Government of the Philippines;
Should be liable for acts connected with the introduction
into the Ph ilipp ines of the obligations and securities
mentioned in the preceding number;
4. While being public officers or employees, should commit
an offense in the exercise of their functions; or
Should commit any of the crimes against national security
and the law of nations, defined in Title One of Book Two
of the Revised Penal Code.
III. PROS PE CT IVE , in that a penal law cannot make an act
punishable in a manner in which it was not punishable when
committed. As provided in Article 366 of the Revised Penal Code,
crimes are punished under the laws in force at the time of their
commission.

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 CRIMINAL LAW IN GENERAL
Different Effects of Repeal of Penal Law

Exceptions to the prospective application of criminal laws.

Whenever a new statute dealing with crime establishes con-
ditions more lenient or favorable to the accused, it can be given a
retroactive effect.
But this exception has no application:

Where the new law is expressly made inapplicable to pend-

ing actions or existing causes of action. (Tavera vs. Valdez,
1 Phil. 463 , 470-471)
2. Where the offender is a habitual criminal under Rule 5,
Article 62 , Revised Penal Code. (Art. 22, RPC)

Different effects of repeal of penal law.

1. If the repeal makes the penalty lighter in the new law,
the new law shall be applied, except when the offender
is a habitual delinquent or when the new law is made
not applicable to pending action or existing causes of
action.

2. If the new law imposes a heavier penalty, the law in force

at the time of the commission of the offense shall be
applied.
3. If the new law totally repeals the existing law so that the
act which was penalized under the old law is no longer
punishable, the crime is obliterated.

When the repeal is absolute the offense ceases to be crimi-

nal.

People vs.
(61 Phil. 225)

Facts: The accused was prosecuted for and convicted of a

violation of an ordinance. While the case was pending appeal, the
ordinance was repealed by eliminating the section under which the
accused was being prosecuted.
Ruling: The repeal is absolute. Where the repeal is absolute,
and not a or repeal by implication, the ceases to
be criminal. The accused must be acquitted.

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 CRIMINAL LAW IN GENERAL
Different Effects of Repeal of Penal Law

But repeal of a penal law by its reenactment, even without a

saving clause, would not destroy criminal liability. (U.S. vs. Cuna, 12
Phil. 241)

When the new law and the old law penalize the same
offense, the offender can be tried under the old law.
U.S. vs. Cuna
(12 Phil. 241)

Facts: The accused was charged with selling opium in violation

of Act No. 1461 of the Philippine Commission. During the pendency of
the case, Act No. 1761 took effect repealing the former law, but both Act
No. 1461 and Act No. 1761 penalize offenses against the opium laws.
Ruling: Where an Act of the Legislature which penalizes an of-
fense repeals a former Act which penalized the same offense, such repeal
does not have the effect of thereafter depriving the courts of jurisdiction
to try, convict, and sentence offenders charged with violations of the
old law prior to its repeal.

The penalty prescribed by Act No. 1761 is not more favorable

to the accused than that prescribed in Act No. 1461, the penalty in
both Acts being the same.

When the repealing law fails to penalize the offense

under the old law, the accused cannot be convicted under
the new law.

People vs. Sindiong and Pastor

(77 Phil. 1000)

Facts: The accused was prosecuted for neglecting to make a return

of the sales of newspapers and magazines within the time prescribed
by certain sections of the Revised Administrative Code. Said sections
of the Revised Administrative Code were repealed by the National
Internal Revenue Code which does not require the making of return
of sales of newspapers and magazines.
Ruling: The court loses jurisdiction where the repealing law
wholly fails to penalize the act and penalized as an offense in
the old law. The accused, charged with violations of the old law prior
to the repeal, cannot be legally prosecuted after such repeal.

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 CRIMINAL LAW IN GENERAL
Different Effects of Repeal of Penal Law

The provisions of said sections of the Revised Administrative

Code were not reenacted, even substantially, in the National Internal
Revenue Code.

A person erroneously accused and convicted under a

repealed statute may be punished under the repealing
statute.
The accused was charged with having failed to pay the salary
of Cabasares whom he employed as master fisherman in his motor
launch from June 26 to October 12, 1952. He was convicted under
Com. Act No. 303 , which was repealed by Rep. Act No. 602, approved
on April 16, 1951, and became effective 120 days thereafter. The
subject-matter of Com. Act No. 303 is entirely covered by Rep. Act No.
602 with which its provisions are inconsistent. It was held that the
fact that the offender was erroneously accused and convicted under
a statute which had already been repealed and therefore no longer
existed at the time the act complained of was committed does not
prevent conviction under the repealing statute which punishes the
same act, provided the accused had an opportunity to defend himself
against the charge brought against him. (People vs. Baesa, C.A., 56
O.G. 5466)

A new law which omits anything contained in the old law

dealing on the same subject, operates as a repeal of anything
not so included in the amendatory act.
Th e A g r i c u l t u r a l Lan d Refor m Code s u p e r s e d e d th e
Agricultural Tenancy Law (except as qualified in Sections 4 and
35 of the Code). The Code instituted the leasehold system and
abolished share tenancy subject to certain conditions indicated in
Section 4 thereof. It is significant that Section 39 is not reproduced
in the Agricultural Land Reform Code whose Section 172 repeals
"all laws or part of any law inconsistent with" its provisions. Under
the leasehold system, the prohibition against pre-threshing has no
more etre because the lessee is obligated to pay a fixed
rental as prescribed in Section 34 of the Agricultural Land Reform
Code, or the Code of Agrarian Reforms, as redesignated in R.A.
No. 6389 which took effect on September 10, 1971. Thus, the legal
maxim, cessante ratione cessat ipsa lex (the reason for the law
ceasing, the law itself also ceases), applies to this case. (People vs.
Almuete, 69 SCRA 410)
17
 CRIMINAL LAW IN GENERAL
Construction of Penal Laws

Self-repealing law.
The anomalous act attributed to Pedro de Reyes as described
in the information is undoubtedly a violation of Republic Act No. 650
being a "material misrepresentation in any document required" by
said Act "or the rules and regulations issued thereunder" and was
committed while said Act was in force. It was punishable under
Section 18 of said Act with fine or imprisonment, or both, and with
forfeiture of the goods or commodities imported in violation thereof.
(Sec. 18, R.A. No. 650) But since Rep. Act No. 650 expired by its own
limitation on June 30, 1953, the forfeiture therein provided could
no longer be subsequently enforced. And, as correctly stated by the
Undersecretary of Justice in his Opinion No. 138, dated July
"the jurisdiction of the Commissioner of Customs to proceed with
the forfeiture of goods and commodities imported in violation of the
Import Control Law was lost and that all proceedings of forfeiture,
as well as criminal actions pending on June 30, 1953, abated with
the expiration of Republic Act No. 650."

The falsification or misrepresentation allegedly committed on the

import license could no longer be a basis for the penalty of forfeiture
at the time of the release of goods. Where an act expires by its own
limitation, the effect is the same as though it had been repealed at the
time of its expiration; and it is a recognized rule in this jurisdiction
that the repeal of a law carries with it the deprivation of the courts
of jurisdiction to try, convict and sentence persons charged with
violation of the old law prior to the repeal. (People vs. Jacinto, C.A.,
54 O.G. 7587)

Construction of penal laws.

Penal laws are strictly construed against the Government
and liberally in favor of the accused. (U.S. vs. Abad Santos,
36 Phil. 243; People vs. Yu Hai, 99 Phil. 728) The rule that
penal statutes should be strictly construed against the
State may be invoked only where the law is ambiguous
and there is doubt as to its interpretation. Where the law
is clear and unambiguous, there is no room for the applica-
tion of the rule. (People vs. Gatchalian, 104 Phil. 664)
2. In the construction or interpretation of the provisions of
the Revised Penal Code, the Spanish text is controlling,

18
 CRIMINAL LAW IN GENERAL
Construction of Penal Laws

because it was approved by the Philippine Legislature in

its Spanish text. (People vs. Manaba, 58 Phil. 665, 668)

People vs. Garcia

(94 Phil. 814, 815)

Facts: Accused Garcia was prosecuted for having sold tickets for
"Have" races of the Philippine Charity Sweepstakes, in violation of Act
4130, as amended by Commonwealth Act No. 301, which penalizes any
person who, without being a duly authorized agent of the Philippine
Charity Sweepstakes, sold tickets of said corporation. The tickets sold
by the accused were different from, and not, the tickets issued by said
corporation. The law relied upon does not include tickets for
Sweepstakes races.
Held: The accused must be acquitted, the act imputed to him not
being punished by Act 4130, as amended.

No person should be brought within the terms of criminal

statutes who is not clearly within them, nor should any act be
pronounced criminal which is not clearly made so by the statute.
(U.S. vs. Abad Santos, 36 Phil. 243 , 246)

People vs. Mangulabnan

(99 Phil. 992, 998)

Facts: During the robbery in a dwelling house, one of the culprits

fired his gun upward in the ceiling, not knowing that there was a person
in the ceiling of the house. The owner of the house who was up in the
ceiling was hit by the slug that passed through it and was killed.
Art. 294, par. 1, of the Revised Penal Code provides, according
to its English text, that the crime is robbery with homicide "when by
reason or on occasion of the robbery the crime of homicide shall have
been committed."
The Spanish text of the same provision reads, as follows: "Cuando
con o con ocasion del robo homicidio."
Held: In view of the Spanish text which must prevail, the crime
committed is robbery with homicide, even if the homicide supervened
by mere accident.

While the English text of Art. 294, par. 1, of the Revised Penal
Code seems to convey the meaning that the homicide should be

19
 CRIMINAL LAW IN GENERAL
Construction of Penal Laws

intentionally committed, the Spanish text means that it is sufficient

that the homicide shall have resulted, even if by mere accident.

Other cases of incorrect translation of the Spanish text

into the English text.
1. "sosteniendo combate" into in war" in Art. 135.
(People vs. 100 Phil. 90, 95-96)

2. privacion de into "imprisonment" in

Art. 157. (People vs. Abilong, 82 Phil. 172, 174)
delito" into crime" in the headnote of Art.
160. (People vs. Yabut, 58 Phil. 499, 504)
4. "semilla into "cereal" in Art. 303. (People vs.
Mesias, 65 Phil. 267, 268)
5. "filed" in the third paragraph of Art. 344 which is not
found in the Spanish text. (People vs. Manaba, 58 Phil.
665, 668)

- oOo -

20
 THE REVISED PENAL CODE

(Act No. as amended)

AN ACT REVISING THE PENAL CODE
AND OTHER PENAL LAWS
Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of
the same.
PRELIMINARY ARTICLE - This law shall be known T h e Revised
Penal Code."

BOOK ONE
General Provisions Regarding the Date of En-
forcement and the Application of the Provisions of
this Code, and Regarding the Offenses, the Persons
Liable and the Penalties

Preliminary Title
DATE OF AND APPLICATION
OF THE PROVISIONS OF THIS CODE

History of the Revised Penal Code.

This Code is called "Revised Penal Code," because the Committee
which was created by Administrative Order No. 94 of the Department

21
 HISTORY OF THE REVISED PENAL CODE

of Justice, dated October 18, 1927, composed of Diaz, as

chairman, and Quintin Paredes, Guillermo Guevara, Alex Reyes
and Mariano H. de Joya, as members, was instructed to revise the
old Penal Code, taking into consideration the existing conditions,
the special penal laws and the rulings laid down by the Supreme
Court.
The Committee did not undertake the codification of all penal
laws in the What the Committee did was merely to revise
the old Penal Code and to include in the draft the other penal laws
related to it.
The Revised Penal Code does not embody the latest progress of
criminal science, as the results of the application of advanced and
radical theories "still remain to be
The old Penal Code, which was revised by the Committee, took
effect in the Philippines on July 14, 1887, and was in force up to
December 31 , 1931.
In the case of U.S. vs. 31 Phil. 321 , 323 , the
Supreme Court traced the history of the old Penal Code, as fol-
lows:
"The royal order dated December 17, 1886, directed the
execution of the royal decree of September 4, 1884, wherein it
was ordered that the Penal Code in force in the Peninsula, as
amended in accordance with the recommendations of the code
committee, be published and applied in the Philippine Islands
(This law) having been published in the Official Gazette
of Manila on March 13 and 14, 1887, became effective four
months thereafter."

The Revised Penal Code, as enacted by the Philippine Legisla-

ture, was approved on December 8, 1930. It took effect on January
1, 1932. Felonies and misdemeanors, committed prior to January 1,
1932, were punished in accordance with the Code or Acts in force at
the time of their commission, as directed by Art. 366 of the Revised
Penal Code.

The Revised Penal Code consists of two books.

The Revised Penal Code consists of two books, namely: Book
One, and (2) Book Two.

22
 DATE OF EFFECTIVENESS OF THE Art 1
REVISED PENAL CODE

Book One consists of two parts: (a) basic principles affecting

criminal liability (Arts. 1-20), and (b) the provisions on penalties
including criminal and civil liability (Arts. 21-113).
In Book Two are defined felonies with the corresponding
penalties, classified and grouped under fourteen different titles (Arts.
114-365).

Date of Effectiveness.
A r t i c l e 1. Time when Act takes effect. — Thi s Cod e sh al l
tak e effect o n th e f i r s t da y o f J a n u a r y , n i n e t e e n h u n d r e d an d
t h i r t y - two .

The Revised Penal Code is based mainly on principles of the

classical school.
This Revised Penal Code continues, like the old Penal Code,
to be based on the principles of the old or classical school, although
som e p r ov i si on s o f e m i n e n t l y p o s i t i vi s t i c t e n d e n c i e s (th ose
having reference to the punishment of impossible crimes, juvenile
delinquency, etc.) were incorporated in the present Code.

Two theories in Criminal Law.

There are two important theories in criminal law: (1) the classical
theory, and (2) the theory.

Characteristics of classical theory.

1. The basis of criminal liability is human free will and the
purpose of the penalty is retribution.
2. . That ma n is e s s e n t i a l l y a moral creatu re with
an absolutely free will to choose between good and
evil, thereby placing more stress upon the effect or
result of the felonious act than upon the man, the
criminal himself.
3. It has endeavored to establish a mechanical and direct
proportion between crime and penalty.

23
 Art. 2 APPLICATION OF ITS PROVISIONS

4. There is a scant regard to the human element. (Basic

Principles, Rationale, p. 2, by the Code Commission on
Code of Crimes)

Characteristics of the positivist theory.

That man is subdued occasionally by a strange and morbid
phenomenon which constrains him to do wrong, in spite of
or contrary to his volition.
That crime is essentially a social and natural phenomenon,
and as such, it cannot be treated and checked by the
application of abstract principles of law and jurisprudence
nor by the imposition of a punishment, fixed and determined
a but rather through the enforcement of individual
measures in each particular case after a thorough, personal
and individual investigation conducted by a competent
body of psychiatrists and social scientists.

(Basic Principles, Rationale, pp. 2 and 3, by the Code Commission

on Code of Crimes)

Art. 2. Application of its provisions. — E x c e p t as p r o v i d e d

i n th e t r e a t i e s an d l a w s o f p r e f e r e n t i a l a p p l i c a t i o n , th e
p r o v i s i o n s o f thi s Cod e sh al l b e e n f o r c e d no t onl y w i t h i n th e
P h i l i p p i n e A r c h i p e l a g o , i n c l u d i n g it s a t m o s p h e r e , its i n te ri o r
w a t e r s an d m a r i t i m e z on e , bu t als o o u t s i d e o f it s j u r i s d i c t i o n
, a g a i n s t t h o s e wh o :

S h o u l d c o m m i t an offen s e w h i l e on a P h i l i p p i n e shi
p o r a i r sh i p ;
2. S h o u l d forg e o r c o u n t e r f e i t an y coi n o r c u r r e n c
y n o t e o f th e P h i l i p p i n e I s l a n d s o r o b l i g a t i o n
s an d s e c u r i t i e s i s s u e d b y th e G o v e r n m e n t o f th e
P h i l i p p i n e I s l an d s ;
3 . S h o u l d b e l i a b l e fo r a c t s c o n n e c t e d w i t h th e
i n t r o d u c t i o n int o t h e s e Isl an d s o f th e o b l i g a t i o n s an
d s e c u r i t i e s m e n t i o n e d i n th e p r e c e d i n g n u m b e r ;
4 . While b e i n g p ub l i c officers or e m p l o y e e s , sh ou l d com-
mi t a n offen se i n th e e x e r c i s e o f th ei r fu n ct i o n s ; o r

24
 APPLICATION OF ITS PROVISIONS Art. 2

5. S h o u l d c o m m i t an y o f th e c r i m e s a g a i n s t n a t i o n a l
s e c u r i t y an d th e la w o f n a t i o n s , d ef i n e d i n Title On
e o f B o o k Tw o o f thi s Cod e .

Scope of the application of the provisions of the Revised

Penal Code.
The provisions of the Revised Penal Code shall be enforced not
only within the Philippine Archipelago, but also outside of its juris-
diction in certain

The five paragraphs of Art. 2 treat of the application of the

Revised Penal Code to acts committed in the air, at sea, and even in
a foreign country when such acts affect the political or economic life
of the nation.

In what cases are the provisions of the Revised Penal

Code applicable even if the felony is committed outside of
the Philippines?
They are applicable in the following cases:

1. When the offender should commit an offense while on a

Philippine ship or airship.
The Philippine vessel, although beyond three miles from
the seashore, is considered part of the national territory.
Thus, any person who committed a crime on board a
Philippine ship or airship while the same is outside of the
Philippine territory can be tried before our civil courts for
violation of the Penal Code.
But when the Philippine vessel or aircraft is in the territory
of a foreign country, the crime committed on said vessel or
aircraft is subject to the laws of that foreign country.
A Philippine vessel or aircraft must be understood as that
which is registered in the Philippine Bureau of Customs.
It is the registration of the vessel or aircraft in accordance
with the laws of the Philippines, not the citizenship of its owner,
which makes it a Philippine ship or airship. A vessel or aircraft

25
Art. 2 APPLICATION OF ITS PROVISIONS

which is unregistered or unlicensed does not come within the

purview of paragraph No. 1 of Art. 2.
Thus, if a crime is committed ten miles from the shores
of the Philippines on board a vessel belonging to a Filipino,
but the same is not registered or licensed in accordance with
the laws of the Philippines, paragraph No. 1 of Art. 2 is not
applicable.
The Philippine court has no jurisdiction over the crime of
theft committed on the high seas on board a vessel not registered
or licensed in the Philippines. (U.S. vs. Fowler, 1 Phil. 614)
2. When the offender should forge or counterfeit any coin
or currency note of the Philippines or obligations and
securities issued by the Government.
Thus, any person who makes false or counterfeit coins
(Art. 163) or forges treasury or bank notes or other obligations
and securities (Art. 166) in a foreign country may be prosecuted
before our civil courts for violation of Art. or Art. 166 of the
Revised Penal Code.
When the offender should be liable for acts connected with
the introduction into the Philippines of the obligations and
securities mentioned in the preceding number.
The reason for this provision is that the introduction
of forged or counterfeited obligations and securities into the
Philippines is as dangerous as the forging or counterfeiting of
the same, to the economical interest of the country.

4. When the offender, while being a public officer or employee,

should commit an offense in the exercise of his functions.
The crimes that may be committed in the exercise of public
functions are direct bribery (Art. 210), indirect bribery (Art.
frauds against the public treasury (Art. 213), possession
of prohibited interest (Art. 216), malversation of public funds
or property (Art. 217), failure of accountable officer to render
accounts (Art. 218), illegal use of public funds or property (Art.
220), failure to make delivery of public funds or property (Art.
and falsification by a public officer or employee committed
with abuse of his official position. (Art. 171)

26
 APPLICATION OF ITS PROVISIONS Art. 2

When any of these felonies is committed abroad by any

of our public officers or employees while in the exercise of his
he can be prosecuted here.

When the offender should commit any of the crimes against

the national security and the law of nations.
The crimes against the national security and the law of
nations are treason (Art. conspiracy and proposal to commit
treason (Art. 115), espionage (Art. 117), inciting to war and
giving motives for reprisals (Art. violation of neutrality
(Art. correspondence with hostile country (Art. 120), flight
to country (Art. 121), and piracy and mutiny on the high
seas. (Art. 122)

The crimes punishable in the Philippines under Art. 2 are

cognizable by the Regional Trial Court in which the charge
is
The crimes committed outside of the Philippines but punishable
therein under Article 2 of the Revised Penal Code shall be cognizable
by the Regional Trial Court in which the charge is first filed. (Rule
110, Sec. 15[d], Revised Rules of Criminal Procedure)
Regional Trial Courts (formerly have original jurisdic-
tion over all crimes and offenses commited on the high seas or
beyond the jurisdiction of any country on board a ship or warcraft
of any kind registered or licensed in the Philippines in accord-
ance with its laws. (Sec. 44[g], Judiciary Act of 1948 , Rep. Act
No. 296 )

IMPORTANT WORDS AND PHRASES IN ART. 2

1. "Except as provided in the treaties and laws of preferential
application."
This phrase means that while the general rule is that
the provisions of the Revised Penal Code shall be enforced
against any person who violates any of its provisions while
living or sojourning in the Philippines, the exceptions
to that rule may be provided by the treaties and laws of
preferential applications, like the RP-US Visiting Forces
Accord, the Military Bases Agreement between the Republic

27
Art. 2 APPLICATION OF ITS PROVISIONS

of the Philippines and the United States of America, and

the provisions of Rep. Act No. 75.
2. "its atmosphere."
The sovereignty of the and therefore
its penal laws extend to all the air space which covers its
territory, subject to the right of way or easement in favor
of foreign aircrafts.
3. "interior waters."
The phrase "interior waters" includes creeks, rivers,
lakes and bays, gulfs, straits, coves, inlets and roadsteads
lying wholly within the three-mile limit.
4. "maritime zone."
The States by means of treaties have fixed its length
to three miles from the coastline, starting from the low
water mark.
It includes those parts of the sea
or recesses in the coastline whose width at their entrance
is not more than twelve miles measured in a straight line
from headland to headland, and all straits less than six
miles wide.
For those straits having more than that width, the
space in the center outside of the marine league limits is
considered as open sea. (Opinion of Attorney General, Jan.

Crimes committed on board foreign merchant ship or airship.

Just as our merchant ship is an extension of our territory,
foreign merchant ship is considered an extension of the territory of
the country to which it belongs. For this reason, an offense commited
on the high seas on board a foreign merchant vessel is not triable by
our courts. (U.S. vs. Fowler, 1 Phil. 614)

Continuing offense on board a foreign vessel.

But a continuing crime committed on board a Norwegian
merchant vessel sailing from Formosa to the Philippines, by failing

28
 APPLICATION OF ITS PROVISIONS Art. 2

to provide stalls for animals in transit in violation of Act No. 55, is

triable in the Philippines.
The offense of failing to provide suitable means for securing
animals while transporting them on a (foreign) ship from a foreign
port to a port of the Philippines is within the jurisdiction of the courts
of the Philippines when the forbidden conditions existed during the
time the ship was within territorial waters, regardless of the fact that
the same conditions existed when the ship sailed from the foreign
port and while it was on the high seas. (U.S. vs. Bull, 15 Phil. 7)

Offense committed on board a foreign merchant vessel

while on Philippine waters is triable before our court.
Since the Philippine territory extends to three miles from the
headlands, when a foreign merchant vessel enters this three-mile limit,
the ship's officers and crew become subject to the jurisdiction of our
courts. The space within 3 miles of a line drawn from the headlands
which embrace the entrance to Manila Bay is within territorial
(U.S. vs. Bull, 15 Phil. 7, 17-18)

Rules as to jurisdiction over crimes committed aboard foreign

merchant vessels.
There are two rules as to jurisdiction over crimes committed
aboard merchant vessels while in the territorial waters of another
country.
French Rule. — Such crimes are not triable in the courts of that
country, unless their commission affects the peace and security of the
territory or the safety of the state is endangered.
English Rule. — Such crimes are triable in that country, unless
they merely affect things within the vessel or they refer to the internal
management thereof.
In this country, we observe the English Rule.
According to the French theory and matters happening
on board a merchant ship which do not concern the tranquility of the
port or persons foreign to the crew, are justiceable only by the courts of
the country to which the vessel belongs. The French courts therefore
claim exclusive jurisdiction over crimes committed on board French
merchant vessels in foreign ports by one member of the crew against

29
Art. 2 APPLICATION OF ITS PROVISIONS

another. Such jurisdiction has never been admitted or claimed by

Great Britain as a right, although she has frequently conceded it by
treaties. (U.S. vs. Bull, 15 Phil. 7, 14)

Do the Philippine courts have jurisdiction over the crime

of homicide committed on board a foreign merchant
vessel by a member of the crew against another?
Disorders which disturb only the peace of the ship or those on
board are to be dealt with exclusively by the sovereignty of the home of
the ship, but those which disturb the public peace may be suppressed,
and, if need be, the offenders punished by the proper authorities of
the local jurisdiction.
It may not be easy at all times to determine to which of the
two jurisdictions a particular act of disorder belongs. Much will
undoubtedly depend on the attending circumstances of the particular
case, but all must concede that felonious homicide is a subject for the
local jurisdiction, and that if the proper authorities are proceeding
with the case in the regular way, the consul has no right to interfere
to prevent it. (Mali and Wildenhus vs. Keeper of the Common Jail,
120 U.S. 1, cited in People vs. Wong Cheng, 46 Phil. 729, 731-732)

Crimes not involving a breach of public order committed

on board a foreign merchant vessel in transit not triable by
our courts.
Mere possession of opium aboard a foreign merchant vessel in
transit is not triable in Philippine courts, because that fact alone
does not constitute a breach of public order. The reason for this
ruling is that mere possession of opium on such a ship, without
being used in our territory, does not bring about in this country
those disastrous effects that our law contemplates avoiding. But
said courts acquire jurisdiction when the tins of opium are landed
from the vessel on Philippine soil. Landing or using opium is an
open violation of the laws of the Philippines. (U.S. vs. Look Chaw,
18 Phil. 573 , 577-578)
When the foreign merchant vessel is not in transit because the
Philippines is its terminal port, the person in possession of opium on
board that vessel is liable, because he may be held guilty of illegal
importation of opium. (U.S. vs. Ah Sing, 36 Phil. 978, 981-982)

30
 APPLICATION OF ITS PROVISIONS Art. 2

Smoking opium constitutes a breach of public order.

Smoking opium aboard an English vessel while anchored two
and one-half miles in Manila Bay constitutes a breach of public order,
because the primary object of the law in punishing the use of opium
is to protect the inhabitants of this country against the disastrous
effects entailed by the use of such drug. And to smoke opium within
our territorial limits, even though aboard a foreign merchant ship,
is certainly a breach of the public order here established, because it
causes such drug to produce its pernicious effects within our territory.
Philippine courts have jurisdiction over crimes constituting a breach
of public order aboard merchant vessels anchored in Philippine
jurisdictional waters. (People vs. Wong Cheng, 46 Phil. 729, 733)

Philippine courts have no jurisdiction over offenses committed

on board foreign warships in territorial waters.
In case vessels are in the ports or territorial waters of a foreign
country, a distinction must be made between merchant ships and
warships; the former are more or less subjected to the territorial
(See U.S. vs. Bull, 15 Phil. 7; U.S. vs. Look Chaw, 18 Phil. 573; and
People vs. Wong Cheng, 46 Phil. 729)

Warships are always reputed to be the territory of the country

to which they belong and cannot be subjected to the laws of another
state. A United States Army transport is considered a warship. (U.S.
vs. Fowler, 1 Phil. 614)

Extra-territorial application of Republic Act No. 9372.

Rep. Act No. 9372, otherwise known as the "Human Security
Act of 2007" which was passed into law on 6 March 2007 has
territorial application.
Section 58 of Rep. Act No. 9372 provides that subject to the
provision of an existing treaty of which the Philippines is a signatory
and to any contrary provision of any law of preferential application,
the provisions of the Act shall apply:
(1) to individual persons who commit any of the crimes
defined and punished in the Act within the terrestrial
domain, interior waters, maritime zone and airspace of
the Philippines;

31
Art. 2 APPLICATION OF ITS PROVISIONS

(2) to individual persons who, although physically outside

the territorial limits of the Philippines, commit, conspire
of plot any of the crimes and punished in the Act
inside the territorial limits of the
(3) to individual persons who, although physically outside the
territorial limits of the Philippines, commit any of the said
crimes on board Philippine ship or airship;
(4) to individual persons who commit any of said crimes within
any embassy, consulate or diplomatic premises belonging
to or occupied by the Philippine government in an official
capacity;
to individual persons who, although physically outside the
(5) territorial limits of the Philippines, commit said crimes
against Philippine citizens or persons of Philippine descent,
where their citizenship or ethnicity was a factor in the
commission of the crime; and
to individual persons who, although physically outside the
(6) territorial limits of the Philippines, commit said crimes
directly against the Philippine government.

32
 Title One
FELONIES AND CIRCUMSTANCES WHICH
AFFECT CRIMINAL LIABILITY

Chapter One
FELONIES

Art. 3 . Definition. — Act s an d o m i s s i o n s p u n i s h a b l e by

la w ar e f e l o n i e s (delitos).
F e l o n i e s ar e c o m m i t t e d no t onl y b y m e a n s o f d ec ei t
bu t als o by m e a n s o f faul t (culpa).

T h er e i s d e c e i t w h e n th e ac t i s p e r f o r m e d wi t h d e l i b e r a t
e i n te n t ; an d t h e r e i s faul t w h e n th e w r o n g f u l ac t r e s u l t s fro
m i m p r u d e n c e , n e g l i g e n c e , lac k o f f o r e s i g h t , o r lac k o f skill.

Felonies, defined.
Felonies are acts and omissions punishable by the Revised Penal
Code.

Elements of felonies.
The elements of felonies in general are:
That there must be an act or omission.
That the act or omission must be punishable by the Revised
Penal Code.
3. That the act is performed or the omission incurred by
means of dolo or culpa. (People vs. Gonzales, G.R. No.
80762, March 19, 1990, 183 SCRA 309, 324)

33
Art. 3 FELONIES

IMPORTANT WORDS AN D P H R A S E S IN ART. 3 .

Meaning of the word "act."

By act must be understood any bodily movement tending to
produce some effect in the external world, it being unnecessary that
the same be actually produced, as the possibility of its production is
sufficient. (See People vs. Gonzales, supra)
But the act must be one which is defined by the Revised Penal
Code as constituting a felony; or, at least, an overt act of that felony,
that is, an external act which has direct connection with the felony
intended to be committed. (See Art. 6)

Example of felony by performing an act.

A took the watch of B with intent to gain and without the consent
of the latter. The act of taking the watch of B, with intent to gain,
constitutes the crime of theft.

Only external act is punished.

The act must be external, because internal acts are beyond the
sphere of penal law. Hence, a criminal thought or a mere intention,
no matter how immoral or improper it may be, will never constitute
a felony.

Thus, even if A entertains the idea of killing B, as long as he

does not commence the commission of the crime directly by overt act,
A is not criminally liable.

Meaning of the word "omission."

By omission is meant inaction, the failure to perform a positive
duty which one is bound to do. There must be a law requiring the
doing or performance of an act.

Examples of felony by omission:

Anyone who fails to render assistance to any person whom
he finds in an uninhabited place wounded or in danger of
dying, is liable for abandonment of persons in danger. (Art.
275, par. 1)

34
 FELONIES Art. 3

An officer entrusted with collection of taxes who voluntarily

fails to issue a receipt as provided by law, is guilty of illegal
exaction. (Art. 213 , par.
3. Every person owing allegiance to the Philippines, without
being a foreigner, and having knowledge of any conspiracy
against the government, who does not disclose and make
known the same to the proper authority, is liable for
misprision of treason. (Art. 116)

It will be noted that in felonies by omission, there is a law re-

quiring a certain act to be performed and the person required to do
the act fails to perform it.

The omission must be punishable by law.

Because there is no law that pu ni sh es a person who does
not report to the authorities the commission of a crime which he
witnessed, the omission to do so is not a felony.

People vs. and Atienza

(56 Phil. 353)

Facts: Martin Atienza was convicted as principal by direct par-

ticipation and Silvestre as accomplice of the crime of arson by
the Court of First Instance.
On the night of November 25, 1930, while Nicolas la Cruz
and his wife, de la Cruz, were gathered together with the
appellants herein after supper, Martin Atienza told said couple to
take their furniture out of the house because he was going to set fire
to it. Upon being asked by Nicolas and Antonia why he wanted to set
fire to the house, he answered that it was the only way he could be
revenged upon the people of Masocol, who, he said, had instigated
the charge of adultery against him and his co-defendant, Romana
Silvestre. As Martin Atienza was at that time armed with a pistol, no
one dared say anything to him, not even Romana Silvestre, who was
about a meter away from her co-defendant. Alarmed at what Martin
Atienza had said, the couple left the house at once to communicate
with the barrio lieutenant, Buenaventura Ania, as to what they had
just heard Martin Atienza say; but they had hardly gone a hundred
arms' length when they heard cries of Fire!" Turning back
they saw their home in flames. The fire destroyed about forty-eight
houses.

35
 Art. 3 FELONIES

Romana listened to her co-defendant's threat without raising

a protest, and did not give the alarm when the latter set fire to the
house.
Held: Mere passive presence at the scene of another's crime, mere
silence and failure to give the alarm, without evidence of agreement or
conspiracy, is not punishable.
Romana Silvestre was acquitted.

"Punishable by law."
This is the other element of a felony. This is based upon the
maxim, crimen, nulla poena sine that is, there is no
crime where there is no law punishing it.
The phrase "punished by law" should be understood to mean
"punished by the Revised Penal Code" and not by a special law.
That is to say, the term "felony" means acts and omissions punished
in the Revised Penal Code, to distinguish it from the words
and "offense" which are applied to infractions of the law punished by
special statutes.

Classification of felonies according to the means by which

they are committed.
Art. 3 classifies felonies, according to the means by which
they are committed, into (1) intentional felonies, and (2) culpable
felonies.

Thus, the second paragraph of Art. 3 states that felonies are

committed not only by means of deceit (dolo) but also by means of
fault (culpa).

Intentional felonies and culpable felonies distinguished.

In intentional felonies, the act or omission of the offender
is malicious. In the language of Art. 3, the act is performed with
deliberate intent (with malice). The offender, in performing the act
or in incurring the omission, has the intention to cause an injury to
another. In culpable felonies, the act or omission of the offender is
not malicious. The injury caused by the offender to another person is
"unintentional, it being simply the incident of another act performed
without malice." (People vs. Sara, 55 Phil. 939) As stated in Art. 3, the

36
wrongful act results from imprudence, negligence, lack of foresight
or lack of skill.

Felonies committed by means of dolo or with malice.

The word "deceit" in the second paragraph of Art. 3 is not the
proper translation of the word Dolus is equivalent to malice,
which is the intent to do an injury to another. (I Wharton's Criminal
Law 180)
When the offender, in performing an act or in incurring an
omission, has the intention to do an injury to the person, or
right of another, such offender acts with malice. If the act or omission
is punished by the Revised Penal Code, he is liable for intentional
felony.

Most of the felonies defined and penalized in Book II of the

Revised Penal Code are committed by means of dolo or with malice.
There are few felonies committed by means of fault or culpa. Art.
217 punishes malversation through negligence. Art. 224 punishes
evasion through negligence. Art. 365 punishes acts by imprudence or
negligence, which, had they been intentional, would constitute grave,
less grave or light felonies.
There are crimes which cannot be committed through impru-
dence or negligence, such as, murder, treason, robbery, and malicious
mischief.

Felonies committed by means of fault or culpa.

Between an act performed voluntarily and intentionally, and
another committed unconsciously and quite unintentionally, there
exists another, performed without malice, but at the same time
punishable, though in a lesser degree and with an equal result, an
intermediate act which the Penal Code qualifies as imprudence or
negligence.

A person who caused an injury, without intention to cause

an evil, may be held liable for culpable felony.
The defendant, who was not a medical practitioner, tied a girl,
wrapped her feet with rags saturated with petroleum and thereafter
set them on fire, causing injuries. His defense was that he undertook

37
Art. 3 FELONIES

to render medical assistance in good faith and to the best of his ability
to cure her of ulcer. It was held that while there was no intention to
cause an evil but to provide a remedy, the defendant was liable for
physical injuries through imprudence. (U.S. vs. 12 Phil. 175,
190)

Imprudence, negligence, lack of foresight or lack of skill.

Imprudence indicates a deficiency of action. Negligence indicates
a deficiency of perception. If a person fails to take the necessary
precaution to avoid injury to person or damage to property, there is
imprudence. If a person fails to pay proper attention and to use due
diligence in foreseeing the injury or damage impending to be caused,
there is negligence. Negligence usually involves lack of foresight.
Imprudence usually involves lack of skill.

Reason for punishing acts of negligence (culpa).

A man must use common sense, and exercise due reflection in all
his acts; it is his duty to be cautious, careful and prudent, if not from
instinct, then through fear of incurring punishment. He is responsible
for such results as anyone might foresee and for his acts which no one
would have performed except through culpable abandon. Otherwise,
his own person, rights and property, and those of his fellow beings,
would ever be exposed to all manner of danger and injury. (U.S. vs.
Maleza, 14 Phil. 468, 470)

In felonies committed by means of dolo or with malice and

in felonies committed by means of fault or culpa, the acts
or omissions are voluntary.
The adjective voluntary used in the old Penal Code is suppressed
in the definition of felonies in Art. 3 of the Revised Penal Code. This
omission does not mean that an involuntary act may constitute a
felony. As in the old Penal Code, the act or omission must be voluntary
and punishable by law to constitute a felony. Art. 3 classifies felonies
into intentional felonies, and (2) culpable felonies. An intentional
felony is committed when the act is performed with deliberate intent,
which must necessarily be voluntary.
On the other hand, in culpable felony, which is committed when
the wrongful act results from imprudence, negligence, lack of foresight
or lack of skill, the act is also voluntary.

38
 FELONIES Art. 3

The only difference between intentional felonies and culpable

felonies is that, in the first, the offender acts with malice; whereas,
in the second, the offender acts without malice.
The definition of reckless imprudence in Art. 365 says "reckless
imprudence consists in voluntarily, but without malice, doing or
failing to do an act from which material damage

Thus, a hunter who seemed to have seen with his lantern

something like the eyes of a deer about fifty meters from him and then
shot it, but much to his surprise, on approaching what he thought
was a deer, it proved to be his companion, performed a voluntary act
in discharging his gun, although the resulting homicide is without
malice, because he did not have the intent to kill the But the
hunter, knowing that he had two companions, should have exercised
all the necessary diligence to avoid every undesirable accident, such
as the one that unfortunately occurred on the person of one of his
companions. The hunter was guilty of the crime of homicide through
reckless imprudence (People vs. Ramirez, 48 Phil. 206)

A criminal act is presumed to be voluntary. Fact prevails over

assumption, and in the absence of indubitable explanation, the act
must be declared voluntary and punishable. (People vs. Macalisang,
22 SCRA 699)

Acts executed negligently are voluntary.

People vs. Lopez
44 O.G. 584)

Facts: Lopez was driving a truck. A girl was crossing the street
during a torrential rain. The girl was struck down by the truck. During
the trial, Lopez claimed that he had no intention of causing injury to
the girl.
Held: Lopez was not accused of intentional homicide, but of
having caused her death by reckless imprudence, which implies lack
of malice and criminal intent. Acts executed negligently are voluntary,
although done without malice or criminal design. In this case, Lopez
was not compelled to refrain or prevented from taking the precaution
necessary to avoid injury to persons.

When there is compulsion or prevention by force or intimidation,

there is no voluntariness in the act.

39
 Art. 3 FELONIES

Three reasons why the act or omission in felonies must be

voluntary.
1. The Revised Penal Code continues to be based on the
Classical Theory, according to which the basis of criminal
liability is human free will.
2. Acts or omissions punished by law are always deemed
voluntary, since man is a rational being. One must prove
that his case falls under Art. 12 to show that his act or
omission is not voluntary.
3. In felonies by dolo, the act is performed with deliberate
intent which must necessarily be voluntary; and in felonies
by culpa, the imprudence consists in but
without malice, doing or failing to do an act from which
material injury results.

Therefore, in felonies committed by means of dolo, as well as in

those committed by means of culpa, the act performed or the omis-
sion incurred by the offender is voluntary, but the intent or malice
in intentional felonies is replaced by imprudence, negligence, lack
of foresight or lack of skill in culpable felonies.

Requisites of dolo or malice.

In order that an act or may be considered as having
been performed or incurred with deliberate intent, the following
requisites must concur:
(1) He must have FREEDOM while doing an act or
omitting to do an act;
(2) He must have INTELLIGENCE while doing the act
or omitting to do the act;
(3) He must have INTENT while doing the act or omitting
to do the act.
1. Freedom. When a person acts without freedom, he is no longer
a human being but a tool; his liability is as much as that of the
knife that wounds, or of the torch that sets fire, or of the key that
opens a door, or of the ladder that is placed against the wall of
a house in committing robbery.

40
 Thus, a person who acts under the compulsion of an irresistible
force is exempt from criminal liability. (Art. 12, par. 5)

So also, a person who acts under the impulse of an uncontrollable

fear of an equal or greater injury is exempt from criminal liability
(Art. 12, par. 6)

2. Intelligence. Without this power, necessary to determine the

morality of human acts, no crime can exist. Thus, the imbecile
or the insane, and the infant under nine years of age as, well as
the minor over nine but less than fifteen years old and acting
without discernment, have no criminal liability, because they
act without intelligence. (Art. 12, pars. 1, 2 and 3)

3. Intent. Intent to commit the act with malice, being purely a

mental process, is presumed and the presumption arises from
the proof of the commission of an unlawful act.
All the three requisites of voluntariness in intentional felony
must be present, because voluntary act is a free, intelligent, and
intentional (U.S. vs. Ah Chong, 15 Phil. 488, 495)

Intent presupposes the exercise of freedom and the use of

intelligence.
One who acts without freedom necessarily has no intent to do
an injury to another. One who acts without intelligence has no such
intent.
But a person who acts with freedom and with intelligence may
not have the intent to do an injury to another. Thus, a person who
caused an injury by mere accident had freedom and intelligence, but
since he had no fault or intention of causing it, he is not criminally
liable. (Art. 12, par. 4, Revised Penal Code)

The existence of intent is shown by the overt acts of a per-

son.
Where the defendant carried away articles belonging to another
and concealed them from the owner and from the police authorities,
denying having them in his possession, in the absence of a satisfactory
explanation, it may be inferred that he acted with intent of gain.
Intent is a mental state, the existence of which is shown by the overt
acts of a person. (Soriano vs. People, 88 Phil. 368, 374)

41
Art. 3 FELONIES

Intent to kill is difficult to prove, it being a mental act. But it

can be deduced from the external acts performed by a person. When
the acts naturally produce a definite result, courts are slow in con-
cluding that some other result was intended. (U.S. vs. Mendoza, 38
Phil. 691-693; People vs. Mabug-at, 51 Phil. 967, cited in People vs.
Lao, 11 C.A. Rep. 829)

Criminal intent is presumed from the commission of an un-

lawful act.

People vs. Sia Teb Ban

(54 Phil. 52, 53)

Facts: The accused took a watch without the owner's consent.

He was prosecuted for theft. The accused alleged as a defense that the
prosecution failed to prove the intent to gain on his part, an element
of the crime of theft.
Held: From the felonious act (taking another's property) of
the accused, freely and deliberately executed, the moral and legal
presumption of a criminal and injurious intent arises conclusively and
indisputably, in the absence of evidence to the contrary.

(See: People vs. Renegado, No. May SCRA

275, 286)
Criminal intent and the will to commit a crime are always
presumed to exist on the part of the person who executes an act which
the law punishes, unless the contrary shall appear. (U.S. vs. Apostol,
14 Phil. 92, 93)

But the presumption of criminal intent does not arise the

proof of the commission of an act which is not unlawful.

U.S. vs. Catolico

(18 Phil. 504, 508)

Facts: The accused was a justice of the peace. He rendered

decisions in certain cases, each one for damages resulting from a breach
of contract, from which the defendants appealed. As required by law,
the defendants deposited and a bond for each case.
It appeared that the sureties on the said bonds were insolvent and
that the defendants did not present new bonds within the time fixed

42
 by the accused as justice of the peace. Upon petition of the plaintiffs,
the accused dismissed the appeals and ordered said sums attached and
delivered to the plaintiffs in satisfaction of the judgment. The accused
was prosecuted for malversation (a felony punishable now under Art.
217).
Held: The act of the accused, in permitting the sums deposited
with him to be attached in satisfaction of the judgment rendered by
him, was not unlawful. Everything he did was done in good faith
under the belief that he was acting judiciously and correctly. The
act of a person does not make him a criminal, unless his mind be
criminal.

The maxim is: actus facit nisi mens sit rea — a crime is
not committed if the mind of the person performing to act complained
be innocent. It is true that a presumption of criminal intent may
arise from proof of the commission of a criminal act; and the general
rule is that if it is proved that the accused committed the criminal
act charged, it will be presumed that the act was done with criminal
intention and that it is for the accused to rebut this presumption. But
it must be borne in mind that the act from which such presumption
springs must be a criminal act. In the case at bar, the act was not
criminal.

Where the facts proven are accompanied by other facts which

show that the act complained of was not unlawful, the presumption
of criminal intent does not arise.

There is no felony by dolo if there is no intent.

The presumption of criminal intent from the commission of an
unlawful act may be rebutted by proof of lack of such intent.
Thus, a minor who married without parental consent, in viola-
tion of Art. 475 of the old Penal Code which punished "any minor who
shall contract marriage without the consent of his or her parents,"
was not liable criminally, because she proved that she acted without
malice. The defendant minor testified that she believed that she was
born in 1879; that so her parents gave her to understand ever since
her tenderest age; and that she did not ask them concerning her
age, because they had already given her to so understand since her
childhood. The presumption of malice was rebutted by her testimony.
One cannot be convicted under Article 475 (similar to Art. 350 of the
Revised Penal Code) when by reason of a mistake of fact there does

43
Art. 3 FELONIES

not exist the intention to commit the crime. (U.S. vs. 1 Phil.
109)
Also, a person who suddenly got up in his sleep, left the room with
a in his hand, and upon meeting his wife who tried to stop him,
wounded her in the abdomen and attacked others, is not criminally
liable, because his acts were not voluntary, for having acted in a
dream; he had no criminal intent. (People vs. Taneo, 58 Phil. 255)

People vs.
(96 Phil. 566)

Facts: The accused was a military major of La Paz, Abra, in 1944.

He received an order from the regional commander of an infantry,
Philippine Army, operating as a guerrilla unit, to prosecute
for treason and to appoint a jury of 12 bolomen. The jury found
guilty of the charge and the recommendation of the jury was
approved by the Headquarters of the guerrilla unit. For the execution
of Borjal, the accused was prosecuted for murder.
The accused acted upon orders of superior officers which turned
out to be illegal. As a military subordinate, he could not question the
orders of his superior officers. He obeyed the orders in good faith,
without being aware of their illegality, without any fault or negligence
on his part.
Held: Criminal intent was not established. To constitute a
crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference
to duty or to consequences, as in law, is equivalent to criminal intent.
(U.S. vs. Catolico, 18 Phil. 507) The accused was acquitted.

Mistake of fact.
While ignorance of the law excuses no one from compliance
therewith (ignorantia non excusat), ignorance or mistake of
fact relieves the accused from criminal liability (ignorantia facti

Mistake of fact is a misapprehension of fact on the part of the

person who caused injury to another. He is not, however, criminally
liable, because he did not act with criminal intent.
An honest mistake of fact destroys the presumption of criminal
intent which arises upon the commission of a felonious act. (People

44
 FELONIES Art. 3

vs. Coching, et C.A., 52 O.G. 293 , citing People vs. 74 Phil.

257)

Requisites of mistake of fact as a defense:

That the act done would have been lawful had the facts
been as the accused believed them to be.
2. That the intention of the accused in performing the act
should be lawful.

3. That the mistake must be without fault or carelessness on

the part of the accused.

Lack of intent to commit a crime may be inferred from the

facts of the case.
The defendant swore to Civil Service Form No. 1 before a notary
public that he was never accused of a violation of any law before any
court or tribunal, when in truth and in fact he had been charged with
the offense of unjust vexation in a criminal case before the Justice
of the Peace Court. He was prosecuted for the crime of perjury, for
having falsely sworn that he was never accused of any offense. When
he testified in his defense, the defendant claimed that he answered
to the question whether he had been accused of a violation of
any law, because he relied on the opinion of the provincial fiscal that
unjust vexation does not involve moral turpitude and he thought
it was not necessary to mention it in Civil Service Form No. 1. It
appeared that he had been previously prosecuted twice for perjury
for having answered to the same question, and he was acquitted
in one case and the information in the other was dismissed. It was
held that in view of the factual background of the case, the act of the
defendant in answering "No" to the question can be considered only
as an error of judgment and did not indicate an intention to commit
the crime of perjury. The defendant was not liable for the crime of
perjury, because he had no intent to commit the crime. (People vs.
C.A., 70 O.G. 3786)

In mistake of fact, the act done would have been lawful,

had the facts been as the accused believed them to be.
In other words, the act done would not constitute a felony had
the facts been as the accused believed them to be.

45
 Art. 3 FELONIES

Thus, in the cases of U.S. vs. and People vs. Beronilla,

supra, the accused in the first case believed that she was already
of age when she contracted marriage and the accused in the second
case believed that the orders of his superior officer were legal. Had
they been the real facts, there would not be any felony committed.
But even if they were not the real facts, since the accused acted in
good faith, they acted without intent. Hence, their acts were invol-
untary.
In mistake of fact, the act done by the accused would have
constituted (1) a justifying circumstance under Art. 11, (2) an abso-
lutory cause, such as that contemplated in Art. 247, par. 2, or (3) an
involuntary act.

U.S. vs. Ah Chong

(15 Phil. 488)

Facts: Ah Chong was a cook in Ft. He was afraid of

bad elements. One evening, before going to bed, he locked himself in
his room by placing a chair against the door. After having gone to
bed, he was awakened by someone trying to open the door. He called
out twice, "Who is but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again,
"If you enter the room I will kill you." But at that precise moment, he
was struck by the chair that had been placed against the door, and
believing that he was being attacked he seized a kitchen knife and
struck and fatally wounded the intruder who turned out to be his
roommate.

Held: Ah Chong must be acquitted because of mistake of fact.

Had the facts been as Ah Chong believed them to be, he would

have been justified in killing the intruder under Article 11, paragraph
1, of the Revised Penal Code, which requires, to justify the act, that
there be —

unlawful aggression on the part of the person killed, (2)

reasonable necessity of the means employed to prevent or repel it, and
(3) lack of sufficient provocation on the part of the person defending
himself. If the intruder was really a robber, forcing his way into the
room of Ah Chong, there would have been unlawful aggression on the
part of the intruder. There would have been a necessity on the part
of Ah Chong to defend himself and/or his home. The knife would have
been a reasonable means to prevent or repel such aggression. And Ah

46
 FELONIES Art. 3

Chong gave no provocation at all. Under Article of the Revised Penal

Code, there is nothing unlawful in the intention as well as in the act
of the person making the defense.

(See: People vs. Mamasalaya, No. Feb. Phil.

639, 654)

People vs. Oanis

(74 Phil. 257)

Facts: Chief of Police Oanis and his co-accused Corporal Galanta

were under instructions to arrest one Balagtas, a notorious criminal and
escaped convict, and if overpowered, to get him dead or alive. Proceeding
to the suspected house, they went into a room and on seeing a man
sleeping with his back towards the door, simultaneously fired at him
with their revolvers, without first making any reasonable inquiry as
to his identity. The victim turned out to be an innocent man, Tecson,
and not the wanted criminal.

Held: Both accused are guilty of murder.

Even if it were true that the victim was the notorious criminal,
the accused would not be justified in killing him while the latter was
sleeping.
In apprehending even the most notorious criminal, the law does
not permit the captor to kill him. It is only when the fugitive from
justice is determined to fight the officers of the law who are trying to
capture him that killing him would be justified.

The mistake must be without fault or carelessness on the

part of the accused.
Ah Chong case and Oanis case distinguished.
In the Ah Chong case, there is an innocent mistake of fact
without any fault or carelessness on the part of the accused, because,
having no time or opportunity to make any further inquiry, and being
pressed by circumstances to act immediately, the accused had no
alternative but to take the facts as they then appeared to him, and
such facts justified his act of killing the deceased.
In the Oanis case, the accused found no circumstances whatever
which would press them to immediate action. The person in the room

47
Art. 3 FELONIES

being then asleep, the accused had ample time and opportunity to
ascertain his identity without hazard to themselves, and could even
effect a bloodless arrest if any reasonable effort to that end had been
made, as the victim was unarmed. This, indeed, is the only legitimate
course of action for the accused to follow even if the victim was really
Balagtas, as they were instructed not to kill Balagtas at sight, but to
arrest, and to get him dead or alive only if resistance or aggression
is offered by him.
Hence, the accused in the Oanis case were at fault when they
shot the victim in violation of the instructions given to them. They
were also careless in not verifying first the identity of the victim.

Lack of intent to kill the deceased, because his intention

was to kill another, does not relieve the accused from
criminal responsibility.
That the accused made a mistake in killing one man instead of
another cannot relieve him from criminal responsibility, he having
acted maliciously and wilfully. (People vs. Gona, 54 Phil. 605)

In mistake of fact, the intention of the accused in

performing the act should be lawful.
in error in personae or mistake in the identity of the victim,
the principle of mistake of fact does not apply.

Example: A wanted to kill B by shooting him with a pistol.

Thinking that the person walking in dark alley was A shot the
person. It turned out that the person killed was C, the brother
of A. A had no intention to kill Since the act and intention
of A in firing his pistol are unlawful, A cannot properly invoke
the principle of mistake of fact in his defense.

No crime of resistance when there is a mistake of fact.

One who resists an arrest, believing that the peace officer is
a bandit, but who submits to the arrest immediately upon being
informed by the peace officer that he is a policeman, is not guilty of
the crime of resistance to an agent of the authorities under Art. 151
of the Revised Penal Code, because of mistake of fact. (See U.S. vs.
Bautista, 31 Phil. 308)

48
 FELONIES Art. 3

When the accused is negligent, mistake of fact is not a de-

fense.

People vs. De Fernando

(49 Phil. 75)

Facts: The accused, a policeman, was informed that three con-

victs had escaped. In the dark, he saw a person going up the stairs of a
house, carrying a and calling for someone inside. The daughter of
the owner of the house was at that time with the accused who fired a
shot in the air. As the unknown person continued to ascend the stairs
and believing that he was one of the escaped convicts, the accused fired
directly at the man who turned out to be the nephew of the owner of
the house.
Held: He is guilty of homicide through reckless negligence. The
victim called for someone in the house. That fact indicated that he was
known to the owner of the house. The accused should have inquired
from the daughter of the owner of the house as to who the unknown
person might be.

The defense of mistake of fact is untenable when the accused is

charged with a culpable felony. In mistake of fact, what is involved
is lack of intent on the part of the accused. In felonies committed
through negligence, there is no intent to consider, as it is replaced
by imprudence, negligence, lack of foresight or lack of skill.

Criminal intent is necessary in felonies committed by

means of dolo.
Criminal intent is necessary in felonies committed by means of
dolo because of the legal maxims —
Actus non facit nisi mens sit rea, "the act itself does not
make a man guilty unless his intention were so."
Actus me invito factus non est actus, "an act done by me
against my will is not my act." (U.S. vs. Ah Chong, 15 Phil. 499)

Distinction between general intent and specific intent.

In felonies committed by the third element of voluntari-
ness is a general intent; whereas, in some particular felonies, proof of
particular specific intent is required. Thus, in certain crimes against

49
Art. 3 FELONIES

property, there must be the intent to gain (Art. 293 — robbery; Art.
— theft). Intent to kill is essential in frustrated or attempted
homicide (Art. 6 in relation to Art. 249); in forcible abduction (Art.
342), the specific intent of lewd designs must be proved.

When the accused is charged with intentional felony,

absence of criminal intent is a defense.
In the absence of criminal intent, there is no liability for
intentional felony. All reasonable doubt intended to demonstrate error
and not crime should be indulged in for the benefit of the accused.
(People vs. Pacana, 47 Phil. 48)
If there is only error on the part of the person doing the act,
he does not act with malice, and for that reason he is not criminally
liable for intentional felony.

Criminal intent is replaced by negligence and imprudence

in felonies committed by means of culpa.
In felonies committed by means of culpa, since the doing of or
failing to do an act must also be voluntary, there must be freedom
and intelligence on the part of the offender, but the requisite of
criminal intent, which is required in felonies by dolo, is replaced by
the requisite of imprudence, negligence, lack of foresight, or lack of
skill.

Such negligence or indifference to duty or to consequence is, in

law, equivalent to criminal intent. (U.S. vs. Catolico, 18 Phil. 507)
But in felonies committed by means of culpa, the mind of the
accused is not criminal. However, his act is wrongful, because the injury
or damage caused to the injured party results from the imprudence,
negligence, lack of foresight or lack of skill of the accused.
Therefore, in order that the act or omission in felonies committed
by means of fault or culpa may be considered voluntary, the following
requisites must concur:
(1) He must have FREEDOM while doing an act or omitting
to do an act;
(2) He must have INTELLIGENCE while doing the act or
omitting to do the act;

50
 FELONIES Art. 3

(3) is IMPRUDENT, NEGLIGENT or LACKS FORESIGHT or

SKILL while doing the act or omitting to do the act.

In culpable felonies, the injury caused to another should

be unintentional, it being simply the incident of another act
performed without malice.
People vs. Guillen
(85 Phil. 307)

Facts: Guillen, testifying in his own behalf, stated that he per-

formed the act voluntarily; that his purpose was to kill the President,
but that it did not make any difference to him if there were some people
around the President when he hurled that bomb, because the killing
of those who surrounded the President was tantamount to killing the
President, in view of the fact that those persons, being loyal to the
President, were identified with the latter. In other words, although it
was not his main intention to kill the persons surrounding the Presi-
dent, he felt no compunction in killing them also in order to attain his
main purpose of killing the President.
Held: The facts do not support the contention of counsel for
appellant that the latter is guilty only of homicide through reckless
imprudence in regard to the death of Simeon Varela and of less serious
physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro
and Maglalang.
In throwing the hand grenade at the President with the inten-
tion of killing him, the appellant acted with malice. He is therefore
liable for all the consequences of his wrongful act; for in accordance
with Art. 4 of the Revised Penal Code, criminal liability is incurred
by any person committing a felony although the wrongful
act done be different from that which he intended. In criminal
negligence, the injury caused to another should be unintentional, it
being simply the incident of another act performed without malice.
(People vs. Sara, 55 Phil. 939) In the words of Viada, "in order that
an act may be qualified as imprudence it is necessary that neither
malice nor intention to cause injury should intervene; where such
intention exists, the act should be qualified by the felony it has
produced even though it may not have been the intention of the
actor to cause an evil of such gravity as that produced." (Viada's
comment on the Penal Code, Vol. 7, 5th p. 7) And, as was held
by this court, deliberate intent to do an unlawful act is essentially
inconsistent with the idea of reckless imprudence. (People vs.
Nanquil, 43 Phil. 232)

51
 Art. 3 FELONIES

Mistake in the identity of the intended victim is not

reckless imprudence.
A deliberate intent to do an unlawful act is essentially inconsistent
with the idea of reckless imprudence. Where such an unlawful act is
willfully a mistake in the identity of the intended victim cannot
be considered as reckless imprudence. (People vs. Guillen, 85 Phil.
307, citing People vs. Nanquil, 43 Phil. 232, and People vs. Guia, 54
Phil. 605)

A person causing damage or injury to another, without

malice or fault, is not criminally liable under the Revised
Penal Code.
Since felonies are committed either by means of deceit (dolo) or
by means of fault (culpa), if there is neither malice nor negligence
on the part of the person causing damage or injury to another, he is
not criminally liable under the Revised Penal Code.
In such case, he is exempt from criminal liability, because he
causes an injury by mere accident, without fault or intention of
causing it. (Art. 12, par. 4, Revised Penal Code)

Illustration:
Three men, Ramos, Abandia and Catangay, were hunting deer
at night. Ramos carried a lantern fastened to his forehead. Abandia
and Catangay were following him. They saw a deer. Catangay whose
gun was already cocked and aimed at the deer stumbled against
an embankment which lay between him and Ramos. His gun was
accidentally discharged, hitting and killing Ramos. It was held that
Catangay was not criminally liable because he had no criminal intent
and was not negligent. (U.S. vs. Catangay, 28 Phil. 490)

The act performed must be lawful.

In the foregoing illustration, the act of aiming the gun at the
deer while hunting is lawful, it not being prohibited by any law.
But the act of discharging a gun in a public place is unlawful.
(Art. 155, Revised Penal Code) In such case, if a person is injured as
a result of the discharge of the gun, the one discharging it in a public
place is criminally liable for the injury caused.

52
 FELONIES Art. 3

The third class of crimes are those punished by special laws.

There are three classes of crimes. The Revised Penal Code de-
fines and penalizes the first two classes of crimes, (1) the intentional
felonies, and (2) the culpable felonies. The third class of crimes are
those defined and penalized by special laws which include crimes
punished by municipal or city ordinances.

Dolo is not required in crimes punished by special laws.

When the crime is punished by a special law, as a rule, intent
to commit the crime is not necessary. It is sufficient that the offender
has the intent to perpetrate the act prohibited by the special law.
Intent to commit the crime and intent to perpetrate the act
must be distinguished. A person may not have consciously intended
to commit a crime; but he did intend to commit an act, and that act
is, by the very nature of things, the crime itself. (U.S. vs. Go Chico,
14 Phil. 128)

In the first (intent to commit the crime), there must be criminal

intent; in the second (intent to perpetrate the act), it is enough that
the prohibited act is done freely and consciously.

People vs. Bayona

(61 Phil. 181)

Facts: Defendant was driving his automobile on a road in front

of electoral precinct No. 4 in Barrio de Pilar, Capiz. He had
a revolver with him. He was called by his friend, Jose D. Benliro. He
alighted from his automobile and approached him to find out what
he wanted. He did not leave his revolver in the automobile, because
there were many people in the road in front of the polling place and
he might lose it. He was within the fence surrounding the polling
place when Jose E. Desiderio, a representative of the Department
of the Interior, took possession of the revolver defendant was car-
rying.
The Solicitor-General was for his acquittal.
Held: The law which defendant violated is a statutory provision,
and the intent with which he violated is immaterial. It may be conceded
that defendant did not intend to intimidate any elector or to violate
the law in any other way, but when he got out of his automobile and
carried his revolver inside of the fence surrounding the polling place,

53
 Art. 3 FELONIES

he committed the act complained of, and he committed it wilfully. The

Election Law does not require for its violation that the offender has
the intention to intimidate the voters or to interfere otherwise with the
election.

The rule is that in acts mala in there must be a criminal

intent; but in those mala prohibita, it is sufficient if the prohibited
act was intentionally done.
Since the Election Code prohibits and punishes the carrying
of a firearm inside the polling place, and that person did the pro-
hibited act freely and consciously, he had the intent to perpetrate
the act.

No intent to perpetrate the act prohibited.

If a man with a revolver merely passes along a public road on
election day, within fifty meters of a polling place, he does not violate
the provision of the law in question, because he had no intent to
perpetrate the act prohibited, and the same thing would be true of a
peace officer in pursuing a criminal; nor would the prohibition extend
to persons living within fifty meters of a polling place, who merely
clean or handle their firearms within their own residences on election
day, as they would not be carrying firearms within the contemplation
of the law. (People vs. Bayona, supra)

In those crimes punished by special laws, the act alone,

irrespective of its motives, constitutes the offense.

U.S. us. Siy Cong Bieng, et al.

(30 Phil. 577)

Facts: Co Kong, while in charge of appellant's store and acting

as his agent and employee, sold, in the ordinary course of business,
coffee which had been adulterated by the admixture of peanuts and
other extraneous substances.
Question: Whether a conviction under the Pure Food and Drugs
Act (No. 1655 of the Philippine Commission) can be sustained where it
appears that the sale of adulterated food products was made without
guilty knowledge of the fact of adulteration.
Held: While it is true that, as a rule and on principles of abstract
justice, men are not and should not be held criminally responsible for

54
 FELONIES Art. 3

acts committed by them without guilty knowledge and criminal or at

least evil intent, the courts have always recognized the power of the
legislature, on grounds of public policy and compelled by necessity,
"the greater master of things," to forbid in a limited class of cases the
doing of certain acts, and to make their commission criminal without
regard to the intent of the doer.
It is notorious that the adulteration of food products has
grown to proportions so enormous as to menace the health and
safety of the people. Ingenuity keeps pace with greed, and the care-
less and heedless consumers are exposed to increasing perils. To
redress such evils is a plain duty but a difficult task. Experience
has taught the lesson that repressive measures which depend for
their efficiency upon proof of the dealer's knowledge or of his intent
to deceive and defraud are of little use and rarely accomplish their
purposes. Such an emergency may justify legislation which throws
upon the seller the entire responsibility of the purity and sound-
ness of what he sells and compels him to know and to be certain.
(People vs. 106 N.Y., 321, cited in the case of U.S. vs. Go
Chico, 14 Phil. 133)

Reasons why criminal intent is not necessary in crimes made

such by statutory enactment.
The accused was charged with a violation of Section 1 of Act
1696 of the Philippine Commission, which punishes any person who
shall expose to public view any flag, banner, emblem or device used
during the late insurrection in the Philippines. Even if the accused
acted without criminal intent, the lower court convicted him. In
affirming the judgment of conviction of the lower court, the Supreme
Court said —
"The display of a flag or emblem used, particularly within a
recent period, by the enemies of the Government tends to incite
resistance of governmental functions and insurrection against
governmental authority just as effectively if made in the best of
good faith as if made with the most corrupt intent. The display
itself, without the intervention of any other fact, is the evil. It
is quite different from that large class of crimes, made such by
the common law or by in which the effect upon
the public depends upon the corrupt intention of the person
perpetrating the act. If A discharges a loaded gun and kills B,
the interest which society has in the act depends, not upon B's
death, but upon the intention with which A consummated the

55
Art. 3 FELONIES

act. If the gun was discharged intentionally, with the purpose of

accomplishing the death of B, then society has been injured and
its security violated; but if the gun was discharged accidentally
on the part of A, then society, strictly speaking, has no concern
in the matter, even though the death of B results. The reason
for this is that A does not become a danger to society and its
institutions until he becomes a person with a corrupt The
mere discharge of the gun and the death of B do not of themselves
make him so. With those two facts must go the corrupt intent
to kill. In the case at bar, however, the evil to society and to the
Government does not depend upon the state of mind of the one
who displays the banner, but upon the effect which that display
has upon the public mind. In the one case the public is affected
by the intention of the actor; in the other by the act itself." (U.S.
vs. Go Chico, 14 Phil. 129)

When the doing of an act is prohibited by a special law, it is

considered that the act is injurious to public welfare and the doing
of the prohibited act is the crime itself.

Good faith and absence of criminal intent not valid

defenses in crimes punished by special laws.
It does not matter, for the validity of the conviction of Ongsod,
that he is the owner or borrower, as the proprietary concept of the
possession can have no bearing whatsoever on his guilt, within the
intendment and purview of Republic Act 4 (which amended Section
2692 of the Revised Administrative Code and Commonwealth Act
56). And it is now beyond question that mere unlicensed possession
is sufficient to sustain a conviction of illegal possession of firearms,
regardless of the intent of the unlicensed holder, since the offense
is malum prohibitum punished by special law, and good faith and
absence of criminal intent are not valid defenses. (People vs. Orquijo,
[C.A.] 60 O.G. 836)

(See: Lacson, Jr. vs. Posadas, Matter No. 74-MJ, July 30,
1976, 72 SCRA 168, 171)

Exceptions:
1. Several PC soldiers went to the house of the defendant
and asked him if he had in his possession any unlicensed

56
 FELONIES Art. 3

firearm. The defendant readily answered that he had one

but that said unlicensed firearm was in his possession prior
to his turning it over to the Mayor of in connection
with the drive of the government in the collection of loose
firearms. Defendant told the PC soldiers that he bought
the firearm from a stranger with the purpose of selling it to
the PC who were paying for loose firearms. He even showed
to the PC soldiers a letter of the town mayor authorizing
him to collect loose firearms in his barrio.

Held: To implement the policy of the government on

loose firearms, it is imperative that the persons collecting
and surrendering loose firearms should have temporary
and incidental possession thereof, for how can one collect
and deliver without temporarily laying his hands on
the firearms? It is for this reason that we believe that
the doctrine of the immateriality of animus possidendi
should be relaxed in a certain way. Otherwise, the avowed
purpose of the government's policy cannot be realized. Of
course, it would be a different story if it is shown that the
possessor has held on to the firearm for an undue length
of time when he had all the chances to surrender it to the
proper authorities. (People vs. Landicho, [C.A.] 55 O.G.
842)

2. When neither of the accused had ever intended to commit

the offense of illegal possession of firearms (U.S. vs.
Samson, 16 Phil. 323); when both believed in good faith
that as civilian guards under Councilor Asa, an MIS agent
and a superior officer in the Civilian Guard Organization,
and under the circumstances and facts of this case, they
cannot be held liable for the offense charged because they
never had any intent of violating the law. (People vs. Asa
and Balbastro, [C.A.] 50 O.G. 5853, citing 68 Corpus Juris
39)
Where the accused had a pending application for permanent
permit to possess a firearm, and whose possession was not
unknown to an agent of the law who advised the former to
keep it in the meantime, any doubt as to his claim should
be resolved in his favor. (People vs. Mallari, 55 O.G.
1394)

57
Art. 3 FELONIES

Where appellant was duly appointed as civilian confidential

agent entrusted with a mission to make surveillance and
effect the killing or capture of a wanted person, and was
authorized to carry a revolver to carry out his mission, he
is not criminally liable for illegal possession of firearms.
(People vs. Lucero, 103 Phil. 500)

Note: In these cases, the accused had no license to

possess the firearms, but in view of the facts and
circumstances, the absence of intent to violate the
law was considered in favor of the accused.

Mala in se and mala prohibita, distinguished.

There is a distinction between crimes which are mala in se, or
wrongful from their nature, such as theft, rape, homicide, etc., and
those that are mala prohibita, or wrong merely because prohibited
by statute, such as illegal possession of firearms.
Crimes mala in se are those so serious in their effects on society
as to call for almost unanimous condemnation of its members; while
crimes mala prohibita are violations of mere rules of convenience
designed to secure a more orderly regulation of the affairs of society.
Law Dictionary, Rawle's 3rd Revision)

(1) In acts mala in se, the intent governs; but in those mala
prohibita, the only inquiry is, has the law been violated?
(People vs. 106 N.Y., 321 , cited in the case of U.S.
vs. Go Chico, 14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited
for reasons of public policy, as in illegal possession of (People
vs. Conosa, C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies and
penalized by the Revised Penal Code. When the acts are
inherently immoral, they are mala in se, even if punished
by special laws. On the other hand, there are crimes in
the Revised Penal Code which were originally defined and
penalized by special laws. Among them are possession and
use of opium, malversation, brigandage, and libel.
The term mala prohibita refers generally to acts made criminal
by special laws.

58
 FELONIES Art. 3

When the acts are inherently immoral, they are mala in se,
even if punished under special law.
People vs. Sunico, et al.
50 O.G. 5880)

Facts: The accused were election inspectors and poll clerks whose
duty among others was to transfer the names of excess voters in other
precincts to the list of a newly created precinct. Several voters were
omitted in the list. Because their names were not in the list, some of
them were not allowed to vote. The accused were prosecuted for viola-
tion of 101 and 103 of the Revised Election Code. The accused
claimed that they made the omission in good faith.
The trial court seemed to believe that notwithstanding the fact
that the accused committed in good faith the serious offense charged, the
latter are criminally responsible therefor, because such offense is malum
prohibitum, and, consequently, the act constituting the same need not
be committed with malice or criminal intent to be punishable.
Held: The acts of the accused cannot be merely mala prohibita
— they are mala per se. The omission or failure to include a voter's name
in the registry list of voters is not only wrong because it is prohibited;
it is wrong per se because it disenfranchises a voter and violates one of
his fundamental rights. Hence, for such act to be punishable, it must
be shown that it has been committed with malice. There is no clear
showing in the instant case that the accused intentionally, willfully and
maliciously omitted or failed to include in the registry list of voters the
names of those voters. They cannot be punished criminally.

The Revised Election Code, as far as its penal provisions are

concerned, is a special it being not a part of the Revised Penal
Code or its amendments.

Intent distinguished from motive.

Motive is the moving power which impels one to action for a
definite result. Intent is the purpose to use a particular means to
effect such result.
Motive is not an essential element of a crime, and, hence, need
not be proved for purposes of conviction. (People vs. Aposaga, No.
L-32477, Oct. 30, 1981, 108 SCRA 574, 595)
An extreme moral perversion may lead a man to commit a crime
without a real motive but just for the sake of committing it. Or, the

59
 Art. 3 FELONIES

apparent lack of a motive for committing a criminal act does not

necessarily mean that there is none, but that simply it is not known
to us, for we cannot probe into the depths of one's conscience where
it may be found, hidden away and inaccessible to our observation.
(People vs. Taneo, 58 Phil. 255, 256)
One may be convicted of a crime whether his motive appears to
be good or bad or even though no motive is proven. A good motive does
not prevent an act from being a crime. In mercy killing, the painless
killing of a patient who has no chance of recovery, the motive may
be good, but it is nevertheless punished by law.

Motive, when relevant and when need not be established.

Where the identity of a person accused of having committed a
crime is in dispute, the motive that may have impelled its commission
is very relevant. (People vs. Murray, 105 Phil. 591, 598; People vs.
Feliciano, No. L-30307, Aug. 15, 1974, 58 SCRA 383, 393)
Generally, proof of motive is not necessary to pin a crime on
the accused if the commission of the crime has been proven and the
evidence of identification is convincing. (People vs. No. L-
32276, Sept. 12, 1974, 59 SCRA 136, 160)
Motive is essential only when there is doubt as to the identity of
the assailant. It is immaterial when the accused has been positively
identified. (People vs. Gadiana, G.R. No. 92509, March
SCRA 214-215; People vs. Mandapat, G.R. No. 76953, April 22,
1991, 196 SCRA 157, 165)
Where the defendant admits the killing, it is no longer necessary
to inquire into his motive for doing the act. (People vs. G.R.
No. June 30, 1959)
Motive is important in ascertaining the truth between two
antagonistic theories or versions of the killing. (People vs. Boholst-
Caballero, No. L-23249, Nov. 61 SCRA People vs.
G.R. No. 86454, Oct. 18, 1990, 190 SCRA 706, 714-715; People
vs. Tabije, No. L-36099, 113 SCRA 191, 197)

Where the identification of the accused proceeds from an

unreliable source and the testimony is inconclusive and not free
from doubt, evidence of motive is necessary. (People vs. Beltran, No.
Nov. 29, 1974, 61 SCRA 246, 254-255)

60
 FELONIES Art. 3

Where there are no ey ew i t n e ss es to the crime, and where

suspicion is likely to fall upon a number of persons, motive is relevant
and significant. (People vs. Melgar, No. L-75268, Jan. 29, 1988, 157
SCRA 718, 725)
If the evidence is merely proof of motive is
essential. (People vs. No. L-37483, June SCRA

Proof of motive is not indispensable where guilt is otherwise

established by sufficient evidence. (People vs. 107 Phil. 44, 49)
While the question of motive is important to the person who
committed the criminal act, yet when there is no longer any doubt
that the defendant was the culprit, it becomes unimportant to know
the exact reason or purpose for the commission of the crime. (People
vs. Feliciano, No. L-30307, Aug. 15, 1974, 58 SCRA 383, 393)

How motive is proved.

Generally, the motive is established by the testimony of wit-
nesses on the acts or statements of the accused before or immediately
after the commission of the offense. Such deeds or words may indicate
the motive. vs. Fernandez, 82 Phil. 642, 649)

Motive proved by the evidence.

Appellant stabbed the deceased. It was established that there
were two suffocating smokes noticed during the progress of the re-
ligious service of the Iglesia ni which made appellant to go
around. Certainly, the those smokes, presumably by non-
members, which disturbed and interrupted the service, particularly
at the time when the Minister was preaching, is enough motive for
any member of the sect to be offended thereby, particularly appellant
who was a member of some importance. (People vs. Ramirez, 104 Phil.
720, 726)

Disclosure of the motive is an aid in completing the proof

of the commission of the crime.
Thus, the fact that the accused had been losing in their business
operations indicated the motive and therefore the intent to commit
arson for the purpose of collecting the insurance on their stock of
merchandise. (U.S. vs. Go Foo Suy, 25 Phil. 187, 204)

61
 Art. 3 FELONIES

But proof of motive alone is not sufficient to support a con-

viction.
The existence of a motive, though perhaps an important
consideration, is not sufficient proof of guilt. (People vs. Marcos, 70 Phil.
468; People vs. Martinez y 106 Phil. 597) Mere proof of motive,
no matter how strong, is not sufficient to support a conviction if there
is no reliable evidence from which it may be reasonably deduced that
the accused was the malefactor. (People vs. 107 Phil. 188,
194)

Even a strong motive to commit the crime cannot take the

place of proof beyond reasonable doubt, sufficient to overthrow the
presumption of innocence. Proof beyond reasonable doubt is the
mainstay of our accusatorial system of criminal justice. (People vs.
No. L-32886, Oct. 23 , 1981, 108 SCRA 211 , 226)

Lack of motive may be an aid in showing the innocence of

the accused.
In a case, the Supreme Court concluded that the defendant
acted while in a dream and his acts, with which he was charged,
were not voluntary in the sense of entailing criminal liability.
Under the special circumstances of the case, in which the victim
was the defendant's own wife whom he dearly loved, and taking into
consideration the fact that the defendant tried to attack also his
father, in whose house and under whose protection he lived, besides
attacking Tanner and Malinao, his guests, whom he himself invited as
may be inferred from the evidence presented, we find not only lack of
motives for the defendant to voluntarily commit the acts complained
of, but also motives for not committing said acts. (People vs. Taneo,
58 Phil. 255, 257)
Lack of motive to kill the deceased has been held as further
basis for acquitting the accused, where the lone testimony of the
prosecution witness is contrary to common experience and, therefore,
incredible. (People vs. Padirayon, No. L-39207, Sept. 25, 1975, 67
SCRA 135)

62
 CRIMINAL LIABILITY
Art. 4
Wrongful Act From That Intended

Art. 4. Criminal liability. — C r i m i n a l l i ab i l i t y shall be in-

cu rr ed :
1 . By an y p erso n c o m m i t t i n g a felony (delito) al th ou gh the
wr on gf u l act d on e b e differen t from that w h i c h h e i n te n d ed .
2 . B y an y p e r s o n p e r f o r m i n g a n ac t w h i c h woul d b
e a n o ff en s e a g a i n s t p e r s o n s o r p r o p e r t y , w e r e i t no t for th e
i n h e r e n t i m p o s s i b i l i t y o f it s a c c o m p l i s h m e n t o r o n accoun
t o f th e e m p l o y m e n t o f i n a d e q u a t e o r i n e f f e c t u a l means .

Application of Article 4.
Criminal liability is incurred by any person in the cases men-
tioned in the two paragraphs of Article 4. This article has no reference
to the manner criminal liability is incurred. The manner of incurring
criminal liability under the Revised Penal Code is stated in Article
3, that is, performing or failing to do an act, when either is punished
by law, by means of deceit (with malice) or fault (through negligence
or imprudence).

One who commits an intentional felony is responsible for

all the consequences which may naturally and logically
result therefrom, whether foreseen or intended or not.
Ordinarily, when a person commits a felony with malice, he
intends the consequences of his felonious act. But there are cases
where the consequences of the felonious act of the offender are not
intended by him. In those cases, "the wrongful act is "different
from that which he intended."
In view of paragraph 1 of Art. 4, a person committing a felony is
criminally liable although the consequences of his felonious act are
not intended by him.
Thus, where the death of the 6 year-old victim was brought
about by the rape committed by the accused, it is of no moment that
she died by accident when she hit her head on the pavement while
struggling, because, having performed an act constituting a felony,
he is responsible for all the consequences of said act, regardless of
his intention. (People vs. Mario Mariano, 75 O.G. 4802, No. 24, June
11, 1979)

63
Art. 4 CRIMINAL LIABILITY
Wrongful Act Different From That Intended

One is not relieved from criminal liability for the natural con-
sequences of one's illegal acts, merely because one does not intend to
produce such consequences. (U.S. vs. Brobst, 14 Phil. 310)
Thus, one who fired his gun at B, but missed and hit C instead,
is liable for the injury caused to C, although the one who fired the
gun had no intention to injure
One who gave a fist blow on the head of D, causing the latter to
fall with the latter's head striking a hard pavement, is liable for the
death of which resulted although the one who gave the fist blow
had no intention to kill D.
And one who stabbed another in the dark, believing that the
latter was E, when in fact he was G, is liable for the injury caused to
G, although the one who stabbed him had no intention to injure G.

Rationale of rule in paragraph 1 of Article 4.

The rationale of the rule in Article 4 is found in the doctrine
that "el que es causa de la causa es causa del (he who
is the cause of the cause is the cause of the evil caused). (People vs.
Ural, No. March 27, 1974, 56 SCRA 138, 144)

I MP O R T A N T W O R D S AN D P H R A S E S I N P A R A G R A P H 1 O F
ART. 4.
1. "Committing a felony."
Paragraph 1 of Art. 4 says that criminal liability shall
be incurred by any person "committing a felony," not merely
performing an act. A felony is an act or omission punishable by
the Revised Penal Code. If the act is not punishable by the Code,
it is not a But the felony committed by the offender should
be one committed by means of dolo, that is, with malice, because
paragraph 1 of Art. 4 speaks of wrongful act done "different from
that which he
If the wrongful act results from the imprudence, negligence,
lack of foresight or lack of skill of the offender, his liability should
be determined under Art. 365 , which defines and penalizes
criminal negligence.
The act or omission should not be punished by a special
law, because the offender violating a special law may not have
the intent to do an injury to another. In such case, the wrongful

64
 CRIMINAL LIABILITY
Art. 4
Wrongful Act Different From That Intended

act done could not be different, as the offender did not intend to
do any other injury.

Article 4, paragraph is not applicable in this case.

Defendant, who was not a regular medical practitioner, tied
a girl, wrapped her feet with rags saturated with petroleum and
thereafter set them on fire causing injuries. His defense was that he
undertook to render medical assistance in good faith and to the best
of his ability to cure her of ulcer. He admitted applying petroleum
but denied causing the burns. Held: While there was no intention to
cause an evil but to provide a remedy, accused was liable for injuries
thru imprudence. (U.S. vs. 12 Phil. 175)

Note: Defendant did not commit an intentional felony. If at

all, he committed illegal practice of medicine, which is
punished by a special law. Violation of a statute is proof
of negligence or imprudence. Defendant is liable for two
offenses: physical injuries through imprudence; and
(2) illegal practice of medicine.

When a person has not committed a felony, he is not criminally

liable for the result which is not intended.
(a) Thus, one who, because of curiosity, snatched the carried
by the offended party at his belt, and the latter
caught the blade of said bolo in trying to retain it, is not crimi-
nally liable for the physical injuries caused, because there is no
provision in the Revised Penal Code which punishes that act of
snatching the property of another just to satisfy curiosity. (See
U.S. vs. Villanueva, 31 Phil. 412)

(b) Thus, also, one who tries to retain the possession of his bolo
which was being taken by another and because of the struggle,
the tip of the bolo struck and pierced the breast of a bystander,
is not criminally liable therefor, because the law allows a person
to use the necessary force to retain what belongs to him. (See
People vs. Bindoy, 56 Phil. 15)
People vs. Bindoy
(56 Phil. 15)
Facts: In a tuba wineshop in the barrio market, the accused
offered tuba to wife; and as she refused to drink having already

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done so, the accused threatened to injure her if she would not accept.
There ensued an interchange of words between her and the accused,
and Pacas stepped in to defend his wife, attempting to take away
from the accused the bolo he carried. This occasioned a disturbance
which attracted the attention of Emigdio Omamdam who lived near
the market. Emigdio left his house to see what was happening, while
the accused and Pacas were struggling for the bolo. In the course of this
struggle, the accused succeeded in disengaging himself from Pacas,
wrenching the bolo from the latter's hand towards the left behind the
accused, with such violence that the point of the bolo reached Emigdio
Omamdam's chest, who was then behind the accused. The accused
was not aware of Omamdam's presence in the place.
Held: There is no evidence to show that the accused injured the
deceased deliberately and with the intention of committing a crime. He
was only defending his possession of the bolo, which Pacas was trying
to wrench away from him, and his conduct was perfectly legal. The
accused should be acquitted.

Had the accused attempted to wound Pacas during the strug-

gle, but instead of doing so, he wounded Omamdam, he would have
been liable for the death of Omamdam, because in attempting to
wound another, the accused would be committing a felony, which
is attempted homicide, if there is intent to kill, under Art. 249 in
relation to Art. 6.
2. "Although the wrongful act done be different from that which he
intended."
The causes which may produce a result different from that
which the offender intended are: mistake in the identity of
the victim; (2) mistake in the blow, that is, when the offender
intending to do an injury to one person actually inflicts it on
another; and (3) the act exceeds the intent, that is, the injurious
result is greater than that intended.
Under paragraph Art. 4, a person committing a felony
is still criminally liable even if —
a. There is a mistake in the identity of the victim — error in
personae. (See the case of People vs. Oanis, 74 Phil. 257)
In a case, defendant went out of the house with the
intention of assaulting Dunca, but in the darkness of the evening,
defendant mistook Mapudul for Dunca and inflicted upon him

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a mortal wound with a bolo. In this case, the defendant is

criminally liable for the death of Mapudul. (People vs. Gona,
54 Phil. 605)
b. There is a mistake in the blow — aberratio ictus.
Example: People vs. Mabugat, 51 Phil. 967, where the
accused, having discharged his firearm at Juana Buralo but
because of lack of precision, hit and seriously wounded
Buralo, it was held that the accused was liable for the injury
caused to the latter.

The injurious result is greater than that intended — praeter

Example: People vs. Cagoco, 58 Phil. 524 , where the

accused, without intent to kill, struck the victim with his fist on
the back part of the head from behind, causing the victim to fall
down with his head hitting the asphalt pavement and resulting
in the fracture of his head, it was held that the accused was
liable for the death of the victim, although he had no intent to
kill said victim.

People vs. Mabugat

(51 Phil. 967)

Facts: The accused and Juana Buralo were sweethearts. One

day, the accused invited Juana to take a walk with him, but the latter
refused him on account of the accused having frequently visited the
house of another woman. Later on, the accused went to the house of
Bayan where Juana had gone to take part in some devotion.
There the accused, revolver in hand, waited until Juana and her niece,
Perfecta, came downstairs. When they went in the direction of their
house, the accused followed them. As the two girls were going upstairs,
the accused, while standing at the foot of the stairway, fired a shot from
his revolver at Juana but which wounded Perfecta, the slug passing
through a part of her neck, having entered the posterior region thereof
and coming out through the left Perfecta did not die due to proper
medical attention.
Held: The accused is guilty of frustrated murder, qualified by
treachery, committed on the person of Perfecta Buralo.

In People vs. No. April 30, 1985, 136

SCRA 238, the conduct of the wife of the accused aroused his ire and

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incensed with wrath and his anger beyond control, he picked up a

piece of wood and started hitting his wife with it until she fell to the
ground complaining of severe chest pains. Realizing what he had
done, he picked her up in his arms and brought her home. Despite
his efforts to alleviate her pains, the wife died. Prosecuted for
parricide, he pleaded guilty and was allowed to establish mitigating
Passing on his contentions, the Supreme Court held
that the fact that the appellant intended to maltreat his wife only
or inflict physical injuries does not exempt him from liability for the
resulting and more serious crime of (pp. 242, 246)

To the same effect is People vs. No. L-36282, Dec. 10,

1976, 74 SCRA 263 , where it was held that the case is covered by
Article 4 of the Revised Penal Code which provides that criminal
liability is incurred by any person committing a felony although
the wrongful act done be different from that which he intended,
because the maltreatment inflicted by the accused on his wife was
the proximate cause of her death. The accused in his inebriated state
had no intent to kill her. He was infuriated because his son did not
feed his carabao. He was provoked to castigate his wife because she
prevented him from whipping his negligent son. He could have easily
killed his wife had he really intended to take her life. He did not kill
her (p. 269)

Requisites of paragraph 1 of Art. 4.

In order that a person may be held criminally liable for a felony
different from that which he intended to commit, the following
requisites must be present:
a. That an intentional felony has been committed; and
b. That the wrong done to the aggrieved party be the direct,
natural and logical consequence of the felony committed
by the offender. (U.S. vs. Brobst, 14 Phil. 310, 319; U.S.
vs. 29 Phil. 14, 19)

That a felony has been committed.

Thus, in the cases of U.S. vs. and People vs. Bindoy,
supra, the accused were not held criminally liable, because they
were not committing a felony when they caused the injury to an-
other.

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Act Different From That Intended

No felony is committed (1) when the act or omission is not punishable

by the Revised Penal Code, (2) when the act is covered by any of the
justifying circumstances enumerated in Art. 11.
An act which is not punishable by the Revised Penal Code is
attempting to commit suicide. (Art. 253)
Therefore, if A, in attempting a suicide, jumped out of the
window to kill himself, but when he dropped to the ground he fell on
an old woman who died as a consequence, A is not criminally liable
for intentional homicide. A was not committing a felony when he
attempted a suicide.

One who shoots at another in self-defense, defense of relative,

defense of a stranger, or in the fulfillment of duty is not committing
a felony, the act being justified. (Art. 11, Revised Penal Code)
Hence, if B, who was being fired at with a gun by C to kill him,
fired his pistol at the latter in self-defense, but missed him and instead
hit and killed D, a bystander, B is not criminally liable for the death
of D. One acting in self-defense is not committing a felony.

A policeman, who was pursuing to arrest an armed prisoner

who had just escaped from jail, fired his service pistol at the latter
when he refused to be captured. The slug fired from the pistol of the
policeman, after hitting the prisoner on his right leg, hit and seriously
injured a passer-by. The policeman is not criminally liable for the
injury caused to the passer-by, because being in the fulfillment of a
duty he was not committing a felony.
Of course, the act of defense or fulfillment of duty must be
exercised with due care; otherwise, the accused will be liable for
culpable felony.

People vs. Salinas

(C.A., 62 O.G. 3186)

Facts: In the afternoon of February 14, 1958, the three accused,

namely: Saturnino Salinas, Crisanto Salinas and Francisco Salinas,
together with two small boys by the name of Tony and went to
the place of Severino Aquino to get their horses which the latter caught
for having destroyed his corn plants. When Crisanto and the two boys
were already inside the house of Severino Aquino, Crisanto asked, with
signs of respect and in a nice way, Severino Aquino what had the horses

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destroyed. Thereafter, Salinas who was at that time in front

of the house of Severino Aquino in the yard told Severino Aquino to
come down from the house and he (Saturnino) will bolo him to pieces.
Upon hearing the words of Saturnino Salinas, Severino Aquino was
about to go downstairs but Crisanto held him on his waist. In his
struggle to free himself from the hold of Crisanto, he (Severino) moved
his body downwards thus Crisanto subsequently held Severino's neck.
At the moment Crisanto was holding Severino's neck, Aquino who
was then sitting on a mat inside the said house stood up and, carrying
her one month old child Jaime Tibule with her left hand and against
her breast, approached Severino and Crisanto. Upon reaching by the
left side of Crisanto, Mercuria tried, with her right hand, to remove the
hand of Crisanto which held the neck of Severino but Crisanto pulled
Mercuria's right hand causing said Mercuria to fall down over her child
Jaime Tibule on the floor of the house and Jaime Tibule was pinned on
the floor by Mercuria's body.

The cause of death (of Jaime Tibule) was hemorrhage

within the skull due to injury of the blood vessels in the parietal side
of the head due to an impact with a hard object."
Held: The accepted rule is that an offender is always liable
for the consequences of his criminal act even though the result be
different from what he intended. (Art. 4, Revised Penal Code) For
such liability to exist, two requisites are necessary, namely, (1) that
a crime be committed, and (2) that the wrong suffered by the injured
party be a direct consequence of the crime committed by the offender.
Under the circumstances, it cannot be said that Crisanto Salinas, in
his efforts to prevent Severino from going down the house to have
bloody encounter with his father who was in the yard, by taking hold
of Severino and pulling or jerking the right hand of Mercuria who
tried to free her father from his hold, committed or was committing
a crime. Consequently, it cannot likewise be said that the death of
the child was the direct result of a crime which Crisanto committed
or was in the act of committing.

Any person who creates in another's mind an immediate

sense of danger, which causes the latter to do something
resulting in the injuries, is liable for the resulting
injuries.
During a robbery in a passenger jeepney, one of the culprits told
the women passengers "to bring out their money and not to shout
else there will be One of the women jumped out of the jeepney.
Her head struck the pavement. She died as a consequence.

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Wrongful Act Different From That Intended

It was held that a man creates in another person's mind an

immediate sense of danger, which causes such person to try to escape,
and, in so doing, the latter injures himself, the man who creates such
a state of mind is responsible for the resulting injuries." (People vs.
Page, 77 SCRA 348, 355, citing People vs. Toling, L-27097, Jan. 17,
1975, 62 SCRA 17, 33)

The reason for the ruling is that when the culprit demanded
money from the women, threatening to shoot if they would not bring
out their money, a felony was being committed (i.e., at that stage of
execution, attempted robbery with intimidation which is punishable
under Article 294 , in relation to Article 6 and Article 51 of the
Code).

The Toling case, supra, relying on U.S. vs. 41 Phil. 497,

quoted the syllabus, thus: "if a person against whom a criminal assault
is directed reasonably believes himself to be in danger of death or great
bodily harm and in order to escape jumps into the water, impelled
by the instinct of self-preservation, the assailant is responsible for
homicide in case death results by drowning."

Wrong done must be the direct, natural and logical conse-

quence of felonious act.
It is an established rule that a person is criminally responsible
for acts committed by him in violation of the law and for all the natural
and logical consequences resulting therefrom. (U.S. vs. Sornito, 4
Phil. 357, 360; U.S. vs. 32 Phil. 218, 226; People vs. Cornel,
78 Phil. 458, 261)
In the following cases, wrong done is considered the direct,
natural and logical consequence of the felony committed, although

a. The victim who was threatened or chased by the accused

with a knife, jumped into the water and because of the
strong current or because he did not know how to swim he
sank down and died of drowning. (U.S. vs. Valdez, 41 Phil.
497; People vs. Buhay, 79 Phil. 372)
b. The victim removed the drainage from the wound which
resulted in the development of peritonitis which in turn
caused his death, it appearing that the wound caused by
the accused produced extreme pain and restlessness which

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made the victim remove it. (People vs. 62 Phil.

162)
Other causes cooperated in producing the fatal result,
as long as the wound inflicted is dangerous, that is,
calculated to destroy or endanger life. This is true even
though the immediate cause of the death was erroneous
or unskillful medical or surgical treatment. This rule
surely seems to have its foundation in a wise and practical
policy. A different doctrine would tend to give immunity
to crime and to take away from human life a salutary
and essential safeguard. Amid the conflicting theories of
medical men, and the uncertainties attendant upon the
treatment of bodily ailments and injuries, it would be
easy in many cases of homicide to raise a doubt as to the
immediate cause of death, and thereby to open wide the
door by which persons guilty of the highest crime might
escape conviction and punishment. (13 R.C.L., 751 , 752;
22 L.R.A., New Series, 841 , cited in People vs. Moldes, 61
Phil. 4)

But where it clearly appears that the injury would not have
caused death, in the ordinary course of events, but would have
healed in so many days and where it is shown beyond all doubt that
the death was due to the malicious or careless acts of the injured
person or a third person, the accused is not liable for homicide. One
is accountable only for his own acts and their natural or logical
consequences, and not for those which bear no relation to the initial
cause and are due, for instance, to the mistakes committed by the
doctor in the surgical operation and the treatment of the victim's
wound. (Decision of the Supreme Court of Spain, April cited
by Viada)
d. The victim was suffering from internal malady.
Blow was efficient cause of death.
The d ec ea se d ha d a d el i ca t e c o n s t i t u t i o n and wa s
suffering from The accused gave fist blows on
the deceased's right hypochondrium, bruising the liver and
producing internal hemorrhage, resu ltin g in the death of
the victim. The accused was liable for homicide. (People vs.
Illustre, 54 Phil. 594)

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Wrongful Act Different From That Intended

Blow accelerated death.

The deceased was suffering from internal malady. The
accused gave fist blows in the back and abdomen, producing
inflammation of the spleen and peritonitis, and causing death.
The accused was liable for homicide, because by his fist blows
he produced the cause for the acceleration of the death of the
deceased. (People vs. 23 Phil. 22)
Blow was proximate cause of death.
The deceased wa s suffering from heart disease. The
accused stabbed the deceased with a knife, but as the blade of
the knife hit a bone, it did not penetrate the thoracic cavity,
but it produced shock, resulting in the death of the victim. The
accused was liable for homicide, because the stabbing was the
proximate cause of the death of the deceased. (People vs. Reyes,
61 Phil. 341)

e. . Th e offended part y refuse d to s u b m i t to

s u r g i c a l operation.

The offended party is not obliged to submit to a surgical

operation to relieve the accused from the natural and ordinary
results of his crime. (U.S. vs. Marasigan, 27 Phil. 504)
f. The resulting injury was aggravated by infection.
(1) The accused wounded the offended party with a
bolo. When the offended party entered the hospital,
no an t i - tetanus injection was given to him and the
wounds became infected when he went out of the
hospital. Held: The accused is responsible for the
duration of the treatment and disability prolonged
by the infection. (People vs. Red, C.A., 43 O.G.
5072)
An accused is liable for all the consequences of
his acts, and the infection of a wound he has caused
is one of the consequences for which he is
(People vs. 9 C.A. Rep. 204)
But the infection should not be due to the mali-
cious act of the offended party. (U.S. vs. De Santos,
G.R. No.

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Wrongful Act From That Intended

(2) Although the wounds might have been cured sooner

than 58 days had the offended party not been addicted
to tuba drinking, this fact does not mitigate the
liability of the accused. (U.S. vs. Bayutas, 31 Phil.
584)
The accused attacked the deceased with a bolo. After
the deceased had fallen, the accused threw a stone
which hit him on the right clavicle. The wounds
inflicted could not have caused the death of the
deceased. A week later, the deceased died of tetanus
secondary to the infected wound. Held: The accused
is responsible for the death of the deceased. (People
vs. Cornel, 78 Phil. 418)

People vs.
(62 Phil. 162)

Facts: The accused took hold of a fireband and applied it to the

neck of the person who was pestering him. The victim also received
from the hand of the accused a wound in his abdomen below the navel.
While undergoing medical treatment, the victim took out the drainage
from his wound and as a result of the peritonitis that developed, he
died. The accused claimed as a defense that had not the deceased taken
out the drainage, he would not have died.
Held: Death was the natural consequence of the mortal wound
inflicted. The victim, in removing the drainage from his wound, did
not do so voluntarily and with knowledge that it was prejudicial to his
health. The act of the victim (removing the drainage from his wound)
was attributed to his pathological condition and state of nervousness
and restlessness on account of physical pain caused by the wound,
aggravated by the contact of the drainage tube with the inflamed
peritoneum.

U.S. vs. Marasigan

(27 Phil. 504, 506)

Facts: The accused drew his knife and struck at Mendoza. In

attempting to ward off the blow, Mendoza was cut in the left hand.
The extensor tendon in one of the fingers was severed. As a result, the
middle finger of the left hand was rendered useless.
Held: Nor do we attach any importance to the contention of the
accused that the original condition of the finger could be restored by

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Art. 4
Wrongful Act Different From That Intended

a surgical operation. Mendoza is not obliged to submit to a surgical

operation to relieve the accused from the natural and ordinary results
of his crime. It was his voluntary act which disabled Mendoza and he
must abide by the consequences resulting therefrom without aid from
Mendoza.

People vs.
Feb. 43 SCRA 526, 532)

Facts: The accused stabbed the victim with an ice pick. The victim
was brought to the hospital where a surgical operation was performed
upon Although the operation was successful and the victim seemed
to be in the process of recovery, he developed, five (5) days later, a
paralytic ileum — which takes place, sometimes, in consequence of
the exposure of the internal organs during the operation — and then
died.
Held: It is contended that the immediate cause of the death of the
victim was a paralysis of the ileum that supervened five (5) days after
the stabbing, when he appeared to be on the way to full recovery. It has
been established, however, that the exposure of the internal organs in
consequence of a surgical operation in the abdomen sometimes results
in a paralysis of the ileum and that said operation had to be performed
on account of the abdominal injury inflicted by the accused. The accused
is responsible for the natural consequences of his own acts.

The felony committed must be the proximate cause of the

resulting injury.
Proximate cause is "that cause, which, in natural and continu-
ous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred."
(Bataclan vs. Medina, 102 Phil. 181, 186, quoting 38 Am. Jur. 695)
Moreover, a person committing a felony is criminally liable
for all the natural and logical consequences resulting therefrom
although the wrongful act done be different from that which he
intended. "Natural" refers to an occurrence in the ordinary course of
human life or events, while "logical" means that there is a rational
connection between the act of the accused and the resulting injury
or damage. The felony committed must be the proximate cause of
the resulting injury. Proximate cause is that cause which in natural
and continuous sequence, unbroken by an efficient intervening cause,
produces the injury, and without which the result would not have
occured. The proximate legal cause is that acting first and producing

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the injury, either immediately, or by setting other events in motion,

all constituting a natural and continuous chain of events, each having
a close causal connection with its immediate prodecessor.
There must be a relation of "cause and effect," the cause being
the felonious act of the offended, the effect being the resultant injuries
and/or death of the victim. The "cause and effect" relationship is not
altered or changed because of the pre-existing such as the
pathological condition of the victim (las patologica del
the predisposition of the offended party (la constitucion
del or the concomitant or concurrent conditions, such
as the negligence or fault of the doctors (la de medicos para
sister al herido); or the conditions supervening the felonies act such
as tetanus, pulmonary infection or gangrene.
The felony committed is not the proximate cause of the resulting
injury when:
a) there is an active force that intervened between the felony
committed and the resulting injury, and the active force is
a distinct act or fact absolutely foreign from the felonious
act of the accused; or
b) the resulting injury is due to the intentional act of the vic-
tim.
If a person inflicts a wound with a deadly weapon in such a
manner as to put life in jeopardy and death follows as a consequence
of their felonious act, it does not alter its nature or diminish its crimi-
nality to prove that other causes cooperated in producing the factual
result. The offender is criminally liable for the death of the victim if
his delictual act caused, accelerated or contributed to the death of
the victim. A different doctrine would tend to give immunity to crime
and take away from human life a salutary and essential safeguard.
(Quinto vs. Andres, G.R. No. 155791, March 16, 2005)

How to determine the proximate cause.

At about 2:00 o'clock in the morning while the bus was running
very fast on a highway, one of the front tires burst and the vehicle
began to zigzag until it fell into a canal and turned turtle. Four of its
passengers could not get out of the overturned bus. It appeared that
as the bus overturned, gasoline began to leak from the tank on the

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Art. 4
Wrongful Act Different From That Intended

side of the chassis, spreading over and permeating the body of the
bus and the ground under and around it. About ten men, one of them
carrying a lighted torch, approached the overturned bus to help those
left therein, and almost immediately a fierce fire started, burning the
four passengers trapped inside it.

is the proximate cause of the death of the four passengers,

the negligence of the driver resulting in the fall into the canal and
overturning of the bus, or the fire that burned the bus?

"x x x. It may be that ordinarily, when a passenger bus overturns,

and pins down a passenger, merely causing him physical injuries, if
through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after
looting the vehicle set it on fire, and the passenger is burned to death,
one might still contend that the proximate cause of his death was
the fire and not the overturning of the vehicle. But in the present
case and under the circumstances obtaining in the same, we do not
hesitate to hold that the proximate cause of the death of x x x (the
four passengers) was the overturning of the bus, this for the reason
that when the vehicle turned not only on its side but completely on
its back, the leaking of the gasoline from the tank was not unnatural
or unexpected; that the coming of the men with a lighted torch was
in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that
because it was very dark (about 2:30 in the morning), the rescuers had
to carry a light with them; and coming as they did from a rural area
where lanterns and flashlights were not available, they had to use a
torch, the most handy and available; and what was more natural than
that said rescuers should innocently approach the overturned vehicle
to extend the aid and effect the rescue requested from them. In other
words, the coming of the men with the torch was to be expected and
was a natural sequence of the overturning of the the trapping
of some of its passengers and the call for outside help. What is more,
the burning of the bus can also in part be attributed to the negligence
of the carrier, through its driver and its conductor. According to the
the driver and the conductor were on the road walking back
and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could
and must have leaked from the gasoline tank and soaked the area
in and around the bus, this aside from the fact that gasoline when

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Act Different From That Intended

spilled, specially over a large area, can be smelt and detected even
from a distance, and yet neither the driver nor the conductor would
appear to have cautioned or taken steps to warn the rescuers not to
bring the lighted torch too near the bus." That is negligence on the
part of the agents of the carrier. (Vda. de Bataclan, et al. vs. Medina,
102 Phil. 181, 186, 187)

People vs. Luces

No. July 15, 1955)

Facts: Accused Ramon Luces gave a fist blow on the stomach

of Feliciana, causing her to fall unconscious. She never regained
consciousness and a few minutes thereafter she died. In the autopsy
report, it was found that the probable cause of death was cardiac
failure. The accused contended that the fist blow was not the
proximate cause of Feliciana's death.
Held: Whether Feliciana died as a direct effect of the fist blow, or
as an outcome of the fall that followed the blow, or as a consequence of
the blow and the fall that caused her to lose consciousness, or of heart
failure due to shock caused by the blow and her fall to the ground,
the result would be the same — that the blow was the primary and
proximate cause of her death.
The gravity of the crime does not depend on the more or less
violent means used, but on the result and consequence of the same and
if the accused had not ill-treated the deceased she would not have died.
Known is the Latin maxim that who is the cause of the cause, is
the cause of the evil caused."
Note: Ill-treating another by deed without causing any injury, is
a felony under Art. 266 of this Code.

In the case of People vs. Martin, 89 Phil. 18, the accused, who
strangled his wife then suffering from heart disease, was found guilty
of parricide even if the death of his wife was the result of heart failure,
because the heart failure was due to the fright or shock caused by the
strangling, which is a felony.

The following are not efficient intervening causes:

1. The weak or diseased physical condition of the victim, as
when one is suffering from tuberculosis or heart disease.
(People vs. Illustre and People vs. Reyes, supra)

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Art. 4
Wrongful Act Different From That Intended

2. The nervousness or temperament of the victim, as when

a person dies in consequence of an internal hemorrhage
brought on by moving about against the doctor's orders,
because of his nervous condition due to the wound inflicted
by the accused. (People vs. Almonte, 56 Phil. 54; See also
People vs. 62 Phil. 162)
3. Causes which are inherent in the victim, such as (a) the
victim not knowing how to swim, and (b) the victim being
addicted to tuba drinking. (People vs. Buhay and U.S. vs.
Valdez, supra; U.S. vs. Bayutas, supra)
4. Neglect of the victim or third person, such as the refusal
by the injured party of medical attendance or surgical
operation, or the failure of the doctor to give anti-tetanus
injection to the injured person. (U.S. vs. Marasigan and
People vs. Red, supra)

5. Erroneous or unskillful medical or surgical treatment, as

when the assault took place in an outlying barrio where
proper modern surgical service was not available. (People
vs. Moldes, 61 Phil. 1)

Those causes, not efficient intervening causes, do not break

the relation of cause and effect — the felony committed and the re-
sulting injury.

People vs. et al.

(94 Phil. 293)

Facts: One of the accused stabbed the injured party with a

hunting knife on October 28, 1951. The injured party was taken to the
hospital and was operated on. The operation did him well, but on
December 19, 1951, he contracted a sickness known as mucous colitis
which developed because of his weak condition. He died on December

Is the accused who stabbed the injured party liable for the latter's
death?
Held: The doctors who attended the injured party agreed that his
weakened condition which caused disturbance in the functions of his
intestines made it possible for him to contract mucous colitis, which
shows that while the wounds inflicted were not the immediate cause,
they were however the proximate cause of death. This is enough to
make the accused responsible for the crime charged.
79
Art. 4 CRIMINAL LIABILITY
Wrongful Act Different From That Intended

Note: The charge was robbery with homicide. The homicide was
committed with malice.

When death is presumed to be the natural consequence of

physical injuries inflicted.
The death of the victim is p resu me d to be the natural
consequence of the physical injuries inflicted, when the following
facts are
1. That the victim at the time the physical injuries were
inflicted was in normal health.
2. That death may be expected from the physical injuries
inflicted.
3. That death ensued within a reasonable time. (People vs.
Datu C.A., 44 O.G. 2287)
I t havin g been e st ab l i s h e d tha t the boy wa s in
good health on the morning of the incident; that he was whipped,
spanked and thrown against the post by his teacher, his breast
hitting it; that he complained to his mother about the oppressive
pain, crying and massagi n g his breast all the time; that he was
found to have two suspicious bluish spots — a big one on the breast
and another one on the upper left arm; and that he vomitted blood
until he died three days afterwards; and there being no proof of
any intervening cause, the liability of the teacher for homicide
necessarily follows from the premises stated. (People vs. Tammang,
5 C.A. Rep. 145)

Note: Had it been proved, as claimed by the defense, that the

boy died of hydrophobia, that would have constituted
an intervening cause, and the accused would have been
acquitted.

Not direct, natural and logical consequence of the felony

committed.
If the consequences produced have resulted from a distinct
act or fact absolutely foreign from the criminal act, the offender is
not responsible for such consequences. (People vs. Rellin, 77 Phil.
1038)

80
 CRIMINAL LIABILITY
Art. 4
Wrongful Act From That Intended

A person is not liable criminally for all possible consequences

which may immediately follow his felonious act, but only for such as
are proximate.

Thus, where a person struck another with his fist and knocked
him down and a horse near them jumped upon him and killed him,
the assailant was not responsible for the death of that other person.
(People vs. Rockwell, 39 Mich. 503)

This case should be distinguished from the case of People vs.

Cagoco, 58 Phil. 524, supra.

In the Cagoco case, there was no active force that intervened

between the felonious act and the result. In the Rockwell there
was an active force (the jumping of the horse upon the deceased)
which produced the result.
In the following cases, the injury caused is not the direct, logical
and necessary consequence of the felony committed, because the felony
committed is not the proximate cause of the resulting injury:
a. If slight physical injuries be inflicted by A upon B, and the
latter deliberately immerses his body in a contaminated
cesspool, thereby causing his injuries to become infected
and serious, A cannot be held liable for the crime of
serious physical injuries. (U.S. vs. De Santos, G.R. No.
13309)
The act of B in deliberately immersing his body in
a contaminated cesspool, not the slight physical injuries
inflicted by A, is the proximate cause of the serious physical
injuries.
b. The accused struck a boy on the mouth with the back of his
hand. Later, the boy died. Death might have been caused
by fever prevalent in the locality, not by the blow on the
mouth. The accused who gave the blow was not liable for
the death of the deceased. (People vs. Palalon, 49 Phil.
177)
The accused struck a child, who was seriously ill with
fever for three weeks, upon the thighs with a slipper,
pushed and dragged him, throwing him heavily on the
mat spread on the floor. The child died two days later.

81
Art. 4 CRIMINAL LIABILITY
Wrongful Act Different From That Intended

As the true cause of the child's death was not proved, the
accused was convicted of physical injuries only. (U.S. vs.
3 Phil. 640)
d. Where medical findings lead to a distinct possibility that
the infection of the wound by tetanus was an efficient
intervening cause later or between the time the deceased
was wounded to the time of his death, the accused must be
acquitted of the crime of homicide. (Urbano vs. 157
SCRA 10)

The felony committed is not the proximate cause of the re-

sulting injury when —
There is an active force that intervened between the felony
committed and the resulting injury, and the active force is
a distinct act or fact absolutely foreign from the felonious
act of the accused; or
2. The resulting injury is due to the intentional act of the
victim.

Is the accused responsible for the result, if there is a neglect of the

wound or there is an improper treatment of the
The neglect of the wound or its unskillful and improper
treatment, which are of th emsel ves consequences of the criminal
act and which might naturally follow in any case, must in law be
deemed to have been among those consequences which were in
contemplation of the guilty party and for which he is to be held
responsible. (26 Am. 193 , cited in People vs. Morallos, C.A.,
50 O.G. 179)
Unskillful and improper treatment may be an active force, but it
is not a distinct act or fact absolutely foreign from the criminal act.

7s the accused criminally liable for the consequences which originate

through the fault or carelessness of the injured person
In the case of U.S. vs. Monasterial, 14 Phil. 391 , it was held
that who are responsible for an act constituting a crime are
also liable for all the consequences arising therefrom and inherent
therein, other than those due to incidents entirely foreign to the act
executed, or which originate through the fault or carelessness of the

82
 CRIMINAL LIABILITY
Art. 4
Impossible Crimes

injured person, which are exceptions to the rule not arising in the
present case."
In the case of People us. 62 Phil. 162, it is stated that
one who inflicts injury on another is deemed guilty of homicide if the
injury contributes to the death of the latter, "even if the deceased
might have recovered if he had taken proper care of himself, or sub-
mitted to surgical operation."

It would seem that the fault or carelessness of the injured party,

which would break the relation of the felony committed and the re-
sulting injury, must have its origin from his malicious act or omission
(U.S. vs. Navarro, 7 Phil. 713), as when the injured party had a desire
to increase the criminal liability of his assailant.

A supervening event may be the subject of amendment of

original information or of a new charge without double
jeop- ardy.
Where the charge contained in the original information was
for slight physical injuries because at that time the fiscal believed
that the wound suffered by the offended party would require medi-
cal attendance for a period of only 8 days, but when the preliminary
investigation was conducted, the justice of the peace found that the
wound would heal after a period of 30 days, the act which converted
the crime into a more serious one had supervened after the filing
of the original information and this supervening event can still be
the subject of amendment or of a new charge without necessarily
placing the accused in double jeopardy. (People vs. Petilla, 92 Phil.
395)

Impossible crimes.
The commission of an impossible crime is indicative of criminal
propensity or criminal tendency on the part of the actor. Such person is
a potential According to thinking, the community
must be protected from anti-social activities, whether actual or
potential, of the morbid type of man called "socially dangerous
person."
The penalty for impossible crime is provided in Article 59 of this
Code.

83
Art. 4 CRIMINAL LIABILITY
Impossible Crimes

The 2nd paragraph of Art. 4 defines the so-called impossible

crimes (impossible attempts).
Requisites of impossible crime:
That the act performed would be an offense against persons
or property.
2. That the act was done with evil intent.
3. That its accomplishment is inherently impossible, or that
the means employed is either inadequate or ineffectual.
4. That the act performed should not constitute a violation
of another provision of the Revised Penal Code.

IM PO RT AN T WO RD S AN D P H R A S E S IN P A R A G R A P H 2 OF
ART. 4.

1. an act which would be an offense against

persons or property."
In committing an impossible crime, the offender
intends to commit a felony against persons or a felony
against property, and the act performed would have been
an offense against persons or property. But a felony against
persons or property should not be actually committed, for,
otherwise, he would be liable for that felony. There would
be no impossible crime to speak of.
F e l o n i e s a g a i n s t p e r s o n s are :
a. Parricide (Art. 246)
b. Murder (Art. 248)
Homicide (Art. 249)
d. Infanticide (Art. 255)
e. Abortion (Arts. 256, 257, 258 and 259)
f. Duel (Arts. 260 and 261)
g. Physical injuries (Arts. 262, 263, 264, 265 and 266)
h. Rape (Art. 266-A)

84
 CRIMINAL LIABILITY
Art. 4
Impossible Crimes

F e l o n i e s a g a i n s t p r o p e r t y are:

a. Robbery (Arts. 294, 297, 298, 299, 300, 302 and 303)
b. Brigandage (Arts. 306 and 307)

Theft 311)
d. Usurpation (Arts. 312 and 313)
e. Culpable insolvency (Art. 314)

Swindling and other deceits (Arts. 315, 316, 317 and

318)
g. Chattel mortgage (Art. 319)

h. Arson and other crimes involving destruction (Arts.

320, 321 , 322 , 323 , 324 , 325 and 326)

i. Malicious mischief (Arts. 327 , 328 , 329 , 330 and

331)
If the act performed would be an offense other than a felony
against persons or against property, there is no impossible crime.

That the act was done with evil intent.

Since the offender in impossible crime intended to commit an
offense against persons or against property, it must be shown that
the actor performed the act with evil intent, that is, he must have
the intent to do an injury to another.
A, who wanted to kill B, looked for him. When A saw B, he found
out that B was already dead. To satisfy his grudge, A stabbed B in
his breast three times with a knife. Is this an impossible crime?
No, because A knew that B was already dead when he stabbed
the lifeless body. There was no evil intent on the part of A, because
he knew that he could not cause an injury to B. Even subjectively,
he was not a criminal.
2. it not for the inherent impossibility its accomplish-
ment or on account of the employment of inadequate or
ineffectual means."
In impossible crime, the act performed by the offender
cannot produce an offense against persons or property,

85
Art. 4 CRIMINAL LIABILITY
Impossible Crimes

because: the commission of the offense (against persons

or against property) is inherently impossible of accomplish-
ment; or (2) the means employed is either (a) inadequate;
or (b) ineffectual.
a. "Inherent impossibility of its accomplishment."
This phrase means that the act intended by the
offender is by its nature one of impossible accomplish-
ment. (See Art. 59, Revised Penal Code)
There must be either (1) legal or (2)
physical impossibility of accomplishing the intended
act.
E x a m p l e s of i mp o ss i b l e crimes which are
punishable under the Revised Penal Code are: (1)
When one tries to kill another by putting in his soup a
substance which he believes to be arsenic when in fact
it is common salt; and (2) when one tries to murder a
corpse. (People vs. 85 Phil. 493, 496)
(1) "Would be an offense against persons."
Example: A fired at B, was lying on
bed, not knowing that B was dead hours before.
In crime against persons, as would have been
in this case, it is necessary that the victim could
be injured or killed. A dead person cannot be
injured or killed. Had B been alive when he was
shot, and as a consequence he died, the crime
committed by A would have been murder, a
crime against persons.

There is physical and legal impossibility in

this example.
(2) "Would be an offense against property."
A, with intent to gain, took a watch from
the pocket of B. When A had the watch in his
possession, he found out that it was the watch
which he had lost a week before. In other words,
the watch belonged to A. Is this an impossible
crime?

86
 CRIMINAL LIABILITY
Art. 4
Impossible Crimes

It is believed that it may be an impossible

crime. The act performed would have been theft
had the watch been the property of B. But there
is a legal impossibility of accomplishing it, be-
cause in theft, the personal property taken must
belong to another.

An employee who, having known the safe

combination, opens the safe in the office for the
purpose of stealing money, but who finds the
safe empty, is guilty of an impossible crime. The
act performed would have been a crime of theft
were it not for the inherent impossibility of its
accomplishment. If there is no personal property
that could be taken, it is inherently impossible
to commit theft.

b. "Employment of means.
Example: A, determined to poison B, uses a
small quantity of arsenic by mixing it with the food
given to B, believing that the quantity employed by
him is sufficient. But since in fact it is not sufficient,
B is not killed. The means employed (small quantity
of poison) is inadequate to kill a person.

Where the means employed is adequate.

But where the means employed is adequate
and the result expected is not produced, it is not an
impossible crime, but a frustrated felony.
Thus, if the quantity of poison used is sufficient
to kill an ordinary person, but the intended victim
has developed strong resistance to poison because he
has been working in a mine, the crime committed is
frustrated murder.
Employment of "ineffectual means."
A tried to kill B by putting in his soup a substance
which he thought was arsenic when in fact it was sugar.
B could not have been killed, because the means employed
was ineffectual. But A showed criminal tendency and,

87
 Art. 5 WHEN ACTS ARE NOT COVERED BY LAW
AND IN CASES OF EXCESSIVE PENALTIES

hence, he should be punished for it in accordance with Art.

4, par. 2, in relation to Art. 59.
A, with intent to kill B, aimed his revolver at the back
of the latter, A, not knowing that it was empty. When he
pressed the trigger it did not fire. The means used by A is
ineffectual.

In impossible crime the act performed should not

constitute a violation of another provision of the Code.
A, who knew that B owned and always carried a watch, decided
to rob B of said watch. When A met B for that purpose, B did not
have the watch because he forgot to carry it with him. Thinking
that B had the watch with him, A pointed his gun at him and asked
for the watch. Finding that B did not have the watch, A allowed
B to go without further molestation. Is this an impossible crime?
It is believed that A committed attempted robbery, not impossible
crime. There was intent to gain on the part of A when he decided
to take the watch of B at the point of gun. The crime of robbery
with intimidation of person is not produced, not because of the
inherent impossibility of its accomp li sh ment, but because of a
cause or accident (that B forgot to carry the watch with him) other
than A's own spontaneous desistance. (Art. 6, par. 3) Note also that
A's pointing his gun at B already constituted at least the crime of
grave threats under Art. 282 , subdivision 2 , of the Revised Penal
Code. This is another reason why it is not an impossible crime.

Purpose of the law in punishing the impossible crime.

To suppress criminal propensity or criminal tendencies. Objec-
tively, the offender has not committed a felony, but subjectively, he
is a criminal.

Art. 5. Duty of the court in connection with acts which should

be repressed but which are not covered by the law, and in cases of
excessive penalties. — W h e n e v e r a co u r t ha s k n o w l e d g e of an y
ac t w h i c h i t ma y d e e m p r o p e r t o r e p r e s s an d w h i c h i s no t
p u n i s h a b l e b y law , i t shal l r e n d e r th e p r o p e r d e c i s i o n an d
shall r ep or t t o th e Ch i e f E x e c u t i v e , t h r o u g h th e D e p a r t m e n
t
88
 WHEN ACTS ARE NOT COVERED BY LAW Art 5
AND IN CASES OF EXCESSIVE PENALTIES

o f J u s t i c e , th e r e a s o n s w h i c h i n d u c e th e c ou r t t o b e l i e v e tha
t sai d ac t s h o u l d b e m a d e th e s u b j e c t o f p en a l l e g i s l a t i o n .
I n th e s a m e wa y th e c o u r t sh a l l s u b m i t t o th e Ch i e f
E x e c u t i v e , t h r o u g h th e D e p a r t m e n t o f J u s t i c e , su c h s t a t e m e n
t a s ma y b e d e e m e d p r op e r , w i t h o u t s u s p e n d i n g th e e x e c u t i o
n of th e s e n t e n c e , w h e n a stri c t e n f o r c e m e n t of th e p r o v i s i o n s
of thi s Cod e w o u l d r e s u l t i n th e i m p o s i t i o n o f a cl ea rl y
e x c e s s i v e p e n a l t y , t a k i n g int o c o n s i d e r a t i o n th e d e g r e e o f
m a l i c e an d th e i n ju r y c a u s e d b y th e o ff en se .

"In connection with acts which should be repressed but which

are not covered by the law."
The 1st paragraph of this article which contemplates a trial of
a criminal case requires the following:
The act committed by the accused appears not punishable
by any law;
But the court deems it proper to repress such act;
3. In that case, the court must render the proper decision by
dismissing the case and acquitting the accused;
4. The judge must then make a report to the Chief Executive,
through the Secretary of Justice, stating the reasons which
induce him to believe that the said act should be made the
subject of penal legislation.

Basis of par. Art. 5.

The provision contained in paragraph 1 of Art. 5 is based on
the legal maxim "nullum crimen, nulla poena sine lege," that is, that
there is no crime if there is no law that punishes the act.

"In cases of excessive penalties."

The 2nd paragraph of Art. 5 requires that —
The court after trial finds the accused guilty;
2. The penalty provided by law and which the court imposes
for the crime committed appears to be clearly excessive,
because —

89
Art. 5 WHEN ACTS ARE NOT COVERED BY LAW
AND IN CASES OF EXCESSIVE PENALTIES

a.
the accused acted with lesser degree of malice,
or;
b.
there is no injury or the injury caused is of lesser
gravity.
The court should not suspend the execution of the sen-
tence.
4. The judge should submit a statement to the Chief Ex-
ecutive, through the Secretary of Justice, recommending
executive clemency.

Examples of the accused acting with lesser degree of mal-

ice:
In a case where the accused maltreated his wife in
his inebriated state, because she prevented him from whip-
ping their negligent son, and the maltreatment inflicted
by the accused was the proximate cause of her death, the
Supreme Court applied Article 5 of the Revised Penal Code,
"considering that the accused had no intent to kill his wife
and that her death might have been hastened by lack of
appropriate medical attendance or her weak
The penalty of perpetua, prescribed by law for
the crime committed, appears to be excessive. (People vs.
Monleon, No. L-36282, Dec. 10, 1976, 74 SCRA 263, 269)
Father and son were convicted of qualified theft for
stealing ten tender coconut fruits from two coconut trees
in a coconut plantation, for the family's consumption. The
court sentenced each of them to an indeterminate penalty
of from four (4) months and one (1) day of arresto mayor to
three (3) years, six (6) months and twenty-one (21) days of
correccional, according to Art. 310 of the Revised
Penal Code. The Court of Appeals held: In the light of the
circumstances surrounding the case, we are of the belief
that the degree of malice behind the appellants' felonious
act does not warrant the imposition of so stiff a penalty
as we are now constrained to mete out under the law. We
recommend, therefore, that they be pardoned after they
shall have served four (4) months of the penalty so imposed.
Let a copy of this decision be forwarded to His Excellency,

90
 WHEN ACTS ARE NOT COVERED BY LAW Art 5
AND IN CASES OF EXCESSIVE PENALTIES

the President of the Philippines, through the Honorable,

the Secretary of Justice. (People vs. Espino, et CA-G.R.
No. Feb. 20, 1956)

Example of total absence of injury:

The defendant chief of police altered and falsified the

municipal police blotter and the book of records of arrests
and the return of the warrant of arrest and the bail bond
of a person charged with qualified seduction so as to make
them show that the said person was arrested and gave bond
on the 13th day of September, 1930, whereas, in truth and
in fact, as said records showed before said falsification, that
person was arrested and released on bond on the 6th day of
September, 1930; and that defendant justice of the peace
conspired and cooperated with his codefendant in mak-
ing said falsification in order to meet the administrative
charges then pending against him. In other words, those
falsifications were committed to make it appear that there
was no delay in the preliminary investigation conducted
by the justice of the peace for qualified seduction. In this
case, there is apparent lack of malice and total absence of
injury. (People vs. Cabagsan and Montano, 57 Phil. 598)

Executive clemency recommended for the wife who killed

her cruel husband.
Her deceased husband not content with squandering away
the family substance, and satisfied with keeping a mistress
upon whom he must have spent some of the money that properly
belonged to his own family including his wife, got into the habit of
drinking until he became a habitual drunkard. On the very
day that she killed her husband, according to her own confession
on which her conviction was based, he came home drunk, forthwith
laid hands on her, striking her on the stomach until she fainted,
and when she recovered consciousness and asked for the reason for
the unprovoked attack, he threatened to renew the beating. At the
supper table instead of eating the meal set before him, he threw the
rice from his plate, thus adding insult to injury. Then he left the
house and when he returned he again boxed his wife, the herein
appellant. The violence with which appellant killed her husband

91
 Art. 5 WHEN ACTS ARE NOT COVERED BY
LAW AND IN CASES OF EXCESSIVE
PENALTIES

reveals the pent-up righteous anger and rebellion against years

of abuse, insult, and tyranny seldom heard of. Considering all
these circumstances and provocations including the fact as already
stated that her conviction was based on her own confession, the
appellant is deserving of executive clemency, not of full pardon but
of a substantial if not a radical reduction or commutation of her
life sentence. (Montemayor, concurring in People vs. Canja, 86
Phil. 518, 522-523)

Executive clemency recommended because of the

severity of the penalty for rape.
The crime committed by the accused is simple rape. Before
Article 335 of the Revised Penal Code was amended, simple rape
was penalized by reclusion temporal or twelve years and one day to
twenty years. Republic Act No. raised the penalty for simple
rape to reclusion perpetua and made qualified rape a capital offense.
Taking notice of the rampancy of sexual assaults, ensuing from the
lawlessness and deterioration of morals occasioned by the war, the
lawmaking body sought to deter rapists by increasing the penalty
for rape. It is believed that in this case, after the accused shall have
served a term of imprisonment consistent with retributive justice,
executive clemency may be extended to him. (People vs. Manlapaz,
No. Feb. 28, 1979, 88 SCRA 704, 719)

The penalties are not excessive when intended to enforce

a public policy.
1. The rampant lawlessness against property, person, and
even the very security of the Government, directly
able in large measure to promiscuous carrying and use of
powerful weapons, justify imprisonment which in normal
circumstances might appear excessive. (People vs. Estoista,
93 Phil. 647, 654)
2. With regard to the fine of P5,000.00 imposed by the court
for selling a can of powdered milk for when the
selling price for it was it should be considered that
Congress thought it necessary to repress profiteering with
a heavy fine so that dealers would not take advantage of
the critical condition to make unusual profits. (People vs.
Tiu Ua, 96 Phil. 738, 741)
92
 WHEN ACTS ARE NOT COVERED BY LAW Art 5
AND IN CASES OF EXCESSIVE PENALTIES

Courts have the duty to apply the penalty provided by law.

A trial judge expressed in his decision his view against the
wisdom of the death penalty and refused to impose it. Held: It is the
duty of judicial officers to respect and apply the law, regardless of
their private opinions.
It is a well-settled rule that the courts are not concerned with the
wisdom, efficacy or morality of laws. That question falls exclusively
within the province of the Legislature which enacts them and the
Chief Executive who approves or vetoes them. The only function of
the judiciary is to interpret the laws and, if not in disharmony with
the Constitution, to apply them. (People vs. 88 Phil. 35)
A trial judge sen tenced the accused to life imprisonment,
although the commission of the crime of robbery with homicide was
attended by the aggravating circumstances of and in band,
"in view of the attitude of the Chief Executive on death Held:
The courts should interpret and apply the laws as they find them
on the statute books, regardless of the manner their judgments are
executed and implemented by the executive department. (People vs.
105 Phil. 502)

Judge has the duty to apply the law as interpreted by the

Supreme Court.
If a Judge of a lower court feels, in the fulfillment of his mission
of deciding cases, that the application of a doctrine promulgated by
the Supreme Court is against his way of reasoning, or against his
conscience, he may state his opinion on the matter, but rather than
disposing of the case in accordance with his personal view, he must
first think that it is his duty to apply the law as interpreted by the
Highest Court of the land, and that any deviation from a principle
laid down by the latter would unavoidably cause, as a sequel, unnec-
essary inconveniences, delays and expenses to the litigants. (People
vs. Santos, et 104 Phil. 560)
Accused-appellant claims that the penalty of reclusion perpetua
is too cruel and harsh a penalty and pleads for sympathy. Courts are
not the forum to plead for sympathy. The duty of courts is to apply
the law, disregarding their feeling of sympathy or pity for an accused.
DURA SED LEX. The remedy is elsewhere — clemency from the
executive or an amendment of the law by the legislative, but surely,

93
 Art. 6 STAGES OF EXECUTION
Definition of Stages

at this point, this Court can but apply the law. (People vs.
G.R. No. 116719, Jan. 18, 1996)

"When a strict enforcement of the provisions of this Code."

The second paragraph of Art. 5 of the Revised Penal Code has
no application to the offense defined and penalized by a special law.
(People vs. Salazar, 102 Phil.
The reason for this ruling is that second paragraph of Art. 5
specifically mentions "the provisions of this
Art. 5 of the Revised Penal Code may not be invoked in cases
involving acts mala prohibita, because said article applies only to
acts mala in se, or crimes committed with malice or criminal intent.
(People vs. Quebral, C.A., 58 O.G. 7399) The ruling is based on the
phrase, "taking into consideration the degree of
Before the case of People vs. Salazar, supra, was decided by the
Supreme Court, it applied the second paragraph of Art. 5 in cases
involving illegal possession of firearms, a crime punishable by a
special law (People vs. Estoesta, 93 Phil. 654; People vs. 101
Phil. 179), and to the offenses punished by the Price Control Law.
vs. People, G.R. No. April 12, 1954)

Art. 6. Consummated, frustrated, and attempted felonies. —

C o n s u m m a t e d f e l o n i e s , a s wel l a s t h o s e w h i c h ar e f r u s t r a t e d
an d a t t e m p t e d , ar e p u n i s h a b l e .
A fel on y i s c o n s u m m a t e d w h e n all th e e l e m e n t s n e c e s s a r
y for it s e x e c u t i o n an d a c c o m p l i s h m e n t ar e p r e s e n t ; an d i t i s
f r u s t r a t e d w h e n th e o f f e n d e r p e r f o r m s all th e act s o f e x e c u -
tio n w h i c h w o u l d p r o d u c e th e fe l o n y a s a c o n s e q u e n c e bu t
w h i c h , n e v e r t h e l e s s , d o no t p r o d u c e i t b y r e a s o n o f c a u s e s
i n d e p e n d e n t o f th e wil l o f th e p e r p e t r a t o r .
T h e r e i s a n a t t e m p t w h e n th e o f f e n d e r c o m m e n c e s th e
c o m m i s s i o n o f a fe l o n y d i r e c t l y b y over t acts , an d d oe s no t
p e rf or m all th e act s o f e x e c u t i o n w h i c h s h o u l d p r o d u c e th e
fel on y b y r e a s o n o f som e c a u s e o r a c c i d e n t o th e r th a n hi s ow
n spontaneou s desistance .

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Definition of

Consummated felony, defined.

A felony is consummated when all the elements necessary for
its execution and accomplishment are present.

Frustrated felony, defined.

It is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of
the will of the perpetrator.

Attempted felony, defined.

Th ere i s a n a t t e m p t wh e n th e offender c om me n c e s the
commission of a felony directly by overt acts, and does not perform
all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.

Development of crime.
From the moment the culprit conceives the idea of committing a
crime up to the realization of the same, his act passes through certain
stages.
These stages are: (1) internal acts; and (2) external acts.
Internal such as mere ideas in the mind of a person, are
not punishable even if, had they been carried out, they would
constitute a crime.
Intention and effect must concur.
Mere intention producing no effect is no more a crime than
a mere effect without the intention is a crime.
Thus, if A intended to commit treason and joined a body of
armed men in the belief that they were when in fact
they were Guerrilleros, A was not liable for treason, despite his
intent. (Albert)
2. External acts cover (a) preparatory acts; and (b) acts of execu-
tion.
a. Preparatory acts — ordinarily they are not punishable.

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Art. 6 STAGES OF EXECUTION
Attempted Felony

Ordinarily, preparatory acts are not punishable.

Hence, proposal and conspiracy to commit a felony, which
are only preparatory are not except when
the law provides for their punishment in certain felonies.
(Art. 8)
But prep aratory acts which are considered in
themselves, by law, as independent crimes are punishable.
Example: Possession of picklocks under Art. 304. The
p o s s e s s i o n of picklocks is a prep aratory act to the
commission of robbery. (Arts. 299 and 302)
The other examples of preparatory acts are: (1) buying
poison or carrying a weapon with which to kill the intended
victim; (2) carrying inflammable materials to the place
where a house is to be burned, etc.
For merely doing any of these acts, a person is not
liable for attempted homicide or attempted arson, because
they do not constitute even the first stage of the acts of
execution of those crimes.
b. Acts of execution — they are punishable under the Revised
Penal Code.
The stages of acts of execution — attempted, frustrated,
and consummated — are punishable. (Art. 6)
The first stage of the acts of execution of a felony is
the attempted; the second stage, the frustrated; and the
last stage, the consummated.
In performing the acts of execution of a felony, the
offender may reach only the first stage or the second stage.
In either case, he does not produce the felony he intends to
commit. But he is liable for attempted felony or frustrated
felony, as the case may be.

Attempted felony.
There is an attempt when the offender begins the commission
of a felony directly by overt acts. He has not performed all the acts
of execution which should produce the felony.

Elements of attempted felony:

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Attempted Felony

The offender commences the commission of the felony

directly by overt acts;
2. He does not perform all the acts of execution which should
produce the felony;

3. The offender's act is not stopped by his own spontaneous

4. The non-performance of all acts of execution was due to

cause or accident other than his spontaneous desistance.

I M P O R T A N T W O R D S AN D P H R A S E S I N ART. 6 .

the commission of a felony directly by overt acts."

When is the commission of a felony deemed commenced
directly by overt acts? When the following two requisites are
present:
(1) That there be external acts;
(2) Such external acts have direct connection with the crime
intended to be committed.

The external acts must be related to the overt acts of the crime
the offender intended to commit.
The external acts referred to in the first requisite must be related to
the overt acts of the crime the offender intended to commit. They should
not be mere preparatory acts, for preparatory acts do not have direct
connection with the crime which the offender intends to commit.

"Overt acts," defined.

An overt act is some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning
or preparation, which if carried to its complete termination following
its natural course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.

Preparatory acts and overt acts, distinguished.

If A bought poison from a drugstore, in preparation for the killing
of B by means of poison, such act is only a preparatory act. It is not

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Art. 6 STAGES OF EXECUTION
Attempted Felony

an overt act, because it has no direct connection with the crime of

murder which A intended to commit. The poison purchased may be
used by A to kill rats or insects. Hence, the act of buying poison did
not disclose necessarily an intention to kill a person with it.
But if A mixed the poison with the food intended for B, and
the latter, not knowing that it contained poison, put into his mouth
a spoonful thereof, the act of A was more than a mere planning or
preparation for the commission of murder. The buying of poison and
mixing it with the food of B who later put into his mouth part thereof
to eat it, taken together, constituted the overt acts of murder. The
nature of the external act thus performed by A clearly indicated
that he intended to commit the crime of murder. If for some reason
or another, B threw away the food with poison from his mouth, A is
liable for attempted murder.

Note: Killing a person by means of poison is murder. (Art. 248,

Drawing or trying to draw a pistol is not an overt act of

homi- cide.
In a case, the evidence of the prosecution established the
following facts:
While Tabago was talking with the Chief of Police, he made a
motion to draw his pistol, but the latter embraced him and prevented
him from drawing his pistol. Tabago then told his two companions to
fire at the Chief of Police, but they could not do so, because the Chief of
Police was embracing Tabago. One of his companions, Avelino
fired a shot but the same was not aimed at anybody.
Held: The accused cannot be convicted of the crime of attempted
homicide. The action of the accused in placing his hand on his
revolver, which was then on his waist, is indeed very equivocal and
susceptible of different interpretations. For example, it cannot be
definitely concluded that the attempt of the accused to draw out his
revolver would if allowed to develop or be carried to its complete
termination following its natural course, logically and necessarily
ripened into a concrete offense, because it is entirely possible that at
any time during the subjective stage of the felony, the accused could
have voluntarily desisted from performing all the acts of execution
and which, had it happened, would completely exempt him from

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criminal responsibility for the offense he intended to commit.

vs. Tabago, et C.A., 48 O.G. 3419)
To constitute attempted homicide the person using a firearm
must fire the same, with intent to kill, at the offended party, without
however inflicting a mortal wound on the latter.

Raising a bolo as if to strike the offended party with it is not

an overt act of homicide.
In the case of U.S. vs. Simeon, 3 Phil. 688, it was held that the
crime committed was only that of threatening another with a weapon
(Art. 285, par. 1), because all that the accused did was to raise his bolo
as if to strike or stab the offended party with it. The latter shouted
for help and ran away. No blow was struck; nor was there proof of
threats to kill or to do bodily harm.

If a blow with the bolo was struck and there was intent to kill
on the part of the accused, the act of striking the offended party with
the bolo would be an overt act of the crime of homicide.

Overt act may not be by physical activity.

There are felonies where, because of their nature or the man-
ner of committing them, the overt acts are not performed with bodily
movement or by physical activity. Thus, a proposal consisting in mak-
ing an offer of money to a public officer for the purpose of corrupting
him is the overt act in the crime of corruption of public officer. (U.S.
vs. Gloria, 4 Phil. 341)

The external acts must have a direct connection with the crime
intended to be committed by the offender.
At an early dawn, A was surprised by a policeman while in the
act of making an opening with an iron bar on the wall of a store of
cheap goods. At that time the owner of the store was sleeping inside
with another Chinaman. A had only succeeded in breaking one board
and in unfastening another from the wall.
Is there an attempted robbery in this case?
No, because while it is true that the 1st requisite is present, that
is, there were external acts of breaking one board and unfastening
another from the wall of the store to make an opening through which

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Attempted Felony

A could enter the store, yet the 2nd requisite is not present, for such
acts had no direct connection with the crime of robbery by the use of
force upon things.
In case of robbery by the use of force upon things, in order that
the simple act of entering by means of force another person's dwelling
may be considered an attempt to commit this offense, it must be shown
that the offender clearly intended to take possession, for the purpose
of gain, of some personal property belonging to another.
The crime committed was attempted trespass to dwelling,
because the intention of the accused was obviously disclosed by his
act of making an opening through the wall, and that was to enter the
store against the will of its owner who was then living there. (People
vs. 61 Phil. 703) It is only an attempt, because A was
not able to perform all the acts of execution which should produce
the felony of trespass to dwelling. Had A commenced entering the
dwelling through the opening, he would have performed all the acts
of execution.

What is an indeterminate offense?

It is one where the purpose of the offender in performing an act
is not certain. Its nature in relation to its objective is ambiguous.
In the case of People vs. Lamahang, supra, the final objective of
the offender, once he succeeded in entering the store, may be to rob, to
cause physical injury to the inmates, or to commit any other offense.
In such a case, there is no justification in finding the offender guilty
of attempted robbery by the use of force upon things.

The intention of the accused must be viewed from the

nature of the acts executed by him, and not from his
admission.
The intention of the accused must be ascertained from the facts
and, therefore, it is necessary that the mind be able to directly infer
from them the intention of the perpetrator to cause a particular
injury.

In the case People vs. Lizada, G.R. Nos. 143468-71, Jan. 24,
2003, the Supreme Court held that:
S u p r e m e Court of S pai n , in its d eci si on of
March 21 , 1892, declared that for overt acts to constitute an
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Art. 6
Attempted Felony

attempted offense, it is necessary that their objective be known

and established or such that acts be of such nature that they
themselves should obviously disclose the criminal objective
necessarily intended, said objective and finality to serve as
ground for designation of the
Acts susceptible of double interpretation, that is, in favor as
well as against the accused, and which show an innocent as well as a
punishable act, must not and cannot furnish grounds by themselves
for attempted crime. (People vs. Lamahang, 61 Phil. 707)
In offenses not consummated, as the material damage is want-
ing, the nature of the action intended cannot exactly be ascertained,
but the same must be inferred from the nature of the acts executed.
(I Groizard, p. 99) The overt acts leading to the commission of the
offense are not punishable except when they are aimed directly at its
execution, and therefore they must have an immediate and necessary
relation to the offense. (I Viada, p. 47)

"Directly by overt

The law requires that offender commences the commission

of the felony directly by overt acts."
Only offenders who personally execute the commission of a crime
can be guilty of attempted felony. The word "directly" suggests that
the offender must commence the commission of the felony by taking
direct part in the execution of the act.
Thus, if A induced B to kill C, but B refused to do it, A cannot be
held liable for attempted homicide, because, although there was an
attempt on the part of A, such an attempt was not done directly with
physical activity. The inducement made by A to B is in the nature of
a proposal, not ordinarily punished by law.
But if B, pursuant to his agreement with A, commenced the
commission of the crime by shooting with intent to kill, but missed
and did not injure C, both A and B are guilty of attempted felony,
because of conspiracy. When there is conspiracy, the rule is — the
act of one is the act of
"Does not perform all the acts of execution."
If the offender has performed all the acts of execution — nothing
more is left to be done — the stage of execution is that of a frustrated

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 Art. 6 STAGES OF EXECUTION
Attempted Felony

felony, if the felony is not produced; or consummated, if the felony is

produced.
If anything yet remained for him to do, he would be of an
attempted crime. (U.S. vs. Eduave, 36 Phil. 209)
Thus, as in the case of People vs. Lamahang, when the accused,
for the purpose of entering the dwelling of another broke one board and
unfastened another from the wall but he could start entering
through the opening thus created he was arrested by a policeman, the
crime committed was only attempted trespass to dwelling, because
there was something yet for him to do, that is, to commence entering
the dwelling through that opening in order to perform all the acts of
execution.

3. "By reason of some cause or accident."

In attempted felony, the offender fails to perform all the acts of
execution which should produce the felony because of some cause or
accident.

Examples:
Cause.
A picked the pocket of B, inside of which there was a wallet
containing Before A could remove it from the pocket of
B, the latter grabbed A's hand and prevented him from taking
it. In this case, A failed to perform all the acts of execution,
that is, taking the wallet, because of a cause, that is, the timely
discovery by B of the overt act of A.
Accident.
A aimed his pistol B to kill the latter, but when he pressed
the trigger it jammed and no bullet was fired from the pistol.

4. "Other than his own spontaneous desistance."

If the actor does not perform all the acts of execution by reason
of his own spontaneous there is no attempted felony. The
law does not punish him.

Reason:
It is a sort of reward granted by law to those who, having
one foot on the verge of crime, heed the call of their conscience

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 STAGES OF EXECUTION
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Attempted Felony

and return to the path of righteousness. (Viada, Cod. 35-

36)
One who takes part in planning a criminal act but desists
in its actual commission is exempt from criminal liability. For
after taking part in the planning, he could have desisted from
taking part in the actual commission of the crime by listening
to the call of his conscience. (People vs. No.
Feb. 28, 1974, 55 SCRA 640, 654)

The desistance may be through fear or remorse. (People vs.

Pambaya, See 60 Phil. 1022) It is not necessary that it be actuated
by a good motive. The Code requires only that the discontinuance of
the crime comes from the person who has begun it, and that he stops
of his own free will. (Albert)

The desistance should be made before all the acts of

execu- tion are performed.
A stole a chicken under the house of B one evening. Realizing
that what he did was wrong, A returned the chicken to the place
under the house of B. Since the crime of theft was already consum-
the return of the stolen property does not relieve A of criminal
responsibility. A had already performed all the acts of execution
which produced the crime of theft before he returned the chicken.
A attacked and wounded B in the abdomen with a sharp-edged
weapon, causing a wound serious enough to have produced death. A
was about to assault B again; but this time, A desisted and left B. B
was taken to the hospital by another person. Because of the timely
and skillful medical treatment by a physician, B did not die. It will be
noted that when A desisted, he had already inflicted a mortal wound
on B, which could have produced his death were it not for the timely
intervention of a A is liable for frustrated

The desistance which exempts from criminal liability has

reference to the crime intended to be committed, and has
no reference to the crime actually committed by the
offender before his desistance.
A, with intent to kill, fired his pistol at B, but did not hit the
latter. B cried and asked A not to shoot him. A desisted from firing
his pistol again at B. Is A criminally liable?

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Art. 6 STAGES OF EXECUTION
Attempted Felony

Yes, not for attempted homicide because he desisted before he

could perform all the acts of execution, but for grave threats which
was already committed by him when he
It must be borne in mind that the spontaneous desistance of
a malefactor exempts him from criminal liability for the intended
crime but it does not exempt him from the crime committed by him
before his desistance.(People vs. Lizada, G.R. Nos. 143468-72, Jan.

Illustration of a case where the accused inflicted injury.

The issue before the court was: Should an accused who admit-
tedly shot the victim but is shown to have inflicted only a slight
wound be held accountable for the death of the victim due to a fatal
wound caused by his co-accused? Held: The slight wound did not
cause the death of the victim nor materially contribute to it. His
liability should therefore be limited to the slight injury he caused.
However, the fact that he inflicted a gunshot wound on the victim
shows the intent to kill. The use of a gun fired at another certainly
leads to no other conclusion than that there is intent to kill. He is
therefore liable for the crime of attempted homicide and not merely
for slight physical injury. Jr. vs. Court of Appeals, G.R.
No. 43527, July 3, 1990, 187 SCRA 123 , 126, 133-134)

Subjective phase of the offense.

In attempted felony, the offender never passes the subjective
phase of the offense.

of subjective phase of the offense.

It is that portion the acts constituting the crime, starting from
the point where the offender begins the commission of the crime to
that point where he has still control over his including their
(acts') natural course.
If between these two points the offender is stopped by any cause
outside of his own voluntary desistance, the subjective phase has not
been passed and it is an attempt. If he is not so stopped but continues
until he performs the last act, it is frustrated, provided the crime is
not The acts then of the offender reached the objective phase
of the crime.

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Frustrated Felony

Thus, if A, with intent to kill, mixes poison in the soup intended

for B, and B begins to take into his mouth a spoonful of it, until this
point, A can still prevent the poisoning of B by voluntarily desist-
ing and telling B to throw away the substance from his mouth as it
contains poison. But from the moment B swallows it, A has no more
control over his acts. The poison is now in B's stomach and it will
require the intervention of a physician to prevent the poisoning of
B.

If because of the intervention of the physician, B did not die, A

will be liable for frustrated murder. The acts performed by A, following
their natural course, passed from the subjective phase to the objective
phase of the crime.

Frustrated felony.
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a
consequence;
3. But the felony is not produced;
4. By reaso n of c au se s independent of the will of the
perpetrator.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony;
and (2) that the felony is not produced due to causes independent of
the perpetrator's will. (People vs. G.R. No. 88724, April

IM PO RT AN T WORD S AN D P H R A S E S .

1. all the acts of execution."

In frustrated felony, the offender must perform all the acts of
execution. Nothing more is left to be done by the offender, because
he has performed the last act necessary to produce the crime. This
element distinguishes frustrated felony from attempted felony.
In attempted felony, the offender does not perform all the acts of
execution. He does not perform the last act necessary to produce the
crime. He merely commences the commission of a felony directly by
overt acts.

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Art. 6 STAGES OF EXECUTION
Frustrated Felony

Thus, if A, with intent to kill, fires his gun at B, the discharge

of the gun is only an overt act. If the slug fired from the gun misses
B or the wound inflicted on B is not mortal, the last act necessary to
produce the crime of homicide is not yet performed by A. But if the
wound inflicted is mortal, that is, sufficient to cause death, A performs
the last act. If no medical attendance is given, B would surely die. In
homicide or murder, the crime is consummated if the victim dies. If
the victim survives, the crime is frustrated. (See U.S. vs. Eduave, 36
Phil. 209)

The Supreme Court in certain cases has emphasized the

belief of the accused.

People vs. Sy Pio

(94 Phil. 885)

Facts: The accused entered a store and once inside, he fired his
.45 caliber pistol at the Chinaman Sy who was hit fatally. who
was in the store asked him why he fired the shot and without answering
him, the accused fired at Kiap, hitting him on the right shoulder. Upon
being hit, Kiap immediately ran behind the store to hide and he heard
the accused fire at several other directions before he ran away. The
wound of Kiap healed in 20 days and was inflicted on the part of his
body which could not have produced his death. For shooting Kiap, the
accused was prosecuted for and declared guilty of frustrated murder
in the Court of First Instance.

Held: The fact that Kiap was able to escape, which the accused
must have seen, must have produced in the mind of the accused the
belief that he was not able to hit his victim at a vital part of the body.
In other words, the accused knew that he had not actually performed
all the acts of execution necessary to kill his victim.
The accused is guilty of attempted murder, because he did not
perform all the acts of execution, actual and subjective, in order that the
purpose and intention that he had to kill his victim might be carried

In other cases, the Supreme Court stated —

Deadly weapons were used, blows were directed at the vital
parts of the body, the aggressors stated their purpose to kill and
thought they had killed. The subjective phase of the crime was entirely
passed, and subjectively speaking, the crime was complete. The

106
 STAGES OF EXECUTION
Art. 6
Frustrated Felony

felony is not produced by reason of causes independent of the will of

the perpetrators; in this instance, the playing possum by the victim,
that is, he escaped death from the aggressors by the ruse of feigning
death. (People vs. 47 Phil. 770)
The defendant believed that he had performed all of the acts
necessary to consummate the crime of murder, and, therefore, of his
own will, desisted from striking further blows. He believed that he
had killed Keng Kin. Death did not result for reasons entirely apart
from the will of the defendant. This surely stamps the crime as
frustrated murder. If, after the first blow, someone had rushed to the
assistance of Keng Kin and by his efforts had prevented the accused
from proceeding further in the commission of the crime, the defendant
not believing that he had performed all of the acts necessary to cause
death, he would have been guilty of attempted murder. (U.S. vs.
San, cited in People vs. Dagman, 47 Phil. 771)
The aggressor stated his purpose to kill, thought he had killed,
and threw the body into the bushes. When he gave himself up, he
declared that he had killed the complainant. But as death did not
result, the aggressor was guilty of frustrated murder. (U.S. vs.
Eduave, 36 Phil. 210)
The belief of the accused need not be considered. What should
be considered is whether all the acts of execution performed by the
offender "would produce the felony as a
In crimes against persons, as homicide, which requires the
victim's death to consummate the felony, it is necessary for the
frustration of the same that a mortal wound be inflicted, because
then the wound could produce the felony as a consequence. (People
vs. Guihama, et 13 C.A. Rep. 557)

In the following cases, the stage of execution was held to

be frustrated, because the wound inflicted was mortal:
a. People vs. Honrada, 62 Phil. where the accused stabbed
the offended party in the abdomen, penetrating the liver,
and in the chest. It was only the prompt and skillful medical
treatment which the offended party received that saved his
life.
b. People vs. Mercado, 51 Phil. 99, where the accused wounded
the victim in the left abdomen with a sharp-edged weapon,

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Art. 6 STAGES OF EXECUTION
Frustrated Felony

causing a wound in the cavity, serious enough

to have produced death.
People vs. David, 60 Phil. 93, where the accused in firing
his revolver at the offended party hit him in the upper side
of the body, piercing it from side to side and perforating the
lungs. The victim was saved due to adequate and timely
intervention of medical science.

In the following cases, the stage of execution was held to

be attempted, because there was no wound inflicted or
the wound inflicted was not mortal.
a. U.S. vs. Bien, 20 Phil. 354, where the accused threw a
Chinaman into the deep water, and as the Chinaman did
not how to swim, he made efforts to keep himself afloat
and seized the gunwale of the boat, but the accused tried to
loosen the hold of the victim with the oar. The accused was
prevented from striking the latter by other persons. Since the
accused had the intent to kill the offended party, the former
actually committed attempted homicide against the latter.
b. People vs. Kalalo, et 59 Phil. 715, where the accused
fired four successive shots at the offended party while the
latter was fleeing to escape from his assailants and save his
own life. Not having hit the offended party, either because
of his poor aim or because his intended victim succeeded
in dodging the shots, the accused failed to perform all
the acts of execution by reason of a cause other than his
spontaneous desistance.
Even if no wound was inflicted, the assailant may
be convicted of attempted homicide, provided he had the
intent to kill the offended party. (People vs. Aban, CA-G.R.
No. November 30, 1954)

People vs. Domingo, CA-G.R. No. April

where two physicians called to the witness stand by the
prosecution could not agree that the wounds inflicted upon
the complainant would cause death. One of them, Dr.
Rotea, testified that the wounds were not serious enough
to produce death even if no medical assistance had been
given to the offended party.

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 STAGES OF EXECUTION
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Frustrated Felony

d. People vs. et 52 O.G. 3973, where the head of

the offended party was merely grazed by the shot which
hit him, the wound being far from fatal.
2. produce the felony as a consequence."

All the acts of execution performed by the offender could have

produced the felony as a consequence.

Thus, when A approached B stealthily from behind and made a

movement with his right hand to strike B on the back with a deadly
knife, but the blow, instead of reaching the spot intended, landed on
the frame of the back of the chair on which B was sitting at the time
and did not cause the slightest physical injury on B, the stage of execu-
tion should have been that of attempted murder only, because without
inflicting a deadly wound upon a vital spot of which B should have
died, the crime of murder would not be produced as a consequence.

The case of People vs. Borinaga, 55 Phil. 433 , is now superseded

by the case People vs. Kalalo, 59 Phil. 715, which sustains the above
opinion. In crimes against persons, such as murder, which require
that the victim should die to consummate the felony, it is necessary
for the frustration of the same that a mortal wound is inflicted.
Thus, in his dissenting opinion in the case People vs. Borinaga,
supra, Justice Villareal said: "It is true that the frame of the back of
the chair stood between the deadly knife and the back of Mooney; but
what it prevented was the wounding of said Mooney in the back and
not his death, had he been wounded. It is the preventing of death by
causes independent of the will of the perpetrator, after all the acts of
execution had been performed, that constitutes frustrated felony (of
murder), and not the preventing of the performance of all the acts of
execution which constitute the

3. not produce it."

In frustrated felony, the acts performed by the offender do not
produce the felony, because if the felony is produced it would be con-
summated.

4. of the will of the perpetrator."

Even if all the acts of execution have been performed, the crime
may not be consummated, because certain causes may prevent its

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Art. 6 STAGES OF EXECUTION
Frustrated Felony

consummation. These certain causes may be the intervention of third

persons who prevented the consummation of the offense or may be
due to the perpetrator's own will.
If the crime is not produced because of the timely intervention
of a third person, it is frustrated.
If the crime is not produced because the offender himself
prevented its consummation, there is no frustrated felony, for the 4th
element is not present.
Note that the 4th element says that the felony is not produced
reason of causes independent the will of the perpetrator." Hence,
if the cause which prevented the consummation of the offense was
the perpetrator's own and exclusive will, the 4th element does not
exist.

Problem:
A doctor conceived the idea of killing his wife, and to carry out
his plan, he mixed arsenic with the soup of his victim. Immediately
after the victim took the poisonous food, the offender suddenly
felt such a twinge of conscience that he himself washed out the
stomach of the victim and a d m i n i s t e r e d to her the ad eq u ate
antidote. Would this be a frustrated parricide? Certainly not,
for even though the subjective phase of the crime had already
been passed, the most important requisite of a frustrated crime,
i.e., that the cause which preven ted the con su mmati on of the
offense be independent of the will of the perpetrator, was lacking.
(Guevara)

The crime cannot be considered attempted parricide, because

the doctor already performed all the acts of execution. At most, the
crime committed would be physical injuries, as the poison thus
administered, being an injurious substance, could cause the same.
The intent to kill which the doctor entertained in the beginning
disappeared when he prevented the poison from producing the death
of his wife.

Is there frustration due to inadequate or ineffectual means?

Such a frustration is placed on the same footing as an impossible
attempt. (Albert)

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 STAGES OF EXECUTION
Art. 6
Frustrated Felony

Frustrated felony distinguished from attempted felony.

1. In both, the offender has not accomplished his criminal
purpose.

2. While in frustrated felony, the offender has performed all

the acts of execution which would produce the felony as
a consequence, in attempted felony, the offender merely
commences the commission of a felony directly by overt
acts and does not perform all the acts of execution.
In other words, in frustrated felony, the offender
has reached the objective phase; in attempted felony, the
offender has not passed the subjective phase.

The essential element which distinguishes attempted from

frustrated felony is that, in the latter, there is no intervention of a
foreign or extraneous cause or agency between the beginning of the
consummation of the crime and the moment when all of the acts have
been performed which should result in the consummated crime; while
in the former there is such intervention and the offender does not
arrive at the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause apart from
his own voluntary desistance. (People vs. G.R. No. 88724, April
3, 1990, 184 SCRA 105, 113, quoting U.S. vs. Eduave, 36 Phil. 209,
212)

Attempted or frustrated felony distinguished impossible

crime.
(1) In attempted or frustrated felony and impossible crime,
the evil intent of the offender is not accomplished.
(2) But while in impossible crime, the evil intent of the offender
cannot be accomplished, in attempted or frustrated felony
the evil intent of the offender is possible of accomplish-
ment.
(3) In impossible crime, the evil intent of the offender cannot
be accomplished because it is inherently impossible of
accomplishment or because the means employed by the
offender is inadequate or ineffectual; in attempted or
frustrated felony, what prevented its accomplishment is
 Art. 6 STAGES OF EXECUTION
Consummated Felony

the intervention of certain cause or accident in which the

offender had no part.

Consummated felony.
A felony is consummated when all the elements necessary for
its execution and accomplishment are present.

IMPO RT ANT WORD S AN D P H R A S E S .

the elements" necessary for its execution and accomplishment
"are present."
In consummated felony, all the elements necessary for its
execution and accomplishment must be present. Every crime has
its own elements which must all he present to constitute a culpable
violation of a precept of law.

When not all the elements of a felony are proved.

When a felony has two or more elements and one of them is not
proved by the prosecution during the trial, either (1) the felony is
not shown to have been consummated, or (2) the felony is not shown
to have been committed, or (3) another felony is shown to have been
committed.
Thus, in the prosecution for homicide where the death of the
victim is an element of the offense, if that element is absent, because
the victim does not die, the crime is not consummated. It is either
attempted or frustrated.
In taking personal property from another, when the element of
intent to gain is lacking on the part of the person taking it, the crime
of theft is not committed.
In the prosecution for estafa (Art. 315), if the element of deceit
or abuse of confidence is not proved, there is no crime. There is only
civil liability.
But if the element of damage only is not proved, the accused
may be found guilty of attempted or frustrated estafa.
In the prosecution for robbery with violence against persons
(Art. 294), if the element of intent to gain is not proved, the accused
can be found guilty of grave coercion (Art. 286), another felony.

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Art. 6
How to Determine the Three Stages

In the prosecution for forcible abduction (Art. 342), if the element

of lewd designs is not proved, the accused may be held liable for
kidnapping and serious illegal detention (Art. 267), another
Hence, all the elements of the felony for which the accused is
prosecuted must be present in order to hold him liable therefor in its
consummated stage.

How to determine whether the crime is only attempted or

frustrated or it is consummated.
In determining whether the felony is only attempted or frustrated
or it is consummated, (1) the nature of the offense, (2) the elements
constituting the felony, as well as (3) the manner of committing the
same, must be considered.

Nature of crime.
Arson (Arts. 320-326). — In arson, it is not necessary that the
property is totally destroyed by fire. The crime of arson is therefore,
consummated even if only a portion of the wall or any other part of
the house is burned. The consummation of the crime of arson does not
depend upon the extent of the damage caused. (People vs. Hernandez,
54 Phil. 122) The fact of having set fire to some rags and jute sacks,
soaked in kerosene oil, and placing them near the wooden partition of
the house, should not be qualified as consummated arson, inasmuch
as no part of the house began to burn. It is frustrated arson. (U.S.
vs. Valdes, 39 Phil. 240)
When a person had poured gasoline under the house of another
and was about to strike a match to set the house on fire when he was
apprehended, he was guilty of attempted arson. The acts performed
by him are directly connected with the crime of arson, the offense he
intended to commit. The pouring of the gasoline under the house and
the striking of the match could not be for any other purpose.
If there was blaze, but no part of the house is burned, the crime
of arson is frustrated. If any part of the house, no matter how small,
is burned, the crime of arson is consummated.

Elements constituting the felony.

In theft, the crime is consummated when the thief is able to
take or get hold of the thing belonging to another, even if he is not

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Art. 6 STAGES OF EXECUTION
How to Determine the Three Stages

able to carry it away. In estafa, the crime is consummated when the

offended party is actually damaged or prejudiced.
Theft. — A Customs inspector abstracted a leather belt
from the baggage of a Japanese and secreted it in the drawer
of his desk in the Customs House, where it was found by other
Customs employees. The Court of First Instance convicted him of
frustrated theft. The Supreme Court considered it consummated
theft, because all the elements necessary for its execution and
accomplishment were present. (U.S. vs. Adiao, 38 Phil. 754)
Actual taking with intent to gain of personal property,
belonging to another, without the latter's consent, is sufficient
to constitute consummated theft. It is not necessary that the
offender carries away or appropriates the property taken.
Estafa. — Defendant was a salesman of the Philippine
Education Company. After he had received for the sale
of books, which he should have given to the cashier, he put it
in his pocket with intent to misappropriate the amount. Held:
This is frustrated estafa. (U.S. vs. Dominguez, 41 Phil. 408)
The accused performed all the acts of execution. However,
the crime was not consummated as there was no damage caused
in view of the timely discovery of the felonious act. In this kind
of estafa the elements of (1) abuse of confidence, and (2) damage
to the offended party must concur.

Is there a conflict in the rulings of the Adiao case and

Dominguez case?
In the Adiao case, the theft was consummated although the
belt was only secreted in defendant's desk. In the Dominguez case,
the estafa was only frustrated even if the sales money was already
in defendant' s pocket. Apparently, they should both be either
consummated or frustrated. The difference lies in the elements of the
two crimes. In estafa, the offended party must be actually prejudiced
or damaged. This element is lacking in the Dominguez case. In theft,
the mere removal of the personal property belonging to another with
intent to gain is sufficient. The act of removing the personal property
constitutes the element of taking in theft. In the Adiao case, only
the element of taking is in question. And that element is considered
present because he abstracted (removed) the leather belt from the

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Art. 6
How to Determine the Three Stages

baggage where it was kept and secreted it in the drawer of his desk.
The taking was complete.

Frustrated theft.
A truck loaded with stolen boxes of rifles was on the way out
of the check point in South Harbor surrounded by a tall fence when
an MP guard discovered the boxes on the truck. It was held that the
crime committed was frustrated theft, because of the timely discovery
of the boxes on the truck before it could pass out of the check point.
(People vs. Dino, C.A., 45 O.G. 3446)
In the Supply Depot at Quezon City, the accused removed from
the pile nine pieces of hospital linen and took them to their truck
where they were found by a corporal of the MP guards when they
tried to pass through the check point. It was held that the crime com-
mitted was consummated theft. (People vs. et CA-G.R.
No. May 31 , 1949)

Distinguished from the case.

In the Espiritu case, it was held that the crime of theft was
consummated because the thieves were able to take or get hold of
the hospital linen and that the only thing that was frustrated, which
does not constitute any element of theft, is the use or benefit that the
thieves expected to derive from the commission of the offense.
In the case, it was held that the crime committed is that of
frustrated theft, because the fact determinative of consummation in
the crime of theft is the ability of the offender to dispose freely of the
articles stolen, even if it were more or less momentarily. The Court
of Appeals followed the opinion of Viada in this case. (See 5 Viada,
103)
When the meaning of an element of a felony is controversial,
there is bound to arise different rulings as to the stage of execution
of that felony.

Example of attempted theft.

The accused was found inside a parked jeep of Captain Parker by
an American MP. The jeep's padlock had been forced open and lying
between the front seats and the gearshift was an iron bar. Captain
Parker was then inside a theater. It was held that the accused already

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Art. 6 STAGES OF EXECUTION
How to Determine the Three Stages

commenced to carry out his felonious intention, and that if he did

not perform all the acts of execution which should have produced the
crime of theft, it was because of the timely arrival of the MP. The overt
acts of the accused consisted in forcing open the padlock locking the
gearshift to a ring attached to the dashboard which was placed there
to avoid the jeep from being stolen. (People vs. De la Cruz, C.A., 43
O.G. 3202)

Example of attempted estafa by means of deceit.

The accused fraudulently assumed authority to demand fees for the
Bureau of Forestry, when he noticed that a timber was cut in the forest
by the complainant without permit and used it in building his house.
The accused tried to collect from the complainant ostensibly to
save him from paying a fine and to prepare for him a petition to obtain
a permit to cut timber. The complainant refused or was unable to give
to the accused. (U.S. vs. Villanueva, 1 Phil. 370)

The fraudulent and false representations of the accused that he

was authorized to collect is the overt act. The refusal or inability
of the complainant to give to the accused is a cause which
prevented the latter from performing all the acts of execution.

Examples of frustrated estafa by means of deceit.

The accused offered to give complainant a job as office boy in
Ft. with a salary of P25.00 , but asked for X-ray
examination. The representation of the accused that the amount of
was for X-ray examination was false. Complainant handed to
him and while taking the remaining five centavos from his
pocket, a policeman placed the accused under arrest. (People vs.
Gutierrez, C.A., 40 O.G., Supp. 4, 125)
Where the accused, who made false pretenses, is apprehended
immediately after receiving the money from the complainant inside
the compound of the latter's employer, pursuant to a pre-arranged
plan with the authorities, the crime committed is frustrated, and not
consummated, estafa. (People vs. Castillo, C.A., 65 O.G. 1065)

Mere removal of personal property, not sufficient to consummate the

crime of robbery by the use of force upon things.
The culprits, after breaking the floor of the bodega through
which they entered the same, removed a sack of sugar from the pile;

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 STAGES OF EXECUTION
Art. 6
How to Determine the Three Stages

but were caught in the act of taking it out through the opening on
the floor. Held: Frustrated robbery. (People vs. Del C.A., 46
O.G. 4332)

In robbery by the use of force upon things (Arts. 299 and 302),
since the offender must enter the building to commit the crime, he
must be able to carry out of the building the thing taken to consum-
mate the crime.

In robbery with violence against or intimidation of persons (Art.

294), the crime is consummated the moment the offender gets hold
of the thing taken or is in a position to dispose of it freely.

Element of intent to kill, when present in inflicting physical

injuries.
If any of the physical injuries described in Articles 263, 264, 265
and 266 is inflicted with intent to kill on any of the persons mentioned
in Article 246, or with the attendance of any of the circumstances
enumerated in Article 248, the crime would be either attempted or
frustrated parricide or murder as the case may be.

Defendant with a pocket knife inflicted several wounds on the

victim. The words "until I can kill you" were uttered by the assailant.
Held: Attempted homicide, not physical injuries, because the inten-
tion to kill is evident. (U.S. vs. Joven, 44 Phil. 796)
The accused inflicted bolo wounds on the shoulder and across the
lips of the victim and then withdrew. Held: Not frustrated homicide,
but serious physical injuries as the accused probably knew that the
injuries were not such as should produce death. Intent to kill was not
present. (U.S. vs. Maghirang, 28 Phil. 655)
The facts indicate that the petitioner had no intention to kill
the offended party. Thus, petitioner started the assault on the of-
fended party by just giving him fist blows; the wounds inflicted on
the offended party were of slight nature; the petitioner retreated and
went away when the offended party started hitting him with a bolo,
thereby indicating that if the petitioner had intended to kill the of-
fended party, he would have held his ground and kept on hitting the
offended party with his bolo to kill him. The element of intent to kill
not having been fully established, and considering that the injuries
suffered by the offended party were not necessarily fatal and could be
healed in less than 30 days, the offense committed by the petitioner

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 Art. 6 STAGES OF EXECUTION
How to Determine the Three Stages

is only that of less serious physical injuries. (Mondragon vs. People,

17 SCRA 476)
Where the accused voluntarily left their victim after giving him
a sound thrashing, without inflicting any fatal injury, although they
could have easily killed their said victim, considering their superior
number and the weapons with which they were provided, the intent
to kill on the part of the accused is wanting and the crime committed
is merely physical injuries and not attempted murder. (People vs.
Malinao, [CA] 57 O.G. 2328)

Manner of committing the crime.

Formal crimes — consummated in one instant, no attempt.
There are crimes, like slander and false testimony, which
are consummated in one instant, by a single act. These are formal
crimes.
As a rule, there can be no attempt at a formal crime,
because between the thought and the deed there is no chain of
acts that can be severed in any link. Thus, in slander, there is
either a crime or no crime at all, depending upon whether or
not defamatory words were spoken publicly. (Albert)
In the sale of marijuana and other prohibited drugs, the
mere act of selling or even acting as broker consummates the
crime. (People vs. Marcos, G.R. No. 83325 , May 8, 1990, 185
SCRA 154, 166)
2. Crimes consummated by mere attempt or proposal or by overt act.
Flight to enemy's country (Art. 121). — In this crime the mere
attempt to flee to an enemy country is a consummated felony.
Corruption of minors (Art. 340). — A mere proposal to
the minor to satisfy the lust of another will consummate the
offense.
There is no attempted crime of treason, because the overt
act in itself consummates the crime. (63 C.J., Sec. 5, p. 814)
3. Felony by omission.
There can be no attempted stage when the felony is by
omission, because in this kind of felony the offender does not

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 STAGES OF EXECUTION
Art. 6
How to Determine the Three Stages

execute acts. He omits to perform an act which the law requires

him to do.
But killing a child by starving him, although apparently
by omission, is in fact by commission. (Albert)

4. Crimes the intervention two persons to commit them

are consummated by mere agreement.
In those crimes, like betting in sport contests and corruption
of public officer (Art. 197 and Art. 212), which require the
intervention of two persons to commit them, the same are
consummated by mere agreement. The offer made by one of the
parties to the other constitutes attempted felony, if the offer is
rejected. (U.S. vs. Basa, 8 Phil. 89)
In view of the rule stated, it would seem that there is no
frustrated bribery (corruption of public officer). But in the case
of People vs. Diego Quin, G.R. No. L-42653, it was held by the
Supreme Court that where the defendant fails to corrupt a
public officer, because the latter returned the money given by the
defendant, the crime committed is frustrated bribery (corruption
of public officer) under Art. 212 in relation to Art. 6.
In the case U.S. vs. Te Tong, 26 Phil. 453 , where the roll
of bills amounting to P500 was accepted by the police officer for
the purpose of using the same as evidence in the prosecution
of the accused for attempted bribery (attempted corruption of
a public officer), it was held that the accused who delivered the
money was guilty of attempted bribery.
5. Material crimes — There are three stages of execution.
Thus, homicide, rape, etc., are not consummated in one
instant or by a single act. These are the material crimes.
(a) Consummated rape. — The accused lay on top of a girl
nine years of age for over fifteen The girl testified
that there was partial penetration of the male organ in her
private parts and that she felt intense pain. Held: Entry
of the labia or lips of the female organ without rupture
of the hymen or laceration of the vagina is generally
held sufficient to warrant conviction of the accused for
consummated crime of rape. (People vs. Hernandez, 49
Phil. 980, 982)

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Art. 6 STAGES OF EXECUTION
How to Determine the Three Stages

(b) Frustrated rape. — The accused endeavored to have sexual

intercourse with a girl three years and eleven months old.
There was doubt whether he succeeded in penetrating
the vagina. Held: There being no conclusive evidence of
penetration of the genital organ of the child, the accused
is entitled to the benefit of the doubt and can only be found
guilty of frustrated rape. (People vs. 50 Phil. 998,
1000)
However, in the case of People vs. Orita, 184 SCRA
114, 115, the Supreme Court held that "x x x for the
consummation of rape, perfect penetration is not essential.
Any penetration of the female organ by the male organ is
sufficient. Entry of the labia or lips of the female organ,
without rupture of the hymen or laceration of the vagina,
is sufficient to warrant x x x Taking into
account the nature, elements and manner of execution
of the crime of rape and jurisprudence on the matter, it
is hardly conceivable how the frustrated stage in rape
can be committed." The Supreme Court further held that
the Erifia case appears to be a "stray" decision inasmuch
as it has not been reiterated in the Court's subsequent
decisions.

(c) Attempted rape. — The accused placed himself on top of a

woman, and raising her skirt in an effort to get his knees
between her legs while his hands held her arms firmly,
endeavoring to have sexual intercourse with her, but not
succeeding because the offended party was able to extricate
herself and to run away. Held: Attempted rape. (People vs.
Brocal, [CA] 36 O.G. 856)
(d) Consummated homicide. — Accused-appellant shot the
victim in the left forearm. While he and the victim were
grappling for the gun, his co-accused who has remained at
large, stabbed the victim in the chest. The victim died and
it was established that the cause of death was
secon d ary to stab woun d . Held: A c c u s e d - ap p e l l an t
was found guilty of homicide there being no qualifying
circumstance to make the killing murder. The fact that
he did not inflict the mortal wound is of no moment, since
the existence of conspiracy was satisfactorily shown by

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 STAGES OF EXECUTION
Art. 6
How to Determine the Three Stages

the evidence. (People vs. Sazon, G.R. No. 89684 , Sept.

18, 1990 , 189 SCRA 700 , 703 , 711 , 713)
(e) Frustrated murder. — The accused stabbed his two victims
as they were about to close their store in the evening. One
of the victims died while the other recovered. Held: The
assault upon the surviving victim constituted frustrated
murder, her relatively quick recovery being the result of
prompt medical attention which prevented the infection
in the wound from reachi ng fatal proportions which
would otherwise have ensued. The attack was qualified by
treachery (alevosia). (People vs. Mision, G.R. No. 63480,
Feb. 26, 1991, 194 SCRA 432 , 445-446)
(f) Attempted homicide. — The accused intended to kill
his victim but he was not able to perform all the acts
of execution necessary to consummate the killing. The
wounds inflicted did not affect vital organs. They were not
mortal. He first warned his victim before shooting him.
Held: Attempted homicide. (People vs. Ramolete, No. L-
28108, March 27, 1974, 56 SCRA 66, 82-83)

There is no attempted or frustrated impossible crime.

In impossible crime, the person intending to commit an offense
has already performed the acts for the execution of the same, but
nevertheless the crime is not produced by reason of the fact that
the act intended is by its nature one of impossible accomplishment
or because the means employed by such person are essentially
inadequate or ineffectual to produce the result desired by him.
Art. 59, Revised Penal Code)
Therefore, since the offender in impossible crime has already
performed the acts for the execution of the same, there could be no
attempted impossible crime. In attempted felony, the offender has not
performed all the acts of execution which would produce the felony
as a consequence.
There is no frustrated impossible crime, because the acts per-
formed by the offender are considered as constituting a consummated
offense.

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Art. 7 LIGHT FELONIES WHEN PUNISHABLE

Art. 7. When light felonies are punishable. — Light fel on i es are

p u n i s h a b l e onl y w h e n the y hav e b ee n c o n s u m m a t e d , wit h th
e e x c e p t i o n o f th os e c o m m i t t e d a g a i n s t p e r s o n s o r p rop er ty .

What are light felonies?

Light felonies are those infractions of law for the commission of
which the penalty arresto or a fine not exceeding 200 pesos,
or both, is provided. (Art. 9, par. 3)

The light felonies punished by the Revised Penal Code:

1. Slight physical injuries. (Art. 266)
2. Theft. (Art. 309, pars. 7 and 8)
3. Alteration of boundary marks. (Art. 313)
4. Malicious mischief. (Art. 328, par. 3; Art. 329, par. 3)
5. Intriguing against honor. (Art. 364)
The penalty for the above-mentioned crimes is arresto menor
(imprisonment from one day to thirty days), or a fine not exceeding
P200.

IM PO RT AN T WO RD S AN D P H R A S E S .
1. "With the exception of those committed against persons or

General Rule:
Light felonies are punishable only when they have been consum-
mated.
Exception:
Light felonies committed against persons or property, are
punishable even or frustrated.

Reason for the general rule.

Light felonies produce such light, such insignificant moral and
material injuries that public conscience is satisfied with providing a

122
 CONSPIRACY AND PROPOSAL TO
Art. 8
COMMIT FELONY

light penalty for their consummation. If they are not consummated,

the wrong done is so slight that there is no need of providing a penalty
at all. (Albert)

Reason for the

The commission of felonies against persons or property presup-
poses in the offender moral depravity. For that reason, even attempted
or frustrated light felonies against persons or property are punishable.

Examples of light felonies against person:

Art. 266 — Slight physical injuries and maltreatment.

Examples of light felonies against property:

Art. 309, No. 7 — Theft by hunting or fishing or gathering
fruits, cereals or other forest or farm products upon an
inclosed estate or field where trespass is forbidden and
the value of the thing stolen does not exceed
2. Art. 309, No. 8 — Theft, where the value of the stolen prop-
erty does not exceed and the offender was prompted by
hunger, poverty, or the difficulty of earning a livelihood.
3. Art. 313 — Alteration of boundary marks.
4. Art. 328, No. 3; Art. 329, No. 3 — Malicious mischief where
the damage is not more than or if it cannot be
estimated.

Art. 8. Conspiracy and proposal to commit felony. — C on sp i r ac y

an d p rop os a l t o c o m m i t fel on y ar e p u n i s h a b l e onl y i n th e case
s i n w h i c h th e la w s p e c i a l l y p r o v i d e s a p e n a l t y th erefor.
A c o n s p i r a c y exi st s w h e n tw o o r mor e p e r s o n s com e t o a
n a g r e e m e n t c o n c e r n i n g th e c o m m i s s i o n of a fel on y an d d e ci d
e to c o m m i t it.
Th er e i s p r o p o s a l w h e n th e p e r s o n wh o ha s d e c i d e d t o
co mm i t a fel on y p r o p o s e s its e x e c u t i o n to som e oth e r p e rs o n
or p e r s o n s .

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 Art. 8 CONSPIRACY AND PROPOSAL
TO COMMIT FELONY

IMPO RT ANT WORDS AN D P H R A S E S .

"Conspiracy and proposal to commit felony."
Conspiracy and proposal to commit felony are two different
acts or felonies: (1) conspiracy to commit a felony, and (2)
proposal to commit a felony.
2. "Only in the cases in which the law specially provides a penalty
therefor."
Unless there is a specific provision in the Revised Penal
Code providing a penalty for conspiracy or proposal to commit
a felony, mere conspiracy or proposal is not a felony.

Conspiracy is not a crime except when the law specifically

provides a penalty therefor.
A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to
commit it. (Art. 8) Generally, conspiracy is not a crime except
when the law specifically provides a penalty therefor as in treason
(Art. 115), rebellion (Art. 136) and sedition (Art. 141). The crime
of conspiracy known to the common law is not an indictable
offense in the Philippines. (U.S. vs. Buanco, 14 Phil. 472
;
U.S. vs. 37 Phil. 599 , 614 ; People vs. Asaad, 55 Phil.
697) An agreement to commit a crime is a reprehensible act from
the viewpoint of morality, but as long as the conspirators do not
perform overt acts in fu rtherance of their malevolent design,
the sovereignty of the State is not outraged and the tranquility
of the public remains undisturbed. However, when in resolute
execution of a common scheme, a felony is committed by two or
more malefactors, the existence of a conspiracy assu mes pivotal
importance in the determination of the liability of the perpetrators.
(People vs. Peralta, 25 SCRA 759)

General Rule:
Conspiracy and proposal to commit felony are not punishable.
Exception:
They are punishable only in the cases in which the law
specially provides a penalty therefor.

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 CONSPIRACY AND PROPOSAL TO Art 8
COMMIT FELONY

Reason for the rule.

Conspiracy and proposal to commit a crime are only preparatory
acts, and the law regards them as innocent or at least permissible
except in rare and exceptional cases.

The Revised Penal Code specially provides a penalty for mere

conspiracy in Arts. and
Art. Conspiracy xxxto commit treason — Penalty. — The
conspiracy x x x to commit the crime of treason shall be punished x
x x by prision mayor and a fine not exceeding 10,000 pesos x x x.

Art. 136. Conspiracy x x x to commit coup rebellion or

insurrection. — The conspiracy x x x to commit coup d'etat shall be
punished by prision mayor in its minimum period and a fine which
shall not exceed 8,000 pesos.
The conspiracy x x x to commit rebellion or insurrection shall
be punished x x x by prision correccional in its maximum period and
a fine which shall not exceed 5,000 pesos xxx. (As amended by Rep.
Act No. 6968)
Art. 141. Conspiracy to commit sedition. — Persons conspiring
to commit the crime of sedition shall be punished by prision mayor in
its medium period and a fine not exceeding 2,000 pesos. (As amended
by P.D. No. 942)

Treason, coup d'etat rebellion or sedition should not be

actually committed.
The conspirators should not actually commit treason, coup d'etat
rebellion or sedition. It is sufficient that two or more persons agree
and decide to commit treason, rebellion or sedition.
If they commit, say, treason, they will be held liable for treason,
and the conspiracy which they had before committing treason is only
a manner of incurring criminal liability. It is not a separate offense.

Conspiracy as a felony, distinguished from conspiracy as a

manner of incurring criminal liability.
When the conspiracy relates to a crime actually committed, it
is not a felony but only a manner of incurring criminal liability, that
is, when there is conspiracy, the act of one is the act of all.

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 Art. 8 CONSPIRACY AND PROPOSAL
TO COMMIT FELONY

Even if the conspiracy relates to any of the crimes of treason,

rebellion and sedition, but any of them is actually committed, the
conspiracy is not a separate it is only a manner of incurring
criminal liability, that is, all the conspirators who carried out their
plan and personally took part in its execution are equally liable. The
offenders are liable for treason, rebellion, or sedition, as the case may
be, and the conspiracy is absorbed.
When conspiracy is only a manner of incurring criminal liability,
it is not punishable as a separate offense.

Illustrations of conspiracy as felony and as a manner of

incurring criminal liability.
1. A and B agreed and decided to rise publicly and take arms
against the government with the help of their followers. Even if
they did not carry out their plan to overthrow the government,
A and B are liable for conspiracy to commit rebellion under Art.
136 of the Revised Penal Code.
But if A and B and their followers did rise publicly and
take arms against the government to overthrow it, thereby
committing rebellion, their conspiracy is not a felony. They are
liable for rebellion and their conspiracy is only a manner of
incurring criminal liability for rebellion.
2. A, B, and C, after h avin g conceived a criminal plan, got
together, agreed and decided to kill D. If A, B and C failed to
carry out the plan for some reason or another, they are not
liable for having conspired against D, because the crime they
conspired to commit, which is murder, is not treason, rebellion
or sedition.
But if they carried out the plan and personally took part in its
execution which resulted in the killing of D, they are all liable for
murder, even if A merely acted as guard outside the house where
D was killed and B merely held the arms of D when C stabbed him
to death. Their conspiracy is only a manner of incurring criminal
liability for murder. It is not an offense, not only because a crime
was committed after the conspiracy, but also because conspiracy to
commit murder is not punished in the Revised Penal Code.

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 CONSPIRACY AND PROPOSAL TO
Art. 8
COMMIT FELONY

Indications of conspiracy.
When the defendants by their acts aimed at the same object,
one performing one part and the other performing another part so as
to complete it, with a view to the attainment of the same object, and
their acts, though apparently independent, were in fact concerted and
cooperative, indicating closeness of personal association, concerted
action and concurrence of sentiments, the court will be justified in
concluding that said defendants were engaged in a conspiracy. (People
vs. No. L-35700, Oct. 53 SCRA 246, 254)
Thus, an accused has been held as a co-conspirator as the cir-
cumstances of his participation indubitably showed unity of purpose
and unity in the execution of the unlawful acts, gleaned from that
fact that he knew of the plot to assassinate the victim as he too had
been ordered to scout for a man who could do the job; he also knew
exactly the place where the killing was to take place and also the date
and approximate time of the assault. (People vs. Cantuba, G.R. No.
79811 , March 19, 1990, 183 SCRA 289, 298)

For a collective responsibility among the accused to be estab-

lished, it is sufficient that at the time of the aggression, all of them
acted in concert, each doing his part to fulfill their common design
to kill their victim, and although only one of them may have actually
stabbed the victim, the act of that one is deemed to be the act of all.
(People vs. Hernandez, G.R. No. 90641 , Feb. SCRA 794,
798)

The acts of the defendants must show a common design.

It is fundamental for conspiracy to exist that there must be unity
of purpose and unity in the execution of the unlawful objective. Here,
appellants did not act with a unity of purpose. Even assuming that
appellants have joined together in the killing, such circumstances
alone do not satisfy the requirement of a conspiracy because the rule
is that neither joint nor simultaneous action is per se sufficient proof
of conspiracy. It must be shown to exist as clearly and convincingly
as the commission of the offense itself. Obedience to a command does
not necessarily show concert of design, for at any rate it is the acts of
the conspirators that show their common design.
Although the defendants are relatives and had acted with some
degree of simultaneity in attacking their victim, nevertheless, this

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Art. 8 CONSPIRACY AND PROPOSAL
TO COMMIT FELONY

fact alone does not prove conspiracy. (People vs. No.

Nov. 29, 1973, 54 SCRA 172, 186-188)

People vs.
(167 439)

Facts: The deceased Miranda, a 25-year-old retardate, and the

accused Pugay were friends. On the evening of May 19, 1982, while
a town fiesta was being held in the public the group of accused
Pugay and Samson saw the deceased walking nearby, and started mak-
ing fun of him. Not content with what they were doing, accused Pugay
suddenly took a can of gasoline from under the engine of a wheel
and poured its contents on the body of Miranda. Then, the accused
Samson set Miranda on fire making a human torch out of him.
Held: Where there is nothing in the records showing that there
was previous conspiracy or unity of criminal purpose between the
two accused immediately before the commission of the crime, where
there was no animosity between the deceased and the accused and it
is clear that the accused merely wanted to make fun of the deceased,
the respective criminal responsibility of the accused arising from
different acts directed against the deceased is individual and not
collective, and each of them is liable only for the act committed by
him.

Period of time to afford opportunity for meditation and reflection, not

required in conspiracy.
Unlike in evident premeditation, where a sufficient period of time
must elapse to afford full opportunity for meditation and reflection and
for the perpetrator to deliberate on the consequences of his intended
deed (U.S. vs. Gil, 13 Phil. 330), conspiracy arises on the very instant
the plotters agree, expressly or impliedly, to commit the felony and
forthwith decide to pursue it. Once this assent is established, each
and everyone of the conspirators is made criminally liable for the
crime, committed by anyone of them. (People vs. Monroy, et 104
Phil. 759)

Art. of the Revised Penal Code punishing conspiracy.

Art. 186. Monopolies and combinations in restraint of trade.
— The penalty of prision correccional in its minimum period or a
fine ranging from two hundred to six thousand pesos, or both, shall
be imposed upon:

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 CONSPIRACY AND PROPOSAL TO
Art. 8
COMMIT FELONY

Any person who shall enter into any contract or agreement

or shall take part in any conspiracy or combination in the
form of a trust or otherwise, in restraint of trade or com-
merce or to prevent by artificial means free competition in
the market.
2.

3. Any person who, being a manufacturer, producer,

shall combine, conspire or agree with any person x
x x for the purpose of making transactions prejudicial to
lawful commerce, or of increasing the market price
of any such merchandise

Requisites of conspiracy:
That two or more persons came to an agreement;
2. That the agreement concerned the commission of a felony;
and
3. That the execution of the felony be decided upon.
1st element — agreement presupposes meeting of the minds
of two or more persons.
Thus, the fact that a document is discovered purporting to be
a commission appointing the defendant an officer of armed forces
against the Government does not prove conspiracy, because it was
not shown that defendant received or accepted that commission. (U.S.
vs. Villarino, 5 Phil. 697)
2nd element — the agreement must refer to the commission of
a crime. It must be an agreement to act, to effect,
to bring about what has already been conceived
and determined.
Thus, the mere fact that the defendant met and aired some
complaints, showing discontent with the Government over some real
or fancied evils, is not sufficient. (U.S. vs. Figueras, 2 Phil. 491)
3rd element — the conspirators have made up their minds to
commit the crime. There must be a determina-
tion to commit the crime of treason, rebellion
or sedition.

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Art. 8 CONSPIRACY AND PROPOSAL
TO COMMIT FELONY

Direct proof is not essential to establish conspiracy.

Article 8 of the Revised Penal Code provides that there is
conspiracy when two or more persons agree to commit a crime
and decide to commit it. Direct proof is not essential to establish
conspiracy, and may be inferred from the collective acts of the accused
before, during and after the commission of the crime. Conspiracy can
be presumed from and proven by acts of the accused themselves when
the said acts point to a joint purpose and design, concerted action
and community of interests. It is not necessary to show that all the
conspirators actually hit and killed the victim. Conspiracy renders
all the conspirators as co-principals regardless of the extent and
character of their participation because in contemplation of law, the
act of one conspirator is the act of all. (People vs. Buntag, G.R. No.
123070, April 14, 2004)

Quantum of proof required to establish conspiracy.

Similar to the physical act constituting the crime itself, the
elements of conspiracy must be proven beyond reasonable doubt. Settled
is the rule that to estabish conspiracy, evidence of actual cooperation
rather than mere cognizance or approval of an illegal act is
A conspiracy must be established by positive and conclusive
evidence. It must be shown to exist as clearly and convincingly as
the commission of the crime itself. Mere presence of a person at the
scene of the crime does not make him a conspirator for conspiracy
transcends companionship.
The evidence shows that George Comadre and Danilo Lozano
did not have any participation in the commission of the crime and
must therefore be set free. Their mere presence at the scene of the
crime as well as their close relationship with Antonio are insufficient
to establish conspiracy considering that they performed no positive
act in furtherance of the crime.
Neither was it proven that their act of running away with An-
tonio was an act of giving moral assistance to his criminal act. The
ratiocination of the trial court that "their presence provided encour-
agement and sense of security to is devoid of any factual
basis. Such finding is not supported by the evidence on record and
cannot therefore be a valid basis of a finding of conspiracy. (People
vs. Comadre, G.R. No. 153559, June 8, 2004)

130
 CONSPIRACY AND PROPOSAL TO
Art. 8
COMMIT FELONY

The Revised Penal Code specially provides a penalty for mere

proposal in Arts. and
Art. 115. proposal to commit treason — Penalty. — The
proposal to commit the crime of treason shall be punished
by prision correccional and a fine not exceeding 5,000 pesos.

Art. 136. proposal to commit coup d'etat rebellion or

insurrection. — The proposal to commit coup d'etat shall be
punished by prision mayor in its minimum period and a fine which
shall not exceed 8,000 pesos.

The proposal to commit rebellion or insurrection shall be

punished x x x by prision correccional in its medium period and a fine
not exceeding 2,000 pesos. (As amended by Rep. Act. No. 6968)

Treason or rebellion should not be actually committed.

In proposal to commit treason or rebellion, the crime of treason
or rebellion should not be actually committed by reason of the
proposal.
If the crime of treason or rebellion was actually committed after
and because of the proposal, then the proponent would be liable for
treason or rebellion as a principal by inducement (Art. 17, par. 2),
and in such case the proposal is not a felony.

Requisites of
1. That a person has decided to commit a felony; and
2. That he proposes its execution to some other person or
persons.

There is no criminal proposal when —

1. The person who proposes is not determined to commit the
felony.
Example: A desires that the present government be
overthrown. But A is afraid to do it himself with others. A then
suggests the overthrowing of the government to some desperate
people who will do it at the slightest provocation. In this case,
A is not liable for proposal to commit rebellion, because A has
not decided to commit it.

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 Art. 8 CONSPIRACY AND PROPOSAL
TO COMMIT FELONY

2. There is no decided, concrete and formal proposal.

In the above example, note that there was merely a
a decided, concrete and formal proposal.
3. It is not the execution of a felony that is proposed.
Example: A conceived the idea of overthrowing the
present government. A called several of his trusted followers
and instructed them to go around the country and secretly to
organize groups and to convince them of the necessity of having
a new government. Note that what A proposed in this case is
not the execution of the crime of rebellion, but the performance
of preparatory acts for the commission of rebellion. Therefore,
there is no criminal proposal.

Problem:
If the proponents of rebellion desist before any rebellious act is
actually performed by the would-be material executors, inform the
authorities and aid in the arrest of their fellow plotters, should the
proponents be exempt?
According to Albert, the proponents should be exempt from the
penalties provided for criminal proposals and conspiracies, for the
law would rather prevent than punish crimes and encouragement
should be given to those who hearken to the voice of conscience.
But once a proposal to commit rebellion is made by the propo-
nent to another person, the crime of proposal to commit rebellion
is consummated and the desistance of the proponent cannot legally
exempt him from criminal liability.

It is not necessary that the person to whom the proposal is

made agrees to commit treason or rebellion.
Note that what constitutes the felony of proposal to commit treason
or rebellion is the making of proposal. The law does not require that
the proposal be accepted by the person to whom the proposal is made.
If it is accepted, it may be conspiracy to commit treason or rebellion,
because there would be an agreement and a decision to commit it.

Proposal as an overt act of corruption of public officer.

One who offers money to a public officer to induce him not to
perform his duties, but the offer is rejected by the public officer, is

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 CLASSIFICATION OF FELONIES
Art. 9
ACCORDING TO THEIR GRAVITY

liable for attempted bribery. (U.S. vs. Gloria, 4 Phil. 341) Note that
while it is true that the act performed by the offender is in the nature
of a proposal, and is not punishable because it does not involve treason
or rebellion, nevertheless, the proposal in this case is an overt act of
the crime of corruption of public officer. (See Art. 212)

The crimes in which conspiracy and proposal are

punishable are against the security of the State or
economic security.
Treason is against the external security of the State. Coup d'etat,
rebellion and sedition are against internal security. Monopolies and
combinations in restraint of trade are against economic security.

Reason why conspiracy and proposal to commit a crime is

punishable in crimes against external and internal security
of the State.
In ordinary crimes, the State survives the victim, and the cul-
prit cannot find in the success of his work any impunity. Whereas,
in crimes against the external and internal security of the State, if
the culprit succeeds in his criminal enterprise, he would obtain the
power and therefore impunity for the crime committed. (Albert)

Art. 9. Grave felonies, less grave felonies, and light felonies.

— G ra v e f e l o n i e s ar e t h o s e t o w h i c h th e la w a t t a c h e s th e
cap i ta l p u n i s h m e n t o r p e n a l t i e s w h i c h i n an y o f thei r p e r i o d
s ar e affl icti ve, i n a c c o r d a n c e w i t h Arti cl e 2 5 o f thi s Code .
Les s grav e f e l o n i e s ar e th os e w h i c h th e la w p u n i s h e s wit
h p e n a l t i e s w h i c h i n t h e i r m a x i m u m p e r i o d ar e c o r r e c t i o n a l ,
i n a c c o r d a n c e w i t h th e a b o v e - m e n t i o n e d a rt i c l e .
Ligh t f e l o n i e s ar e t h o s e i n f r a c t i o n s o f la w for th e com-
m i s s i o n of w h i c h th e p e n a l t y of arresto menor or a fine not
e x c e e d i n g 200 p e s o s , o r b oth , i s p r o v i d e d .

Classification of felonies according to their gravity.

Art. 9 classifies felonies according to their gravity. The gravity
of the felonies is determined by the penalties attached to them by
law.
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Art. 9 CLASSIFICATION OF FELONIES
ACCORDING TO THEIR
GRAVITY

IMPORTANT WORDS AN D P H R A S E S .
"To which the law attaches the capital punishment."
Capital punishment is death penalty.
2. "Or penalties which in any of their periods are afflictive."
Although the word "any" is used in the phrase, when
the penalty prescribed for the offense is composed of two
or more distinct penalties, the higher or highest of the
penalties must be an afflictive penalty.

Example: A felony punishable by prision correccional to

prision mayor is a grave felony, because the higher of the two
penalties prescribed, which is prision mayor (Art. 71), is an
afflictive penalty.

If the penalty prescribed is composed of two or more

periods corresponding to different divisible penalties, the
higher or maximum period must be that of an afflictive
penalty.

Example: A felony punishable by prision correccional in

its maximum period to prision mayor in its minimum period is a
grave felony, because the higher period, which is the minimum
of prision mayor, is a period of an afflictive penalty.

If the penalty is composed of two periods of an afflictive

penalty or of two periods corresponding to different
afflictive penalties, the offense for which it is prescribed
is a grave felony.

Example: A felony punishable by the medium and maximum

periods of prision mayor or by prision mayor in its maximum
period to reclusion temporal in its minimum period is a grave
felony, because both prision mayor and reclusion temporal are
afflictive penalties.

The afflictive penalties in accordance with Art. 25 of

this Code are:
Reclusion perpetua,
Reclusion
temporal,
134
Perpetual or temporary absolute disqualification,

135
 CLASSIFICATION OF FELONIES
Art. 9
ACCORDING TO THEIR GRAVITY

Perpetual or temporary special disqualification,

Prision mayor.
which in their maximum period are correc-
tional."
Whe n the p en al ty prescribed for the offense i s
composed of two or more distinct penalties, the higher or
highest of the penalties must be a correctional penalty.
Example: A felony punishable by arresto menor to
is a less grave felony, because the higher of the two penalties
prescribed, which is destierro, is a correctional penalty. Arresto
menor is a light penalty.

If the penalty prescribed is composed of two or more

periods corresponding to different divisible penalties, the
higher or maximum period must be that of correctional
penalty.
Example: A felony punishable by arresto menor in its
maximum period to destierro in its minimum period is a less
grave felony, because the higher is a period of a correctional
penalty.

If the penalty is composed of two periods of a correctional

p enalty or of two periods corresponding to different
correctional penalties, like destierro and arresto mayor, the
offense for which it is prescribed is a less grave felony.
The following are correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
"The penalty of arresto menor or a fine not exceeding 200
pesos, or both, is provided."
When the Code provides a fine of exactly for
the commission of a felony, it is a light felony. If the amount
of the fine provided by the Code is more than P200.00,
then it is a less grave felony, because according to Art. 26,

135
 Art. 10 APPLICATION OF CODE TO CRIMES
PUNISHABLE BY SPECIAL LAWS

a not exceeding P6,000.00 is a correctional penalty. If

the amount of the fine provided by the Code is more than
it is a grave felony, because according to Art.
26, a fine exceeding is an afflictive penalty.
Although Art. 26 provides that a fine not less than
is a correctional penalty, Art. 9 which defines light
felonies should prevail, because the latter classifies felonies
according to their gravity, while the former classifies the
fine according to the amount thereof.
Gambling punished with arresto menor or a fine not
exceeding is a light felony. (People vs. Canson,
101 Phil. 537)
A felony punishable by a fine not exceeding P200.00
and censure (Art. 365, paragraph 4) is a light felony, because
public censure, like arresto menor, is a light penalty.

Art. 10. Offenses not subject to the provisions this Code. — Of-
f en se s w h i c h ar e o r i n th e f u t u r e ma y b e p u n i s h a b l e u n d e r
sp eci a l l aw s ar e no t su b j e c t t o th e p r o v i s i o n s o f thi s Code
. Thi s Cod e shal l b e s u p p l e m e n t a r y t o s u c h l a ws , u n l e s s th e
l atte r s h o u l d s p e c i a l l y p r o v i d e th e c o n t r a r y .

Are offenses punishable under special laws subject to the

provisions of the Revised Penal Code?
Article 10 is composed of two clauses. In the first, it is provided
that offenses under special laws are not subject to the provisions
of the Code. The second makes the Code supplementary to such
laws.

The two clauses of Art. reconciled.

The first clause should be understood to mean only that the Penal
Code is not intended to supersede special penal laws. The latter are
controlling with regard to offenses therein specially punished. Said
clause only restates the elemental rule of statutory construction that
special legal provisions prevail over general ones.

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 APPLICATION OF CODE TO CRIMES
Art. 10
PUNISHABLE BY SPECIAL LAWS

The second clause contains the soul of the article. The main
idea and purpose of the article is embodied in the provision that the
"Code shall be supplementary" to special laws, unless the latter should
specially provide the contrary. (Dissent of Justice Perfecto, People vs.
Gonzales, 82 Phil. 307)

IM PO RT AN T WO RD S AN D P H R A S E S .
"Special

A "special law" is defined in U.S. vs. Serapio, 23 Phil.

584, as a penal law which punishes acts not and
penalized by the Penal Code.

Special law is a statute enacted by the Legislative

branch, penal in character, which is not an amendment to
the Revised Penal Code. Special laws usually follow the
form of American penal The penal for exam-
ple, provides a penalty of from five to ten years or a fine
not exceeding P5,000.00, or both, in the discretion of the
court.

The provisions of the Revised Penal Code on penalties cannot

be applied to offenses punishable under special laws.
Art. 6 relative to attempted and frustrated stages of execution,
Arts. 18 and 19 regarding accomplices and accessories, and Arts. 50
to 57 which provide that the penalty for the principal in an attempted
felony is two degrees and in a frustrated felony one degree lower
than the penalty for the consummated felony, that the penalty for
the accomplice is one degree lower and for the accessory two degrees
lower than that for the consummated felony, Arts. 13 and 14 which
provide for mitigating and aggravating circumstances, respectively,
and Art. 64 which provides for the rules for the application of penalties
with three periods, cannot be applied to offenses punishable under
special laws. The reasons are that the special laws do not provide
for a scale of penalties, as that in Art. 71 of the Code, where a given
penalty could be lowered by one or two and that the penalty
provided by the special law does not contain three periods.
The term "imprisonment" and not "prision correccional" should
be used in reference to the penalty for the crime of illegal possession
of firearms and other crimes punished by special laws, because the

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Art. 10 APPLICATION OF CODE TO CRIMES
PUNISHABLE BY SPECIAL LAWS

term "prision correccional," "prision mayor," or "arresto mayor" is

peculiar to penalties for crimes punished by the Revised Penal Code.
(See People vs. Respecia, 107 Phil. 995)

Offenses under special laws, not subject to the provisions of

this Code relating to attempted and frustrated crimes.
By virtue of the provision of the first part of this article, it was
held that the attempted or the frustrated stage of the execution of
an offense penalized by a special law is not punishable, unless the
special law provides a penalty therefor. (U.S. vs. Lopez Basa, 8 Phil.
89)
The ruling in the case of U.S. vs. Basa, supra, is still good,
notwithstanding the case of Navarra vs. People, 96 Phil. 851 , where
it is stated that the prohibition against the interest in municipal
contracts includes all the steps taken to consummate the contract,
that is, frustrated and attempted stages are included.
In the Navarra case, the exchange of the property of the husband
of a woman councilor and that of the municipality was approved by
the municipal council. The provisions of the Administrative Code
charged to have been violated by the councilor do not require that the
contract be approved by the provincial governor. In the Basa case, the
written proposal of Councilor Basa, offering to furnish street lamps
to the municipality, at the price named therein, was not accepted
by the municipal council, it being a violation of the law, prohibiting
public officers from becoming interested in any transaction in which
it is their official duty to intervene.
In the Navarra case, the transaction in which the councilor
became interested having been approved by the municipal council,
the offense was consummated. In the Basa case, the proposal, not
having been accepted by the municipal council, the offense was only
in the attempted stage.

The special law has to fix penalties for attempted and frus-
trated crime.
The penalty for the consummated crime cannot be imposed when
the stage of the acts of execution is either attempted or frustrated,
because the penalty for the attempted and frustrated crime is two
degrees or one degree lower, respectively. The special law does not

138
 APPLICATION OF CODE TO CRIMES Art. 10
PUNISHABLE BY SPECIAL LAWS

provide for a penalty one or two degrees lower than that provided for
the consummated stage. The special law has to fix a penalty for the
attempt and a penalty for the frustration of the crime defined by it, in
order that the crime may be punished in case its commission reached
only the attempted or frustrated stage of execution.

When a special law covers the mere attempt to commit the

crime by it, the attempted stage is punishable by
the same penalty provided by that law.
When the accused wa s about to board a plane of the Pan
American World Airways, four pieces of gold bullion were found tied to
his body. He was charged with a violation of Republic Act No. 265.

Held: Section 4 of Circular No. issued in accordance with the

provisions of Republic Act No. 265, provides that "any person desiring
to export gold in any form must obtain a license from the Central
Bank x x x." This section explicitly applies to "any person desiring to
export gold" and hence, it contemplates the situation existing prior
to the consummation of the exportation. Indeed, its purpose would
be defeated if the penal sanction were deferred until after the article
in question had left the Philippines, for jurisdiction over it and over
the guilty party would be lost thereby. (People vs. Jolliffe, 105 Phil.
677)

Art. is not applicable to punish an accomplice under

the special law.
The offense involved is punished by Com. Act No. 466, Sec.
The penalty imposed is clearly intended only for the "person who is
found in possession" of the prohibited article. No punishment for a
mere accomplice is provided. Although by Article 10 of the Revised
Penal Code, its provisions may be applied to offenses punished by
special laws in a supplementary manner, the pertinent provisions
thereof on accomplices simply cannot be given effect in the case at
bar. To be able to do so, the rules on graduation of penalties must
be resorted to. Thus, Article 52 thereof prescribes for the accomplice
in a consummated offense a penalty one degree lower than that
prescribed for the principal therein. But, the penalty provided in
Section 174 of the National Internal Revenue Code here involved,
is a single penalty standing by itself without any provision therein
as to degrees of penalties imposable. No room for the application of

139
 Art. 10 APPLICATION OF CODE TO CRIMES
PUNISHABLE BY SPECIAL LAWS

the rule of graduation of penalties therefore exists. It would be a

legal impossibility to determine what penalty is to be imposed upon
a mere accomplice. The combined provisions of both the Revised
Penal Code and the National Internal Revenue Code do not provide
any such penalty or at least lay down the basis or the manner of
its determination. The rule is and has always been nullum crimen
nulla poena sine lege. Hence, even if appellant is conceded to have
performed acts which would make of him an accomplice, it would
nevertheless be impossible to impose any penalty upon him because
of the demonstrated inapplicability of the principles of the Revised
Penal Code on accomplices to the case at bar. (Dissenting opinion,
People vs. Padaong, 10 C.A. Rep. 979)

Plea of guilty is not mitigating in illegal possession of

arms, punished by special law.
The plea of guilty as mitigating circumstance under the Revised
Penal Code (Art. 13, par. 7) is not available to offenses punishable
under special laws. (People vs. Noble, 77 Phil. 1086)
Offenses which are punishable under the special laws are not
subject to the provisions of Art. 64 of the Revised Penal Code, and
it has been held that the provisions of the Revised Penal Code, rela-
tive to the application of the circumstances modifying the criminal
liability of the accused are not applicable to special laws. (People vs.
Respecia, 107 Phil. 995)
Art. 64 of the Revised Penal Code prescribing the rules for the
graduation of penalties containing three periods when mitigating
and/or aggravating circumstances attended the commission of the
crime, was held inapplicable to offenses penalized by special laws,
because the penalty prescribed by special law is usually indeterminate
and does not contain three periods. For this reason, the mitigating
circumstance of voluntary plea of guilty is not considered to mitigate
the liability of one accused of illegal possession of firearms. (People
vs. Ramos, 44 O.G. 3288; People vs. Gonzales, 82 Phil. 307)

This Code considered supplementary to special laws.

2. "Supplementary"
The word "supplementary" means supplying what is
lacking; additional.

140
 APPLICATION OF CODE TO CRIMES
Art. 10
PUNISHABLE BY SPECIAL LAWS

Some provisions of the Penal Code (especially with the addition

of the second sentence of Art. 10), are perfectly applicable to special
laws. In fact, the Supreme Court has extended some provisions of the
Penal Code to special penal laws, such as, the provisions of Article
22 with reference to the retroactive effect of penal laws if they favor
the accused (People vs. 44 Phil. 437); those of Article 17 with
reference to participation of principals in the commission of the crime
(U.S. vs. Ponte, 20 Phil. 379); those of Article 39 with reference to
subsidiary imprisonment in case of insolvency to pay the fine (People
vs. Abedes, 268 SCRA 619); and those of Article 45 with reference
to the confiscation of the instruments used in the commission of the
crime. (U.S. vs. 28 Phil. 305)

Indemnity and subsidiary imprisonment in the Revised Penal

Code applied to violation of Motor Vehicle Law.
People vs. Moreno
(60 Phil. 712)
Facts: The accused drove a car in a reckless manner, and in
going around a curve leading to a concrete bridge, he violently struck
the railing of the bridge and crushed the left side of the car. The
person who was seated on the left side of the car received injuries
from which he died the same day. The accused was convicted of
homicide thru reckless imprudence and violation of the Motor Vehicle
Law (Act No. 3992). That special law has no provision regarding
indemnity to heirs of the deceased and subsidiary imprisonment in
case of insolvency. In Articles 39 and 100 of the Revised Penal Code,
indemnity to heirs and subsidiary imprisonment are, respectively,
provided.
Held: Articles 39 and 100 of the Revised Penal Code are supple-
mentary to the Motor Vehicle Law.

Art. 39 of the Code applied to Rep. Act No. 145.

The appellant who was found guilty of a violation of Rep. Act No.
145, penalizing unlawful solicitation of, or contract for, fees relative
to claim for benefits under statutes of the U.S. being administered by
the U.S. Veterans Administration, was sentenced to suffer subsidiary
imprisonment (Art. 39) should he fail to pay to the offended party
the indemnity awarded to the latter. (People vs. Lardizabal, CA-G.R.
Nos. to 11543, Aug. 22, 1955)

141
Art. 10 APPLICATION OF CODE TO CRIMES
PUNISHABLE BY SPECIAL LAWS

Art. 39 the Code applied to Act No. 4003.

Appellant's contention that the trial court committed error in
ordering him to serve subsidiary imprisonment in case of insolvency
in the payment of fine for the reason that Act No. 4003 , which
prohibits fishing with the use of explosives, fails to provide for such
subsidiary imprisonment and that being a special law, it is not subject
to the provisions of the Revised Penal Code, is untenable. The second
paragraph of Article 10 of the said Code provides that "this Code shall
be supplementary to such laws, unless the latter should specially
provide the contrary." Articles 100 (civil liability) and 39 (subsidiary
penalty) are applicable to offenses under special laws (People vs.
Dizon 97 Phil. 1007). (People vs. Cubelo, 106 Phil. 496)

No accessory penalty, unless the special law provides there-

for.
In the case of People vs. Santos, 44 O.G. 1289, the Court of
Appeals refused to impose accessory penalty upon the accused found
guilty of a violation of Act 3992, because that law does not provide
for any.

Article paragraph 3, of the Revised Penal Code, applied

to minor over nine but less than fifteen years old who
violated a special law.

People vs. Navarro

(C.A., 51 O.G. 4062)

Facts: A girl, 13 years, months, and 3 days old, was prosecuted

for selling cocoa more than the selling price fixed by the
government. The prosecution failed to establish that she acted with
discernment.
Held: The state has the burden of proving that the minor acted
with discernment, otherwise, such minor shall be adjudged to be
criminally irresponsible solely by reason of her age showing lack
of intelligence. Article 12, paragraph 3, of the Revised Penal Code
applied.

In the above-mentioned case, the accused was prosecuted under

a special law. Intent is immaterial in crimes mala prohibita. But
even in crimes mala prohibita, the prohibited act must be voluntarily

142
 APPLICATION OF CODE TO CRIMES
Art. 10
PUNISHABLE BY SPECIAL LAWS

committed. The offender must act with intelligence. In said case, the
accused acted without intelligence.
3. "Unless the latter should specially provide the contrary."
The fact tha t C o m m o n w e a l t h Act No. 46 5 p u n i sh e s the
falsification of residence certificates in the cases mentioned therein
does not prevent the application of the general provisions of the
Revised Penal Code on other acts of falsification not covered by the
special law, since under Art. 10 of the Revised Penal Code it has
supplementary application to all special laws, unless the latter should
specially provide the contrary, and Commonwealth Act No. 465 makes
no provision that it exclusively applies to all falsifications of residence
certificates. (People vs. Po Giok To, 96 Phil. 913 , 919-920)

Special laws amending the Revised Penal Code are subject

to its provisions.
P.D. No. 533 is not a special law, entirely distinct from and
unrelated to the Revised Penal Code. From the nature of the penalty
imposed which is in terms of the classification and duration of
penalties as prescribed in the Revised Penal Code, which is not for
penalties as are ordinarily imposed in special laws, the intent seems
clear that P.D. No. 533 shall be deemed as an amendment of the
Revised Penal Code, with respect to the offense of theft of large cattle
(Art. 310), or otherwise to be subject to applicable provisions thereof
such as Article 104 of the Revised Penal Code on civil liability of the
offender, a provision which is not found in the decree, but which could
not have been intended to be discarded or eliminated by the decree.
Article 64 of the same Code should, likewise, be applicable, under
which the presence of two mitigating circumstances, that of plea of
guilty and extreme poverty, without any aggravating circumstances
to offset them, entitles the accused to a lowering by one degree of the
penalty for the offense. (People vs. Macatanda, No. Nov. 6,
1981, 109 SCRA 35, 40-41)

143
 Chapter Two
JUSTIFYING CIRCUMSTANCES
AND CIRCUMSTANCES WHICH EXEMPT FROM
CRIMINAL LIABILITY

The circumstances affecting criminal liability are:

I. circumstances (Art.

II. Exempting circumstances (Art. 12), and other absolutory causes

(Arts. 20; 124, last 280, last 332; 344; etc.)
III. Mitigating circumstances (Art. 13)
IV. Aggravating circumstances (Art. 14)
V. Alternative circumstances (Art. 15)

Imputability, defined.
Imputability is the quality by which an act may be ascribed to a
person as its author or owner. It implies that the act committed has
been freely and consciously done and may, therefore, be put down to
the doer as his very own. (Albert)

Responsibility, defined.
Responsibility is the obligation of suffering the consequences of
crime. It is the obligation of taking the penal and civil consequences
of the crime. (Albert)

Imputability, distinguished from responsibility.

While imputability implies that may be imputed to
a person, responsibility implies that person must take the
consequence of such a deed. (Albert)

Meaning of "guilt."
Guilt is an element of responsibility, for a man cannot be made to
answer for the consequences of a crime unless he is guilty. (Albert)

144
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense

I. . Justifyin g Circumstances .
1. Definition

Justifying circumstances are those where the act of

a person is said to be in accordance with law, so that such
person is deemed not to have transgressed the law and is
free from both criminal and civil liability.
There is no civil liability, except in par. 4 of Art.
where the civil liability is borne by the persons benefited
by the act.

2. Basis justifying circumstances.

The law recognizes the non-existence of a crime by

expressly stating in the opening sentence of Article that
the persons therein mentioned not incur any criminal
liability."

Art. 11 . Justifying — Th e f o l l o w i n g do no t
i n c u r an y c r i m i n a l l i ab i l i ty :
A n y o n e wh o act s i n d e f e n s e o f hi s p e r s o n o r ri gh ts ,
p r o v i d e d th a t th e f o l l o w i n g c i r c u m s t a n c e s c o n c u r :
First. U n l a w f u l a g g r e s s i o n ;
Second. R e a s o n a b l e n e c e s s i t y o f th e m e a n s e m p l o y e d t o
p r e v e n t o r rep e l it;
Third. Lac k of su ffi ci en t p r o v o c a t i o n on th e par t of th e
p e r s o n d e f e n d i n g hi msel f.
2. . An y o n e w h o acts in defens e of th e perso n or
rights of hi s spouse, ascendant s , desc e nda nt s , or legitimate,
na t u ra l , o r a d o p t e d b r o t h e r s o r s i s t e rs , o r o f h i s r e l a t i v e s b y
affinity i n t h e s a m e d e g r e e s , a n d t h o s e b y c o n s a n g u i n i t y w i t h i n
t h e fo urth civil d e g r e e , p r o v i d e d t h a t t h e f i r s t a n d s e c o n d
requisites prescribed nex t pr e ce di n g circumstanc e are present,
a n d t h e furthe r r e q u i s i t e , i n c a s e t h e p r o v o c a t i o n w a s g i v e n
b y t h e p e r s o n at-
tacked, that th e on e m a k i n g d efen se ha d n o part therein.
3. A n y o n e wh o act s i n d e f e n s e o f th e p e r s o n o r
ri gh ts of a st ra n g er , p r o v i d e d tha t th e first an d s e c o n d
145
 requisite s

146
 Art. 11 JUSTIFYING CIRCUMSTANCES

m e n t i o n e d in th e first c i r c u m s t a n c e of thi s article are p r e s e n t

an d that th e p e r s o n d e f e n d i n g b e no t i n d u c e d b y r e v e n g e ,
r e s e n t m e n t o r o th e r evil m o t i v e .
4 . An y p e r s o n w h o , i n orde r t o a vo i d a n evil o r injury,
doe s a n ac t w h i c h c a u s e s d a m a g e t o an o t h e r , p r o v i d e d tha t
th e f o l l o w i n g r e q u i s i t e s ar e p r e s e n t :
First. Tha t th e evil s o u g h t to be a v o i d e d ac tu al l y exi sts ;
Second. Tha t th e in ju r y f ea re d b e g r e a t e r th a n tha t don
e to a vo i d it.
Third. Tha t th er e b e n o o t h e r p r a c t i c a l an d les s h a rm fu l
m e a n s o f p r e v e n t i n g it.
5 . An y p e r s o n wh o act s i n th e fu l fi l l men t o f a du t y o
r in th e l awfu l e x e r c i s e of a ri gh t or office.
6 . An y p e r s o n wh o act s i n o b e d i e n c e t o a n ord e r i s s u e
d by a s u p e r i o r for som e l a wf u l p u r p o s e .

There is no crime committed, the act being justified.

In stating that the persons mentioned therein "do not incur any
criminal liability," Article recognizes the acts of such persons as
justified. Such persons are not criminals, as there is no crime com-
mitted.

Burden of proof.
The circumstances mentioned in Art. are matters of defense
and it is incumbent upon the accused, in order to avoid criminal li-
ability, to prove the justifying circumstance claimed by him to the
satisfaction of the court.

Self-defense.
Well-entrenched is the rule that where the accused invokes self-
defense, it is incumbent upon him to prove by clear and convincing
evidence that he indeed acted in defense of himself. He must rely
on the strength of his own evidence and not on the weakness of the
prosecution. For, even if the prosecution evidence is weak, it could
not be disbelieved after the accused himself had admitted the killing.

147
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

(People vs. Sazon, G.R. No. 89684, Sept. SCRA

People vs. Rey, G.R. No. 80089 , April 13, 1989, 172 SCRA 149, 156;
People vs. 75 Phil. 772, 777)
Self-defense, mus t be proved with certainty by sufficient,
satisfactory and convincing evidence that excludes any vestige of
criminal aggression on the part of the person invoking it and it cannot
be justifiably entertained where it is not only uncorroborated by any
separate competent evidence but, in itself, is extremely doubtful.
(People vs. Mercado, No. L-33492, March 30, 1988, 159 SCRA 453 ,
458; People vs. Jr., No. March 28, 1980, 96
SCRA 573 , 584)

In self-defense, the burden of proof rests upon the accused. His

duty is to establish self-defense by clear and convincing evidence,
otherwise, conviction would follow from his admission that he killed
the victim. He must rely on the strength of his own evidence and not
on the weakness of that for the prosecution. (People vs. Clemente,
G.R. No. L-23463, September 28, 1967, 21 SCRA 261 ; People vs.
Talaboc, Jr., G.R. No. L-25004, October SCRA 87; People
vs. G.R. No. January SCRA 245; People
vs. Montejo, No. L-68857, Nov. 21 , 1988, 167 SCRA 506, 512; People
vs. Corecor, No. March 21 , 1988, 159 SCRA 84, 87)

The plea of self-defense cannot be justifiably entertained where it

is not only uncorroborated by any separate competent evidence but in
itself is extremely doubtful. (People vs. Flores, L-24526, February 29,
SCRA 342; Ebajan vs. Court of Appeals, G.R. Nos. 77930-31,
Feb. 9, 1989, 170 SCRA 178, 189; People vs. Orongan, No.
Dec. SCRA 586, 597-598; People vs. Mendoza, [CA] 52
O.G. 6233)

Par. 1. - SEL F- DEFENSE.

Anyone who acts in defense his person or rights, provided
that the following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the
person defending himself.
148
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

Rights included in self-defense.

Self-defense includes not only the defense of the person or body
of the one assaulted but also that of his rights, that is, those rights
the enjoyment of which is protected by law.
from the right to life on which rests the legitimate defense
of our person, we have the right to property acquired by us, and the
right to honor which is not the least prized of man's patrimony."
Viada, 172, 173, 5th edition)

Reason why penal law makes self-defense lawful.

Because it would be quite impossible for the State in all cases to
prevent aggression upon its citizens (and even foreigners, of course)
and offer protection to the person unjustly attacked. On the other
hand, it cannot be conceived that a person should succumb to an
unlawful aggression without offering any resistance. (Guevara)
The law on self-defense embodied in any penal system in the
civilized world finds justification in man's natural instinct to protect,
repel, and save his person or rights from impending danger or peril; it
is based on that impulse of self-preservation born to man and part of
his nature as a human being. To the Classicists in penal law, lawful
defense is grounded on the impossibility on the part of the State to
avoid a present unjust aggression and protect a person unlawfully
attacked, and therefore it is inconceivable for the State to require that
the innocent succumb to an unlawful aggression without resistance,
while to the Positivists, lawful defense is an exercise of a right, an act
of social justice done to repel the attack of an aggression.
vs. Court of Appeals, Nos. Aug. 6, 1979, 92 SCRA 567,
571-572; People vs. Boholst-Caballero, No. L-23249, Nov. 25, 1974,
61 SCRA 180, 185)

Requisites of self-defense.
There are three requisites to prove the claim of self-defense as
stated in paragraph 1 of Article of the Revised Penal Code, namely:
unlawful aggression; (2) reasonable necessity of the means em-
ployed to prevent or repel it; and (3) lack of sufficient provocation on
the part of the person defending himself. (People vs. Uribe, G.R. Nos.
76493-94, Feb. 182 SCRA 624, 630-631; People vs. Delgado,
G.R. No. 79672, Feb. 15, 1990, 182 SCRA 343, 349-350; People vs.
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

Batas, G.R. Nos. 84277-78, Aug. 2, 1989, 176 SCRA 46, People
vs. G.R. No. 82113 , July SCRA 116; People
vs. Bayocot, G.R. No. 55285 , June 28, 1989, 174 SCRA 285, 291)

First requisite of self-defense.

The first requisite of self-defense is that there be unlawful
aggressi on on the part of the person injured or killed by the
accused.

Unlawful aggression is an indispensable requisite.

It is a statutory and doctrinal requirement that for the justifying
circumstance of self-defense, the presence of unlawful aggression is
a condition sine qua non. There can be no self-defense, complete or
incomplete, unless the victim has committed an unlawful aggression
against the person defending himself. (People vs. Sazon, G.R. No.
89684 , Sept. 18, 189 SCRA 700, 704; People vs. Bayocot, G.R.
No. 55285, June citing Ortega vs.
ganbayan, G.R. No. 57664 , Feb. 8, 1989, 170 SCRA 38; Andres vs.
CA, No. L-48957, June SCRA 268; People vs.
No. 72936, June 18, 1987, 151 SCRA 170; People vs. 58
Phil. 586)

For the right of defense to exist, it is necessary that we be

assaulted or that we be attacked, or at least that we be threatened
with an attack in an immediate and i mmin en t manner, as, for
example, brandishing a knife with which to stab us or pointing a gun
to discharge against us. (1 Viada, 5 edicion, 173, p. 3275)
If there is no unlawful aggression, there is nothing to prevent
or repel. The second requisite of defense will have no basis.
In the case of People vs. 61 Phil. 786, this rule was
explained, as follows:
act of mortally wounding the victim has not been
preceded by aggression on the part of the latter. There is
no occasion to speak of necessity of the means
or of on the part of one
invoking legitimate self-defense, because both circumstances
presuppose unlawful aggression which was not present in the
instant case." (p. 788)
149
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

Aggression must be unlawful.

The requisite of defense says that the aggression must be
unlawful.
There are two kinds of aggression: (1) lawful, and (2) unlaw-
ful.
The fulfillment of a duty or the exercise of a right in a more or
less violent manner is an aggression, but it is lawful.
Thus, the act of a chief of police who used violence by throwing
stones at the accused when the latter was running away from him to
elude arrest for a crime committed in his presence, is not unlawful
aggression, it appearing that the purpose of the peace officer was to
capture the accused and place him under arrest. (People vs.
60 Phil. 796, 805)

So also, is the act of a policeman who, after firing five cautionary

shots into the air, aimed directly at the escaping detainee when he
had already reasons to fear that the latter would be able to elude
him and his pursuing companions. (Valcorza vs. People, No.
Oct. 31 , 1969, 30 SCRA 143, 149; See also vs. Court
of
Appeals, G.R. No. 51206, Aug. 25, 1989, 176 SCRA 699, 708)

Article 249 of the new Civil Code provides that "(t)he owner or
lawful possessor of a thing has the right to exclude any person from
the enjoyment and disposal thereof. For this purpose, he may use
such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his
property."
Thus, under the new Civil Code a person may use force or
violence to protect his property; and if in protecting his property such
person uses force to prevent its being taken by another, the owner
of the property is not an unlawful aggressor, because he is merely
exercising a right.

Paramour surprised in the act of adultery cannot invoke

self- defense if he killed the offended husband who was
assaulting him.
In a case, the Supreme Court, in denying the paramour's plea

150
of self-defense, said: "(E)ven though it were true and even if the

151
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

deceased did succeed in entering the room in which the accused

(the paramour and the wife of the deceased) were lying, and did
immediately thereupon assault (the paramour), giving him several
blows with the bolo which (the deceased) carried, that assault was
natural and lawful, for the reason that it was made by a deceived
and offended husband in order to defend his honor and rights by
punishing the offender of his honor, and if he had killed his wife
and (the paramour), he would have exercised a lawful right and
such acts would have fallen within the sanction of Article 423 (now
Art. 247) of the Penal Code The (paramour) well knew that by
maintaining unlawful relations with (the deceased's wife), he was
performing an unlawful and criminal act and exposed himself to the
vengeance of the offended husband, and that, by their meeting each
other in the said house, he was running the danger of the latter's
surprising them there, as in fact it did occur." (U.S. vs. Merced, 39
Phil. 198, 202-203 )

Meaning of unlawful aggression.

Un l awfu l ag gr es si on is eq u i v al e n t to assaul t or at least
threatened assault of an immediate and imminent kind. (People vs.
Alconga, 78 Phil. 366) There is unlawful aggression when the peril to
one's life, limb or right is either actual or imminent. There must be
actual physical force or actual use of weapon. (People vs. Crisostomo,
No. Oct. 23 , 1981, 108 SCRA 288, 298)
There must be an actual physical assault upon a person, or at
least a threat to inflict real injury.
In case of threat, the same must be offensive and positively
strong, showing the wrongful intent to cause an injury. (U.S. vs.
Guysayco, 13 Phil. 292, 295)
Unlawful aggression p resupp oses an actual, sudden, and
unexpected attack, or imminent danger thereof, and not merely a
threatening or intimidating attitude. (People vs. Pasco, Jr., No. L-
45715, June 24, 1985, 137 SCRA 137; People vs. Bayocot, G.R. No.
55285, June 28, 1989, 174 SCRA 285, 292; People vs. Rey, G.R. No.
80089, April 13, 1989, 172 SCRA 149, 156)
Unlawful aggression refers to an attack that has actually broken
out or materialized or at the very least is clearly imminent; it can-
not consist in oral threats or a merely threatening stance or posture.

152
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

(People vs. Lachica, 132 SCRA 230 People vs. Tac-an, G.R.
Nos. 76338-39, Feb. 26, 1990, 182 SCRA 601 , 613) There must be a
real danger to life or personal safety. (People vs. Cagalingan, G.R.
No. 79168, Aug. 3, 1990, 188 SCRA 313, 318)
There is unlawful aggression when the peril to one's life, limb
(People vs. Sumicad, 56 Phil. 643, 647), or right is either actual or
imminent.

When there is no peril to one's life, limb or right, there is no unlawful

aggression.
Thus, the act of the deceased in preventing the accused from
inflicting a retaliatory blow on the person who had boxed the
accused is not unlawful aggression. (People vs. Flores, C.A., 47
O.G. 2969)
Where the d eceased, after kiddin g the accused, another
Constabulary soldier acting as sentry and singing, told the latter
that he had no voice for singing and, after words were exchanged
and while still in a spirit of fun, the deceased seized the accused by
the throat, whereupon the latter killed the deceased with his rifle,
it was held that the fact that the deceased seized the accused by the
throat and exerted pressure thereon in one of his frolics which he
had persistently kept up with notorious imprudence, and in spite
of the opposition of the accused, cannot be considered as an illegal
aggression in the case of two companions in arms quartered in the
same barracks. (U.S. vs. Padilla, 5 Phil. 396)
Where the deceased merely held the hands of the son of the
accused to request him (the son) to release the knife in order that
nothing untoward might happen, but he refused to do so, and in order
to avoid bloodshed, the deceased tried to wrest the knife from him
and in so doing pressed him against a coconut tree, without the least
intention of harming him, the father was not justified in killing the
deceased, because there was no unlawful aggression on the part of
the latter. (People vs. C.A., 44 O.G. 2774)

Peril to one's life.

Actual — that the danger must be present, that is, actually
in existence.

153
 JUSTIFYING CIRCUMSTANCES
Art. 11
Self-Defense
Par. 1

Example:

U.S. vs. Jose Laurel

(22 Phil. 252)
Facts: On the night of December 26, 1909, while the girl Con-
cepcion Lat was walking along the street, on her way from the house
of Exequiel Castillo, situated in the pueblo of Tanauan, Province of
Batangas, accompanied by several young people, she was approached
by Jose Laurel who suddenly kissed her and immediately thereafter
ran off in the direction of his house, pursued by the girl's companions,
among whom was the master of the house above-mentioned, Exequiel
Castillo, but they did not overtake him.
Early in the evening of the 28th of December, Jose Laurel went
to the parochial building, in company with several young people, for
the purpose of attending an entertainment which was to be held there.
While sitting in the front row of chairs, and while the director of the
college was delivering a discourse, Jose Laurel was approached by
Domingo Panganiban who told him that Exequiel Castillo wished to
speak with him, to which Laurel replied that he should wait a while
and thereupon Panganiban went away. A short time afterwards, he
was also approached by Alfredo Yatco who gave him a similar mes-
sage, and soon afterwards Felipe came up and told him that
Exequiel Castillo was waiting for him on the of the house.
This being the third summons addressed to him, he arose and went
down to ascertain what the said Exequiel wanted. When they met,
Exequiel asked Laurel why he kissed his (Exequiel's) sweetheart, and
on Laurel's replying that he had done so because she was very fickle
and prodigal of her use of the word on all occasions, Exequiel said
to him that he ought not to act that way and immediately struck him a
blow on the head with a cane or club, which assault made Laurel dizzy
and caused him to fall to the ground in a sitting posture and that, as
Laurel feared that his aggressor would continue to assault him, he
took hold of the pocketknife which he was carrying in his pocket and
therewith stabbed Exequiel. Among the wounds inflicted on Exequiel,
the wound in the left side of his breast was the most serious on account
of its having fully penetrated the lungs and caused him to spit blood.
He would have died, had it not been for the timely medical aid rendered
him.

Held: The defensive act executed by Jose Laurel was attended by

the three requisites of illegal aggression on the part of Exequiel Castillo,
there being lack of sufficient provocation on the part of Laurel, who
did not provoke the occurrence complained of, nor did he direct that
Exequiel Castillo be invited to come down from the parochial

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and arrange the interview in which Castillo alone was interested, and,
finally, because Laurel, in defending himself with a against
the assault made upon him with a cane, which may also be a deadly
weapon, employed reasonable means to prevent or repel the same.

2. Imminent — that the danger is on the point of happening.

It is not required that the attack already begins, for it may
be too late.
Example:

People vs. Cabungcal

(51 Phil. 803)

Facts: On March the accused invited several persons to

a picnic in a fishery on his property in the barrio of Misua, municipality
of Infanta, Province of Tayabas. They spent the day at said fishery
and in the afternoon returned in two boats, one steered by the accused
and the other by an old woman named Nine
persons were in the boat steered by the accused, the great majority
of whom were women, and among them the accused's wife and son
and a nursing child, son of a married couple, who had also gone in
his boat. The deceased Juan was another passenger in
his boat. Upon reaching a place of great depth, the deceased rocked
the boat which started it to take water, and the accused, fearing the
boat might capsize asked the deceased not to do it. As the deceased
paid no attention to this warning and continued rocking the boat, the
accused struck him on the forehead with an oar. The deceased fell
into the water and was submerged, but a little while after appeared
on the surface having grasped the side of the boat, saying that he
was going to capsize it and started to move it with this end in view,
seeing which the women began to cry, whereupon the accused struck
him on the neck with the same oar, which submerged the deceased
again. The deceased died as a consequence.

Held: Due to the condition of the river at the point where the
deceased started to rock the boat, if it had capsized, the passengers
would have run the risk of losing their lives, the majority of whom
were women, especially the nursing child. The conduct of the deceased
in rocking the boat until the point of it having taken water and his
insistence on this action in spite of the accused's warning, gave rise
to the belief on the part of the accused that it would capsize if he did
not separate the deceased from the boat in such a manner as to give
him no time to accomplish his purpose. It was necessary to disable
him momentarily. For this purpose, the blow given him by the accused
on the forehead with an oar was the least that could reasonably have

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been done. And this consideration militates with greater weight with
respect to the second blow given in his neck with the same oar, because
then the danger was greater than the boat might upset, especially as
the deceased had expressed his intention to upset it.

Although the case involves defense of relatives and at the same

time defense of strangers, it is cited here because unlawful aggression
is also a requisite in defense of relatives and in defense of strangers
and has the same meaning.

Peril to one's limb.

When a person is attacked, he is in imminent danger of death
or harm.
The blow with a deadly weapon may be aimed at the vital parts
of his body, in which case there is danger to his life; or with a less
deadly weapon or any other weapon that can cause minor physical
injuries only, aimed at other parts of the body, in which case, there
is danger only to his limb.

The peril to one's limb may also be actual or only imminent.

Peril to one's limb includes peril to the safety of one's person
from physical injuries.

An attack with fist blows may one's safety from physical

injuries. Such an attack is unlawful aggression. (People vs. Montalbo,
56 Phil. 443)

There must be actual force or actual use of weapon.

The person defending himself must have been attacked with
actual physical force or with actual use of weapon.
Thus, insulting words addressed to the accused, no matter
how objectionable they may have been, without physical assault,
could not constitute unlawful aggression. (U.S. vs. Carrero, 9 Phil.
544)
A light push on the head with the hand does not constitute
unlawful aggression. (People vs. 61 Phil. 786) A mere
push or a shove, not followed by other acts, does not constitute
unlawful aggression. (People vs. Sabio, G.R. No. L-23734, April
27, 1967)
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But a slap on the face is an unlawful aggression. Two persons

met in the street. One slapped the face of the other and the latter
repelled it by clubbing him and inflicting upon him less serious
physical injury. Held: The act of slapping another constituted the
use of force qualifying an unlawful aggression. (Decision of the
Supreme Court of Spain of January 20, 1904; People vs. Roxas, 58
Phil. 733)

Reason why slap on the face constitutes unlawful aggression.

Since the face represents a person and his dignity, slapping it
is a serious personal attack. It is a physical assault coupled with a
willful disregard, nay, a defiance, of an individual's personality. It
may, therefore, be frequently regarded as placing in real danger a
person's dignity, rights and safety. (People vs. Sabio, G.R. No. L-23734,
April 27, 1967)

Mere belief of an impending attack is not sufficient.

Mere belief of an impending attack is not sufficient. Neither is
an intimidating or threatening attitude. Even a mere push or shove
not followed by other acts placing in real peril the life or personal
safety of the accused is not unlawful aggression. (People vs. Bautista,
254 SCRA 621)

"Foot-kick greeting" is not unlawful aggression.

Teodoro Sabio was squatting with a friend, Irving Jurilla, in a
plaza. Romeo Bacobo and two others — Ruben and Leonardo
Garcia — approached them. All of them were close and old friends.
Romeo Bacobo then asked Sabio where he spent the holy week. At
the same time, he gave Sabio a "foot-kick greeting," touching Sabio's
foot with his own left foot. Sabio thereupon stood up and dealt Romeo
Bacobo a fist blow, inflicting upon him a lacerated wound, 3/4 inch
long, at the upper lid of the left eye. It took from to 12 days to
heal and prevented Romeo Bacobo from working during said period
as employee of Victorias Milling Co., Inc.
Held: A playful kick at the foot by way of greeting between
friends may be a practical joke, and may even hurt; but it is not a
serious or real attack on a person's safety. It may be a mere slight
provocation. (People vs. Sabio, 19 SCRA 901)

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No unlawful aggression, because there was no imminent and

real danger to the life or limb of the accused.
If, indeed, Rillamas did take hold of the barrel of appellant's rifle
or even tried to grab it, we do not believe it was justified for appellant
remove the safety lock and fire" his weapon. In their relative
positions, appellant had more freedom of action than the deceased
who was sandwiched among the three other passengers within the
small area of the calesa in which they were. In other words, between
the two of them, appellant had the better chance to win in the struggle
for the rifle. (People vs. Riduca, No. L-26729, Jan. 55 SCRA
190, 199)
True, the deceased acted rather belligerently, arrogantly, and
menacingly at the accused-appellant, but such behavior did not give
rise to a situation that actually posed a real threat to the life or safety
of accused-appellant. The peril to the latter's life was not imminent
and actual. To constitute unlawful aggression, it is necessary that an
attack or material aggression, an offensive act positively determining
the intent of the aggressor to cause an injury shall have been made.
(People vs. Macaso, No. June 30, 1975, 64 SCRA 659, 665-
666)

A strong retaliation for an injury or threat may amount to an

unlawful aggression.
When a person who was insulted, slightly injured or threatened,
made a strong retaliation by attacking the one who gave the insult,
caused the slight injury or made the threat, the former became the
offender, and the insult, injury or threat should be considered only as
a provocation mitigating his liability. (U.S. vs. 9 Phil. 544)
In this case, there is no self-defense.

Retaliation is not self-defense.

Retaliation is different from an act of self-defense. In retaliation,
the aggression that was begun by the injured party already ceased to
exist when the accused attacked him. In self-defense, the aggression
was still existing when the aggressor was injured or disabled by the
person making a defense.
Thus, when a person had inflicted slight physical injuries on
another, without intention to inflict other injuries, and the latter
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attacked the former, the one making the attack was an unlawful
aggressor. The attack made was a retaliation. But where a person is
about to strike another with fist blows and the latter, to prevent or
repel the blows, stabs the former with a knife, the act of striking with
fist blows is an unlawful aggression which may justify the use of the
knife. If the knife is a reasonable means, there is self-defense.

The attack made by the deceased and the killing of the

deceased by defendant should succeed each other
without appreciable interval of time.
In order to justify homicide on the ground of self-defense, it
is essential that the killing of the deceased by the defendant be
simultaneous with the attack by the deceased, or at least both
acts succeeded each other without appreciable interval of time. (U.S.
vs. Ferrer, 1 Phil. 56)

When the killing of the deceased by the accused was after the attack
made by the deceased, the accused must have no time nor occasion for
deliberation and cool thinking.
The deceased drew his revolver and levelled it at the accused
who, sensing the danger to his life, sidestepped and caught the hand
of the deceased with his left, thus causing the gun to drop to the floor.
Immediately, the accused drew his knife, opened it and stabbed the
deceased in the abdomen.
The fact that when the accused held the right hand of the
deceased, which carried the gun, the weapon fell to the floor could
not be taken to mean that the unlawful aggression on the part of the
deceased had ceased. The incident took place at nighttime in the house
of a relative of the deceased; among those present were a brother
and a cousin of the deceased, said cousin having a criminal record;
and the deceased himself had been indicted for illegal possession of
firearm and for discharge of firearm. Under such circumstances, the
accused could not be expected to have acted with all the coolness of
a person under normal condition. Uppermost in his mind at the time
must have been the fact that his life was in danger and that to save
himself he had to do something to stop the aggression. He had no
time nor occasion for deliberation and cool thinking because it was
imperative for him to act on the spot. (People vs. Arellano, C.A., 54
O.G. 7252)

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The unlawful aggression must come from the person who

was attacked by the accused.
Although the accused was unlawfully attacked, nevertheless, the
aggressor was not the deceased but another person. Consequently, this
unlawful aggression cannot be considered in this case as an element of
self-defense, because, in order to constitute an element of self-defense, the
unlawful aggression must come, directly or indirectly, from the person
who was subsequently attacked by the accused. It has been so held by
the Supreme Court of Spain in its decision of May nor can such
element of unlawful aggression be considered present when the author
thereof is unknown, as was held in the decision of February of
said Supreme Court. (People vs. Gutierrez, 53 Phil. 609, 611)

The alleged act of the victim in placing his hand in his pocket,
as if he was going to draw out something, cannot be characterized
as unlawful aggression. On the other hand, the accused was the
aggressor. His act of arming himself with a bolo and following
and overtaking the group of the victim shows that he had formed
the resolution of liquidating the victim. There being no unlawful
aggression, there could be no self-defense. (People vs. Calantoc, No.
L-27892, Jan. 31 , 1974, 55 SCRA 458, 463-464)

A public officer exceeding his authority may become an

unlawful aggressor.
Thus, a provincial sheriff who, in carrying out a writ of execution,
exceeded his authority by taking against the will of the judgment
debtor personal property with sen ti men tal value to the latter,
although other personal property sufficient to satisfy the claim of the
plaintiff was made available to said sheriff, was an unlawful aggressor
and the debtor had a right to repel the unlawful aggression. (People
vs. Hernandez, 59 Phil. 343)
The lawful possessor of a fishing net was justified in using force
to repel seizure by a peace officer who was making it without order
from the court. (People vs. [CA] 36 O.G. 54)

Nature, character, location, and extent of wound of the

accused allegedly inflicted by the injured party may belie
claim of self- defense.
1. The accused, claiming self-defense, exhibited a small

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scar 1/2 inches long) caused by an instrument on his

head. Held: The exhibition of a small wound shortly
after the occurrence does not meet the requirement for
— paraphrasing the Supreme Court — "if in order to be
exempt from military service there are those who mutilate
themselves or cause others to mutilate them, who would
not wound himself slightly in order to escape" the penalty
of reclusion temporal prescribed for the crime of homicide?
(People vs. 52 Phil. 94, 96)
2. The location, number and seriousness of the stab wounds
inflicted on the victims belie the claim of self-defense. One
of the victims alone sustained twenty-one (21) wounds.
(People vs. Batas, G.R. Nos. 84277-78, Aug. 2, 1989, 176
SCRA 46, 53, 54)
3. The nature, character, location and extent of the wounds
suffered by the deceased belie any supposition that it
was the deceased who was the unlawful aggressor. "The
nature and number of wounds inflicted by an assailant
[are] constantly and unremittingly considered important
indicia which disprove a plea of self-defense." (People vs.
G.R. No. Nov. SCRA 35, 43)
The deceased suffered three stab wounds, two of which
were fatal, and one incised wound. (People vs. Marciales,
No. Oct. 18, 1988, 166 SCRA 436, 443)
Appellant's theory of self-defense is negatived by the nature
and location of the victim's wounds which, having a right-
to-left direction, could not have possibly been inflicted by a
right-handed person in front of the victim with a two-feet
long bolo. (People vs. Labis, No. L-22087, Nov. 15, 1967,
21 SCRA 875, 882)
5. In view of the number of wounds of the deceased, nineteen
in number, the plea of self-defense cannot be seriously
So it has been constantly and uninterruptedly
held by the Supreme Court from U.S. vs. Gonzales (8 Phil.
443 to People vs. Constantino (L-23558, Aug. 10,
1967, 20 SCRA 940), a span of sixty (60) years. (People vs.
Panganiban, No. L-22476, Feb. 27, 1968, 22 SCRA 817,
823)

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6. The accused was the only eyewitness to the crime. He

admitted that he killed the deceased, but advanced the
claim that he acted in self-defense. Held: The actual,
undispu ted, physical facts flatly contradict the whole
theory of self-defense. The nature, character, location
and extent of the wound, as testified to by the doctor who
had examined the wound, clearly show that the deceased
was struck either from behind or while his body was in a
reclining position, from which it follows that the accused
did not act in self-defense. (People vs. Tolentino, 54 Phil.
77, 80)

Improbability of the deceased being the aggressor belies

the claim of self-defense.
It was unlikely that a sexagenarian would have gone to the
extent of assaulting the 24-year-old accused who was armed with
a gun and a bolo, just because the latter refused to give him a pig.
(People vs. Diaz, No. L-24002, Jan. 21 , 1974, 55 SCRA 178, 184)
It is hard to believe that the deceased, an old man of 55 years
sick with ulcer, would still press his attack and continue hacking the
accused after having been seriously injured and had lost his right
hand. (People vs. No. Jan. 23, 1974, 55 SCRA 245,
253-254)

The fact that the accused declined to give any statement

when he surrendered to a policeman is inconsistent with
the plea of self-defense.
When the accused surrendered to the policemen, he declined to
give any statement, which is the natural course of things he would
have done if he had acted merely to defend himself. A protestation
of innocence or justification is the logical and spontaneous reaction
of a man who finds himself in such an inculpatory predicament as
that in which the policemen came upon him still clutching the death
weapon and his victim dying before him. (People vs. Manansala, No.
Feb. 17, 1970, 31 SCRA 401 , 404)
The accused did not act in self-defense because, if he had done
so, that circumstance would have been included in his confession. He
never declared in his confession that he acted in self-defense. Had

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he acted in self-defense, he should have reported the incident to the

police of the three towns, the poblacion of which he passed when he
fled from the scene of the incident. (People vs. De la Cruz, No. L-45485,
Sept. 19, 1978, 85 SCRA 285, 291; See also People vs. Delgado, G.R.
No. 79672, Feb. 15, 1990, 182 SCRA 343, 350)

Physical fact may determine whether or not the accused

acted in self-defense.
In People vs. Dorico (No. Nov. 29, 1973, 54 SCRA
172, 184), where the accused claimed self-defense by alleging that
he stabbed the victim twice when the latter lunged at the accused
to grab the latter's bolo, it was observed that if this were true, the
victim would have been hit in front. The evidence showed, however,
that the wounds were inflicted from behind.
The physical fact belies the claim of self-defense. The revolver
of the deceased was still tucked inside the waistband of his pants
which is indicative of his unpreparedness when he was fired upon
simultaneously by the accused with their weapons.
The fact that the deceased received a total of 13 gunshot wounds is
inconsistent with the claim that the deceased was fired upon in self-
defense. (People vs. Perez, No. L-28583, April SCRA 603 ,
610)
In People vs. Aquino (No. L-32390, Dec. 28, 1973, 54 SCRA
409), the plea of self-defense was sustained. There were conflict-
ing versions as to how the victim was shot but the Supreme Court
sustained the version of the accused as being in accord with the
physical evidence. The prosecution tried to prove that the victim
was standing about two or three meters away from the truck where
the accused was seated as driver and that the accused, without any
exchange of words, shot the victim. The accused, on the other hand,
claimed that the victim went up the running board of the truck,
after pulling out a "balisong," and held on to the windshield frame.
When the victim lunged with his knife, the accused leaned far right,
at the same time parrying the hand of the victim who switched to
a stabbing position and, at that moment, the accused, who was
already leaning almost prone on the driver's seat, got his gun from
the tool box and shot the victim. The Court considered the physical
objective facts as not only consistent with, but confirming strongly,
the plea of self-defense. The direction and trajectory of the bullets

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would have been different had the victim been standing upright two
or three meters to the left of the truck.

When the aggressor flees, unlawful aggression no longer

exists.
When unlawful aggression which has begun no longer exists,
because the aggressor runs away, the one making a defense has no
more right to kill or even to wound the former aggressor.

People vs. Alconga, et al.

(78 Phil. 366)

Facts: The deceased was the banker in a game of black jack.

The accused posted himself behind the deceased acting as a spotter
of the cards and communicating by signs to his partner. Upon
discovering the trick, the deceased and the accused almost came
to blows. Subsequently, while the accused was seated on a bench
the deceased came and forthwith gave a blow with a "pingahan,"
but the accused avoided the blow by crawling under the bench. The
deceased continued with second and third blows, and the accused
in a crawling position fired his revolver. A hand to hand fight
ensued, the deceased with his dagger and the accused using his bolo.
Having sustained several wounds, the deceased ran away, but was
followed by the accused and another fight took place, during which
a mortal blow was delivered by the accused, slashing the cranium
of the deceased.

Held: There were two stages in the fight between the accused and
the deceased. During the first stage of the fight, the accused in inflicting
several wounds upon the deceased acted in self-defense, because then
the deceased, who had attacked the accused with repeated blows, was
the unlawful aggressor. But when the deceased after receiving several
wounds, ran away, from that moment there was no longer any danger
to the life of the accused who, being virtually unscathed, could have
chosen to remain where he was and when he pursued the deceased,
fatally wounding him upon overtaking him, Alconga was no longer
acting in self-defense, because the aggression begun by the deceased
ceased from the moment he took to his heels.

In a case where the deceased, who appeared to be the first

aggressor, ran out of bullets and fled, and the accused pursued him
and, after overtaking him, inflicted several wounds on the posterior
side of his body, it was held that in such a situation the accused
should have stayed his hand, and not having done so he was guilty of

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homicide. (People vs. Del C.A., 58 O.G. 7879, citing decisions

of the Supreme Court)

Retreat to take more advantageous position.

If it is clear that the purpose of the aggressor in retreating is to
take a more advantageous position to insure the success of the attack
already begun by him, the unlawful aggression is considered still
continuing, and the one making a defense has a right to pursue him
in his retreat and to disable him.

No unlawful aggression when there is agreement to fight.

1. No unlawful aggression in concerted fight, as when the
accused and the deceased, after an altercation in a bar,
agreed to fight, went to a store and purchased two knives;
that thereafter, the accused repeatedly expressed his desire
and wish to the deceased not to fight, and that the former
begged the latter that there be no fight between them,
and that the deceased paid no heed to such request and
attacked the accused; but the accused succeeded in killing
the deceased. It was held that the aggression was reciprocal
and legitimate as between two contending parties. (U.S.
vs. Navarro, 7 Phil. 713; See also People vs. Marasigan,
51 Phil. 701 and People vs. Gondayao, 30 SCRA 226)
2. There is agreement to fight in this case.
When the accused, pursued by the deceased, reached
his house, he picked up a pestle and, turning towards the
deceased, faced him, saying: "Come on if you are brave,"
and then attacking and killing him. It was held that the
accused did not act in self-defense, for what he did after
believing himself to be duly armed, was to agree to the
fight. (People vs. Monteroso, 51 Phil. 815)
3. The challenge to a fight must be accepted.
If the deceased challenged the accused to a fight and
forthwith rushed towards the latter with a bolo in his hand,
so that the accused had to defend himself by stabbing the
deceased with a knife, the accused, not having accepted the
challenge, acted in self-defense. (People vs. Del Pilar, C.A.,
44 O.G. 596)

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Reason for the rule.

Where the fight is agreed upon, each of the protagonists is at
once assailant and assaulted, and neither can invoke the right of
self-defense, because aggression which is an incident in the fight is
bound to arise from one or the other of the combatants. (People vs.
Quinto, 55 Phil.

When parties mutually agree to fight, it is immaterial who

attacks or receives the wound first, for the first act of force is an
incident of the fight itself and in no wise is it an unwarranted and
unexpected aggression which alone can legalize self-defense. (U.S. vs.
et 36 Phil. 837; People vs. Marasigan, 51 Phil. 701; People
vs. 56 Phil. 19; People vs. Neri, 77 Phil. 1091)

Aggression which is ahead of the stipulated time and place

is unlawful.
Where there was a mutual agreement to fight, an aggression
ahead of the stipulated time and place would be unlawful. The
acceptance of the challenge did not place on the offended party the
burden of preparing to meet an assault at any time even before
reaching the appointed time and place for the agreed encounter, and
any such aggression was patently illegal. (Severino Justo vs. Court
of Appeals, 53 O.G. 4083)

Illustration:
A and B were in the office of a division superintendent of
schools. A and B had an altercation. A grabbed a lead paper
weight from a table and challenged B to go out, to fight outside
the building. A left the office, followed by B. When they were in
front of the table of a clerk, B asked A to put down the paper
weight but instead A grabbed the neck and collar of the polo
shirt of B which was torn. B boxed A several times.
In this case, the aggression made by A which took place
before he and B could go out of the building is unlawful,
notwithstanding their agreement to fight.

One who voluntarily joined a cannot claim self-defense.

The court a quo rejected the claim of self-defense interposed by
the appellant. We find that such plea cannot be availed of because no

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unlawful aggression, so to speak, was committed by the deceased,

Rodolfo and H ern an d o Caun te against the appellant.
Appellant's version of the incident was to the effect that he had
come to the aid of Villafria at the latter's call when Villafria boxed
Mariano Dioso and engaged the group of Dioso, Saldo and Caunte in
a fight. In other words, he voluntarily joined the fight, when he did
not have to. He voluntarily exposed himself to the consequences of
a fight with his opponents. Granting arguendo that the first attack
came from Dioso or Saldo or Caunte, yet same cannot be considered
an unlawful or unexpected aggression. The first attack which came
from either is but an incident of the fight. (People vs.
64 O.G. 12632)

The rule now is "stand ground when in the right."

The ancient common law rule in homicide denominated "retreat
to the wall," has now given way to the new rule "stand ground when
in the right."
So, where the accused is where he has the right to be, the law does
not require him to retreat when his assailant is rapidly advancing
upon him with a deadly weapon. (U.S. vs. 37 Phil. 57)
The reason for the rule is that if one flees from an aggressor, he
runs the risk of being attacked in the back by the aggressor.

How to determine the unlawful aggressor.

In the absence of direct evidence to determine who provoked the
conflict, it has been held that it shall be presumed that, in the nature
of the order of things, the person who was deeply offended by the insult
was the one who believed he had a right to demand explanation of
the perpetrator of that insult, and the one who also struck the first
blow when he was not satisfied with the explanation offered. (U.S.
vs. Laurel, 22 Phil. 252)
The circumstance that it was the accused, not the deceased, who
had a greater motive for committing the crime on the ground that the
deceased had already sufficiently punished the accused on account
of his misbehavior and because he was publicly humiliated, having
gotten the worst of the fight between the two inside the theater, leads
the court to the conclusion that the claim of self-defense is really
untenable. (People vs. Berio, 59 Phil. 533)

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Unlawful aggression in defense of other rights.

Note that in the three classes of defense mentioned in paragraphs
2 and 3 of Art. the defense of rights requires also the first and
second requisites, namely, (1) unlawful aggression, and (2) reasonable
necessity of the means employed to prevent or repel it.

1. Attempt to rape a woman — defense of right to chastity.

a. Embracing a woman, touching her private parts and
her breasts, and throwing her to the ground for the
purpose of raping her in an uninhabited place when
it was twilight, constitute an attack upon her honor
and, therefore, an unlawful aggression. (People vs.
De la Cruz, 61 Phil. 344)

b. Placing of hand by a man on the woman's upper thigh

is unlawful aggression. (People vs. 76 Phil.
174)

2. Defense of property.
Defense of property can be invoked as a justifying
circumstance only when it is coupled with an attack on
the person of one entrusted with said property. (People vs.
Apolinar, C.A., 38 O.G. 2870)
3. Defense of home.
Violent entry to another's house at nighttime, by a
person who is armed with a and forcing his way into
the house, shows he was ready and looking for trouble, and
the manner of his entry constitutes an act of aggression.
The owner of the house need not wait for a blow before
repelling the aggression, as that blow may prove fatal.
(People vs. Mirabiles, 45 5th 277)
In this day and times when bold robberies and
thieveries are committed even under the very noses of the
members of the household and usually at night, courts
must not hesitate to sustain the theory of self-defense of
the victim of thievery or robbery when such thief or robber
by overt acts shows aggression instead of fear or desire to
escape upon apprehension for certainly such an intruder
must be prepared not only to steal but to kill under the

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Self-Defense

circumstances. In the case at bar, even if the accused did

not actually see the victim assault him with the
the mere fact that the victim assaulted the accused under
cover of darkness is such unlawful aggression as would
justify the accused to defend himself. (People vs. Salatan,
[CA] 69 O.G. 10134)

People vs. De la Cruz

(61 Phil. 344)

Facts: The accused, a woman, was walking home with a party

including the deceased, Francisco Rivera. It was already dark and they
were passing a narrow path. When the other people were far ahead,
the deceased who was following the accused suddenly threw his arms
around her from behind, caught hold of her breasts, kissed her, and
touched her private parts. He started to throw her down. When the
accused felt she could not do anything more against the strength of her
aggressor, she got a knife from her pocket and stabbed him.
Held: She was justified in making use of the knife in repelling
what she believed to be an attack upon her honor since she had no other
means of defending herself.

An attempt to rape a woman constitutes an aggression sufficient

to put her in a state of legitimate defense inasmuch as a woman's
honor cannot but be esteemed as a right as precious, if not more than
her very existence. The woman thus imperilled may kill her offender
if that is the only means left for her to protect her honor from so grave
an outrage. (People vs. Luague, et 62 Phil. 504)

People vs.
(76 Phil. 174)
Facts: The deceased was courting the accused in vain. One day,
the deceased approached her, spoke to her of his love which she flatly
refused, and he thereupon suddenly embraced and kissed her on account
of which the accused gave him fist blows and kicked him. Thereafter,
she armed herself with a fan knife, whenever she went out. One week
after the incident, the deceased entered a chapel, went to sit by the
side of the accused, and placed his hand on the upper part of her right
thigh. Accused pulled out her fan knife and with it stabbed the deceased
at the base of the left side of the neck, inflicting a mortal wound.
Held: The means employed by the accused in the defense of her
honor was evidently excessive. The chapel was lighted with electric
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Self-Defense
Par. 1

lights, and there were already several people, including her father and
the barrio lieutenant, inside the chapel. Under the there
was and there could be no possibility of her being raped.

The Supreme Court apparently considered in this case the

existence of unlawful aggression consisting in the deceased's placing
his hand on the upper portion of her right thigh. The accused was
not given the benefit of complete self-defense, because the means
employed was not reasonable. If the accused only gave the deceased
fist blows or kicked him, to prevent him from going further in his
attempt to commit an outrage upon her honor, she would have been
completely justified in doing so.

People vs. Apolinar

(C.A., 38 O.G. 2870)

Facts: The accused, armed with a shotgun, was looking over his
land. He noticed a man carrying a bundle on his shoulder. Believing
that the man had stolen his the accused shouted for him to stop,
and as he did not, the accused fired in the air and then at him, causing
his death.
Held: Defense of property is not of such importance as right to
life, and defense of property can be invoked as a justifying circumstance
only when it is coupled with an attack on the person of one entrusted
with said property.

Had the accused, who wanted to stop the thief then approaching
him, been attacked, say with a by that thief, he would have
been justified in shooting him, if the shotgun was the only available
weapon for his defense.
In such case, there would be unlawful aggression on the part of
the deceased, which is required even in defense of one's property. It
will be noted that in paragraph 1 of Article the opening clause,
which is followed by the enumeration of the three requisites, states:
"anyone who acts in defense of his person or rights." The word
"rights" includes right to property. Hence, all the three requisites of
self-defense, particularly unlawful aggression, must also concur in
defense of property.
In the case of People vs. Goya, CA-G.R. No. Sept. 29,
1956, the guard in a bodega surprised the injured party in the act

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Par. 1 Self-Defense

of going out through the door with a sack of To prevent the

latter from taking away a sack of palay, the guard fired a shot at the
party, inflicting less serious physical injuries. Held: Since the
injured party did not lay hands on the guard or make any attempt to
attack the latter, the guard cannot properly and legally claim defense
of property. There must be an attack by the one stealing the property
on the person defending it.

The belief of the accused may be considered in

determining the existence of unlawful aggression.
"A, in the peaceable pursuit of his affairs, sees B rushing rapidly
toward him, with an outstretched arm and a pistol in his hand,
and using violent menaces against his life as he advances. Having
approached near enough in the same attitude, A, who has a club in
his hand, strikes B over the head before or at the instant the pistol
is discharged; and of the wound B dies. It turns out the pistol was
loaded with powder only, and that the real design of B is only to
terrify A. Will any reasonable man say that A is more criminal than
he would have been if there had been a bullet in the pistol? Those who
hold such doctrine must require that a man so attacked must, before
he strikes the assailant, stop and ascertain how the pistol is loaded
— a doctrine which would entirely take away the essential right of
self-defense." (Lloyd's Report, p. 160, cited in U.S. vs. Ah Chong, 15
Phil. 502-503)

There is self-defense even if the aggressor used a toy

pistol, provided the accused believed it was a real gun.
That Crispin Oscimina's gun turned out to be a toy pistol is
inconsequential, considering its strikingly similar resemblance to a
real one and defendant-appellant's belief that a real gun was being
aimed at him. (People vs. 11 C.A. Rep. 914)

Forcibly pushing picketers to let company trucks enter the compound

is not unlawful aggression against the rights of the picketers.
The act of the security officer of a strike-bound company in
forcibly pushing the picketers after he had ordered them to give
way and let the company trucks to enter the compound, but the
picketers refused, does not constitute unlawful aggression against
the legitimate rights of the picketers as would justify its repulsion

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with equal and reasonable force such as inflicting physical injuries

upon the officer, for what was under attack by said security officer
was not the right of picketing, but the act of remaining in
the passageway when the trucks wanted to get inside, which is not a
part of the picketing protected by law. (People vs. et 3 C.A.
Rep.

Threat to inflict real injury as unlawful aggression.

mere threatening or intimidating attitude, not preceded by an
outward and material aggression, is not unlawful aggression, because
it is required that the act be offensive and positively strong, showing
the wrongful intent of the aggressor to cause an injury.

Mere threatening attitude is not unlawful aggression.

U.S. vs.
(13 Phil. 292)
Facts: As her husband had stayed away from home for more
than two weeks, remaining in the barrio of Dujat, distant about two
and one-half hours' walk from the town under the pretext that he was
engaged in field work, on the 20th of March, 1907, at about 2 p.m., the
accused decided to go to said barrio and join him. To this end she hired
a and after getting some clothes and other things necessary
for herself and husband, started out with her infant child and servant
girl; but before reaching the barrio and the where her husband
ought to be, night came on, and at about 7 o'clock she alighted and dis-
missed the vehicle after paying the driver. They had yet to travel some
distance. On seeing her husband's horse tied in front of a house, she
suspected that he was inside; thereupon she went to the steps leading
to the house, which was a low one, and then saw her husband sitting
down with his back toward the steps. She immediately entered the
house and encountered her husband, the deceased and the owners of
the house taking supper together. Overcome and blinded by jealousy
she rushed at Lorenza Estrada, attacked her with a pen knife that she
carried and inflicted five wounds upon her in consequence of which
Lorenza fell to the ground covered with blood and died a few moments
afterwards.
The accused pleaded not guilty, and in exculpation she alleged
that, when Lorenza Estrada saw her and heard her remonstrate with
her husband, she being then upstairs, Lorenza at once asked what
had brought her there and manifested her intention to attack her with
a knife that she carried in her hand, whereupon the accused caught
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the deceased by the right hand in which she held the weapon, and
immediately grappled with her, and in the struggle that ensued she
managed to get hold of a pen knife that she saw on the floor close by;
she could not say whether she struck the deceased with it as she could
not account for what followed.
Held: Even though it was true that when the accused Emilia, made
her appearance, the deceased Lorenza arose with a knife in her hand
and in a threatening manner asked the accused what had brought her
there, such attitude, under the provisions of Article 8, No. 4, of the Penal
Code (Art. par. 1, of the Revised Penal Code), does not constitute
the unlawful aggression, which, among others, is the first indispensable
requisite upon which exemption (justification) by self-defense may be
sustained.

In order to consider that unlawful aggression was actually

committed, it is necessary that an attack or material aggression, an
offensive act positively determining the intent the aggressor to cause
an injury shall have been made; a mere threatening or intimidating
attitude is not sufficient to justify the commission of an act which is
punishable per se, and allow a claim of justification on the ground
that it was committed in self-defense.

Examples of threats to inflict real injury:

When one aims a revolver at another with the intention of
shooting him. (Dec. Sup. Ct. Spain, Sept. 29, 1905)
2. The act of a person in retreating two steps and placing his
hand in his pocket with a motion indicating his purpose
to commit an assault with a weapon. (Dec. Sup. Ct. Spain,
June 26, 1891)
3. The act of opening a knife, and making a motion as if to
make an attack. (Dec. Sup. Ct. Spain, Oct. 24, 1895)
Note that in the above cases, the threatening attitude of the
aggressor is offensive and positively strong, showing the wrongful
intent of the aggressor to cause an injury.

When intent to attack is manifest, picking up a weapon is

sufficient unlawful aggression.
When the picking up of a weapon is preceded by circumstances
indicating the intention of the deceased to use it in attacking the
 JUSTIFYING CIRCUMSTANCES Art. 11
Par. 1

defendant, such act is considered unlawful aggression. (People vs.

Javier, 46 O.G. No. 7, July, 1950)

Aggression must be real, not merely imaginary.

Thus, whe n the accused, disliking the intervention of the
deceased in a certain incident between the accused and a couple,
armed himself with a gun and went to the house of the deceased, and
upon seeing the latter holding a kris in his hand, shot him to death,
there was no unlawful aggression, notwithstanding the claim of the
accused that the deceased was a man of violent temper, quarrelsome
and irritable, and that the latter might attack him with the kris,
because he merely imagined a possible aggression. The aggression
must be real, or, at least, imminent. (People vs. De la Cruz, 61 Phil.
422)

Aggression that is expected.

An aggression that is expected is still real, provided it is im-
minent.
It is well-known that the person who pursues another with
the intent and purpose of assaulting him does not raise his hand
to discharge the blow until he believes that his victim is within his
reach.
In this case, it is not necessary to wait until the blow is about
to be discharged, because in order that the assault may be prevented
it is not necessary that it has been actually perpetrated. (U.S. vs.
Batungbacal, 37 Phil. 382)

Second Requisite of Defense of Person or Right: Reasonable

necessity of the means employed to prevent or repel it.
This second requisite of defense presupposes the existence of
unlawful aggression, which is either imminent or actual. Hence, in
stating the second requisite, two phrases are used, namely: "to
prevent" and (2) When we are attacked, the danger to our
life or limb is either imminent or actual. In making a defense, we
prevent the aggression that places us in imminent danger or repel
the aggression that places us in actual danger. A threat to inflict real
injury places us in imminent danger. An actual physical assault places
us in actual danger.

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Art. 11 JUSTIFYING CIRCUMSTANCES
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In the case of U.S. us. Batungbacal, 37 Phil. 382, the Supreme

Court stated: "The law protects not only the person who repels an
aggression (meaning actual), but even the person who tries to prevent
an aggression that is expected (meaning
The second requisite of defense means that (1) there be a
necessity of the course of action taken by the person making a
defense, and (2) there be a necessity of the means used. Both must
be reasonable.
The reasonableness of either or both such necessity depends on
the existence of unlawful aggression and upon the nature and extent
of the aggression.

The necessity to take a course of action and to use a

means of defense.
The person attacked is not duty-bound to expose himself to be
wounded or killed, and while the danger to his person or life subsists,
he has a perfect and indisputable right to repel such danger by
wounding his adversary and, if necessary, to disable him completely
so that he may not continue the assault. (U.S. vs. Molina, 19 Phil.
227)

The reasonableness of the necessity depends upon the cir-

cumstances.
In emergencies where the person or life of another is
human nature does not act upon processes of formal reason but in
obedience to the instinct of self-preservation. The reasonableness of
the necessity to take a course of action and the reasonableness of the
necessity of the means employed depend upon the circumstances of
the case.
In a situation, like the one at bar, where the accused, who was
then unarmed, was being mauled with fistic blows by the deceased
and his companions for refusing their offer to drink wine, picked up
a lead pipe within his reach and with it struck the deceased on the
forehead resulting in the latter's death, the use by the accused of such
lead pipe under the circumstances is reasonable. That the accused
did not select a lesser vital portion of the body of the deceased to hit
is reasonably to be expected, for in such a situation, the accused has
to move fast, or in split seconds, otherwise, the aggression on his

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Self-Defense
Par. 1

person would have continued and his life endangered. (People vs.
C.A., 67 O.G. 3313)
1. Necessity of the course of action taken.
The necessity of the course of action taken depends
on the existence of unlawful aggression. If there was no
unlawful aggression or, if there was, it has ceased to exist,
there would be no necessity for any course of action to take
as there is nothing to prevent or to repel.
In determining the existence of unlawful aggression
that induced a person to take a course of action, the place
and occasion of the assault and the other circumstances
must be considered.
a. Place and occasion of the assault considered.
The comman d given to the accused by the
deceased in a dark and an uninhabited place, for the
purpose of playing a practical joke upon him, "Lie
down and give me your money or else you made
the accused act immediately by discharging his pistol
against the deceased. It was held that a person under
such circumstances cannot be expected to adopt a
less violent means of repelling what he believed was
an attack upon his life and property. (Dec. Sup. Ct.
Spain, March 17, 1885)
Similar illustration is given in the case of U.S.
vs. Ah Chong, 15 Phil. 501-502.
b. The darkness of the night and the surprise which
characterized the assault considered.
When the accused, while walking along in a dark
street at night with pistol in hand on the lookout for
an individual who had been making an insulting dem-
onstration in front of his house, was suddenly held
from behind and an attempt was made to wrench the
pistol from him, he was justified in shooting him to
death, in view of the darkness and the surprise which
characterized the assault. The deceased might be able
to disarm the accused and to use the pistol against
the latter. (People vs. Lara, 48 Phil. 153)

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No necessity of the course of action taken.

When the deceased who had attacked Alconga ran away, there
was no necessity for Alconga to pursue and kill the deceased. (People
vs. Alconga, 78 Phil. 366)
The theory of self-defense is based on the necessity on the part of
the person attacked to prevent or repel the unlawful aggression, and
when the danger or risk on his part has disappeared, his stabbing
the aggressor while defending himself should have stopped. (People
vs. Calavagan, C.A. G.R. No. August 10, 1955)
The claim of self-defense is not credible as the accused narrated
that he had succeeded in disarming the victim of the piece of wood the
latter was allegedly so that stabbing with such frequency, frenzy
and force can no longer be considered as reasonably necessary. (People
vs. Masangkay, No. Oct. SCRA
When the deceased who endeavored to set fire to the house of the
accused in which the two small children of the latter were sleeping
was already out of the house and prostrate on the ground, having been
boloed by the accused, there was no reasonable necessity of killing
her. (U.S. vs. Rivera, 41 Phil. 472 , 474)
While the accused might have been and doubtless was justified
in picking up the bamboo pole to keep his adversary at bay, he was not
justified in striking the head of the deceased with it, as he was not in any
real danger of his life, for his adversary, although armed with had
not attempted to draw it, and limited his assault to an attempt to push
the accused back to the shallow pool into which he had been thrown at
the outset of the quarrel. (U.S. vs. Pasca, 28 Phil. 222, 226)
While there was an actual physical invasion of appellant's prop-
erty when the deceased chiselled the walls of his house and closed
appellant's entrance and exit to the highway, which he had the right
to resist, the reasonableness of the resistance is also a requirement of
the justifying circumstance of self-defense or defense of one's rights.
When the appellant fired his shotgun from his window, killing his two
Victims, his resistance was disproportionate to the attack. (People vs.
121 SCRA 402-403)

When aggressor is disarmed.

When the wife was disarmed by her husband after wounding him
seriously but she struggled to regain possession of the bolo, there was

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Par. 1

a reasonable necessity for him to use said bolo to disable her, because
he was already losing strength due to loss of blood and to throw away
the bolo would only give her a chance to pick it up and again use it
against him. (People vs. Rabandaban, 85 Phil. 636, 637-638; People
vs. Datinguinoo, 47 O.G. 765)

But when the defendant, who had been attacked by the deceased,
succeeded in snatching the bolo away from the latter, and the deceased
already manifested a refusal to fight, the defendant was not justified
in killing him. (People vs. 56 Phil. 98, 101)

When only minor physical injuries are inflicted after unlaw-

ful aggression has ceased to exist, there is still self-
defense if mortal wounds were inflicted at the time the
requisites of self-defense were present.
The fact that minor physical injuries were inflicted by the
accused after the unlawful aggression had ceased and after he had
stabbed the deceased with two mortal wounds, said mortal wounds
having been inflicted at a time when the requisites of complete self-
defense were still present, cannot and should not affect the benefit of
said complete self-defense in the absence those relatively
small wounds contributed to or hastened the death of the deceased.
(People vs. Del Pilar, 44 O.G. 596)
This ruling should not be applied if the deceased, after receiving
minor wounds, dropped his weapon and signified his refusal to fight
any longer, but the accused hacked him to death. The reason is that
the wound inflicted, after the aggression had ceased, was the cause
of death.

The person defending is not expected to control his blow.

Defense of person or rights does not necessarily mean the killing
of the unlawful aggressor. But the person defending himself cannot
be expected to think clearly so as to control his blow. The killing of
the unlawful aggressor may still be justified as long as the mortal
wounds are inflicted at a time when the elements of complete self-
defense are still present.
One is not required, when hard pressed, to draw fine distinctions
as to the extent of the injury which a reckless and infuriated assailant

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 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 1 Self-Defense

might probably inflict upon him. (Brownell vs. People, 38 Mich. 732,
cited in the case of People vs. Sumicad, 56 Phil. 647)
The fact that the accused struck one blow more than was
necessary to save his own life, or that he failed to hold
his hand so as to avoid inflicting a fatal wound where a less severe
stroke might have served the purpose, would not negative self-defense,
because the accused, in the heat of an encounter at close quarters,
was not in a position to reflect coolly or to wait after each blow to
determine the effects thereof. (U.S. vs. Macasaet, 35 Phil. 229; People
vs. Espina, C.A., 49 O.G. 983)

And if it was necessary for the accused to use his revolver, he

could hardly, under the be expected to take deliberate
and careful aim so as to strike a point less vulnerable than the body
of his assailant. (U.S. vs. Mack, 8 Phil. 701; U.S. vs. 37 Phil.
57)

When the aggression is so sudden that there is no time left to the one
making a defense to determine what course of action to take.
At the moment the deceased was about to stab the superior of-
ficer of the accused, the latter hit the deceased with a brava.
The trial court believed that the accused should have only struck his
hand to disable it, or only hit him in a less vulnerable part of the body.
Held: The trial court demanded too much of the accused's wisdom,
judgment and discretion during the split second he had to think and
act to save his superior officer. (People vs. Pante, C.A., G.R. No. 5512 ,
March 29, 1940)

repelling or preventing an unlawful aggression, the one

defending must aim at his assailant, and not
indiscriminately fire his deadly weapon.
Even granting that while in a private discussion or quarrel with
his wife, appellant Galacgac was suddenly beaten twice on his head
with an iron bar by Pablo Soriano thus causing blood to ooze over
his eyes, appellant Galacgac certainly had no right to fire at random
his unlicensed revolver. He knew that there were many innocent
persons in Soriano's house, namely, his (Galacgac's) wife, his sister
and brother-in-law. Besides, there were many inhabited houses in
the vicinity of house No. 1238 Street. Of course, appellant

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 JUSTIFYING CIRCUMSTANCES
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Self-Defense
Par. 1

Galacgac had a perfect and lawful right to defend himself against the
unjustified assault upon his person made by Pablo Soriano. However,
because he did not aim at his assailant but instead indiscriminately
fired his deadly weapon at the risk of the lives and limbs of the in-
nocent persons he knew were in the place of occurrence, his act of
defense was not exercised with due care.

However, there being no intent to kill, appellant Galacgac was

held liable for physical injuries. (People vs. Galacgac, C.A., 54 O.G.
1027)
2. Necessity of the means used.

The means employed by the person making a defense

must be rationally necessary to prevent or repel an unlaw-
ful aggression.
Thus in the following cases, there was no rational
necessity to employ the means used.
a. A sleeping woman, who was awakened by her brother-
in-law grasping her arm, was not justified in using
a knife to kill him as the latter did not perform any
other act which could be construed as an attempt
against her honor. (U.S. vs. Apego, 23 Phil. 391)
b. When a person was attacked with fist blows only,
there was no reasonable necessity to inflict upon the
assailant a mortal wound with a dagger. (People vs.
Montalbo, 56 Phil. 443)
There was in this case a reasonable necessity to
act by using fist blows also. But there was no necessity
to employ a dagger to repel such an aggression.
When a man placed his hand on the upper thigh of
a woman seated on a bench in a chapel where there
were many people and which was well-lighted, there
was no reasonable necessity to kill him with a knife
because there was no danger to her chastity or honor.
(People vs. Jaurigue, 76 Phil. 174)
There was in this case a reasonable necessity to
stop the deceased from further doing the same thing
or more. But there was no necessity to use a knife.

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It is otherwise where the husband of the accused was kneeling

over her as she lay on her back on the ground and his hand choking
her neck when she pulled out the knife inserted at the left side of her
husband's belt and plunged it at his body hitting the left back portion
just below the waist. There was reasonable necessity of the use of the
knife. (People vs. Boholst-Caballero, No. L-23249, Nov. 1974, 61
SCRA 180, 189)

The test of reasonableness of the means used.

Whether or not the means employed is reasonable, will depend
upon the nature and quality of the weapon used by the aggressor, his
physical condition, character, size and other circumstances, and those
of the person defending himself, and also the place and occasion of
the assault.
Perfect equality between the weapon used by the one defending
himself and that of the aggressor is not required, because the person
assaulted does not have sufficient tranquility of mind to think, to
calculate and to choose which weapon to use. (People vs. Padua, C.A.,
40 O.G. 998)
"Reasonable necessity of the means employed does not imply
material commensurability between the means of attack and defense.
What the law requires is rational equivalence, in the consideration
of which will enter as principal factors the emergency, the imminent
danger to which the person attacked is exposed, and the instinct,
more than reason, that moves or impels the defense, and the propor-
tionateness thereof does not depend upon the harm done, but rests
upon the imminent danger of such injury." (People vs. Encomienda,
No. Aug. 18, 1972, 46 SCRA 522, 534, quoting People vs.
Lara, 48 Phil. 153; People vs. Paras, 9 Phil. 367)

As was already mentioned, the reasonableness of the means

employed will depend upon —
1. The nature and quality of the weapons:
a. Although as a general rule a dagger or a knife is more
dangerous than a club, the use of a knife or dagger,
when attacked with a club, must be deemed reason-
able if it cannot be shown that the person assaulted
(1) had other available means or (2) if there was other
means, he could coolly choose the less deadly weapon

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to repel the assault. (People vs. Padua, 40 O.G.

998)
In the case of U.S. vs. Laurel, 22 Phil. 252, a
similar ruling was applied.
The use of a bolo to repel the aggression by means
of a stick, the use of a knife against a rod, or a knife
against a stick was held to be reasonable under the cir-
cumstances. (People vs. Romero, C.A., 34 O.G. 2046)
But it was held that the use of a bayonet against
a cane is not reasonable. The accused could have
warded off the blows made by the deceased with his
cane. If the accused had only drawn his bayonet in
defense, that would have been enough to discourage
and prevent the deceased from further continuing
with his attack or sufficient to ward off the blows
given by the deceased when he attacked the accused.
In stab bi n g the deceased with his bayonet, the
accused went beyond what was necessary to defend
himself against the unlawful aggression made by the
deceased. (People vs. No. Nov. 29,
1962, 6 SCRA 688, 692-693)
Since the deceased was a gangster with a reputa-
tion for violence, the use by the accused of a dagger
to repel the persistent aggression by the deceased
with a wooden pestle is reasonably necessary under
the circumstances. (People vs. C.A., 44 O.G.
1255)
At a distance, stones hurled by the deceased, who
was a known boxer, big and strong, may constitute a
graver danger than a bolo. In such case, the use of a
bolo was held reasonable. (People vs. Aguilario, C.A.,
56 O.G. 757)
The use of a revolver against an aggressor armed
with a bolo was held reasonable, it appearing that the
deceased was advancing upon the accused and within
a few feet of striking distance when the latter shot
him. (U.S. vs. Mack, 8 Phil. 701)
In the case of People vs. Maliwanag, No. L-30302,
Aug. 58 SCRA 323, 331-332, it was held that

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there was reasonable necessity of the means employed

to repel the aggression from the deceased when the
appellant's only recourse in defending himself was
to use his service pistol against one who wielded a
deadly balisong knife.
b. To use a firearm against a dagger or a knife, in the
regular order of things, does not imply any difference
between such weapons. (Dec. Sup. Ct. of Spain, Oct.
27, 1887)
Thi s ru l in g i s subject to the l i m i t a t i o n s
mentioned in the case of People vs. Padua, supra,
namely: there was no other available means; or (2)
if there was other the one making a defense
could not coolly choose the less deadly weapon to repel
the aggression.
But when a person is attacked with fist blows, he must
repel the same with the weapon that nature gave him,
meaning with fists also. (People vs. Montalbo, 56 Phil.
443)
This ruling applies only when the aggressor and
the one defending himself are of the same size and
strength.
2. Physical condition, character and size.
a. Thus, when the one defending himself who was of
middle age, was cornered, had his back to the iron
railing, and three or four men bigger, and stronger
than he were striking him with fists, such person was
justified in using a knife. (People vs. 58 Phil.
858)
b. The aggressor was a bully, a man larger and stronger,
of known violent character, with previous criminal
records for assault. He attacked with fist blows a
smaller man who was then armed with a bolo. In
spite of having received, as a warning, a cut with a
bolo on the left shoulder, the aggressor continued to
attempt to possess himself of the bolo. Killing him with
a bolo was justified in this case. (People vs. Sumicad,
56 Phil. 643)

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The character of the aggressor is emphasized in this

case:
Considering that the aggressor provoked the
incident and started the aggression; considering that
he is of violent temperament, troublesome, strong
and aggressive with three criminal records, twice of
slander by deed and once of threat to kill; considering
that he wanted to impose his will on the family of
the accused for having rejected his nephew as a
suitor of the sister of the accused, boxing them one
after another and in their own home — the Court of
Appeals held that the accused was justified in striking
him with a bolo on the forehead and on the right eye.
(People vs. Padua, C.A., 40 O.G. 998)
3. Other circumstances considered.
In view of the imminence of the danger, a shotgun is
a reasonable means to prevent an aggression with a bolo.
M, being abruptly awakened by shouts that P was
p u rsu i n g H and M's two children, and seeing, upon
awakening, that in fact P was infuriated and pursuing H
with a bolo his hand and his arm raised in an attitude as if
to strike, took up a shotgun lying within his reach and fired
at P, killing him at once. Held: Under the circumstances,
in view of the imminence of the danger, the only remedy
which could be considered reasonably necessary to repel
or prevent that aggression, was to render the aggressor
harmless. As M had on hand a loaded shotgun, this weapon
was the most appropriate one that could be used for the
purpose, even at the risk of killing the aggressor, since
the aggression also gravely threatened the lives of
the parties assaulted. (U.S. vs. Batungbacal, 37 Phil. 382,
387-388)

Reasonable necessity of means employed to prevent or repel

unlawful aggression to be liberally construed in favor of
law- abiding citizens.
These are dangerous times. There are many lawless elements
who kill for the thrill of killing. There is no adequate protection for the

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law abiding citizens. When a lawless person attacks on the streets or

particularly in the victim's home, he should assume the risk of losing
his life from the act of self-defense by firearm of his victim; otherwise,
the law abiding citizens will be at the mercy of the lawless elements.
Hence, the requisite of reasonable necessity of the means employed
to prevent or repel the unlawful aggression should in these times of
danger be interpreted liberally in favor of the law-abiding citizens.
(People vs. So, 5 CAR [2s] 671 , 674)

Rule regarding the reasonableness of the "necessity of

the means employed" when the one defending himself is a
peace officer.
The peace officer, in the performance of his duty, represents
the law which he must uphold. While the law on self-defense allows
a private individual to prevent or repel an aggression, the duty of a
peace officer requires him to overcome his opponent.
Thus, the fact that a policeman, who was armed with a revolver
and a club, might have used his club instead, does not alter the
principle since a policeman's club is not a very effective weapon as
against a drawn knife and a police officer is not required to afford a
person attacking him, the opportunity for a fair and equal struggle.
(U.S. vs. Mojica, 42 Phil. 784, 787)

But in the case of U.S. vs. Mendoza, 2 Phil. it was held

that it is not reasonably necessary for a policeman to kill his assailant
to repel an attack with a
The use by a police officer of his service revolver in repelling the
aggression of the deceased who assaulted him with a kitchen knife
and continued to give him thrusts in the confines of a small room
measuring 6 feet by 6 feet is reasonable and necessary. Considering
the imminent danger to which his life was exposed at the time, he
could hardly be expected to choose coolly, as he would under normal
conditions, the use of his club as a less deadly weapon to use against
his assailant. As a police officer in the lawful performance of his official
duty, he must stand his ground and cannot, like a private individual,
take refuge in flight. His duty requires him to overcome his opponent.
(People vs. Caina, 14 CAR [2s] 93 , 99-100)
There is no evidence that the accused was also armed with a
weapon less deadly than a pistol. But even if he had a club with him,

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the pistol would still be a reasonable means to repel the aggression

of the deceased, for a police officer is not required to afford a person
attacking him with a drawn knife the opportunity for a fair and equal
struggle. While the law on self-defense allows a private individual
to prevent or repel an aggression, the duty of a peace officer requires
him to overcome his opponent. The peace officer, in the performance
of his duty, represents the law which he must uphold. (People vs. Uy,
Jr., 20 CAR [2s] 850, 859-860)

First two requisites common to three kinds of legitimate

defense.
The first two requisites thus far explained are common to self-
defense, defense of a relative, and defense of a stranger. These three
kinds of legitimate defense differ only in the third requisite.

Third requisite of self-defense.

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

Reason for the third requisite of self-defense.

When the person defending himself from the attack by another
gave sufficient provocation to the latter, the former is also to be blamed
for having given cause for the aggression.
Hence, to be entitled to the benefit of the justifying circumstance
of self-defense, the one defending himself must not have given cause
for the aggression by his unjust conduct or by inciting or provoking
the assailant.

Cases in which third requisite of self-defense considered

present.
The third requisite of self-defense is present —
When no provocation at all was given to the aggressor by
the person defending himself; or
2. When, even if a provocation was given, it was not sufficient;
or
3. When, even if the provocation was sufficient, it was not
given by the person defending himself; or

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4. When, even if a provocation was given by the person

defending himself, it was not proximate and immediate
to the act of aggression. (Decisions of the Supreme Court
of Spain of March 5, 1902 and of April 20, 1906)

No provocation at all.
Thus, when A shot B to death, because B was running amuck
and with a dagger was rushing towards A manifestly intending to
stab A, there was no provocation whatsoever on the part of A. The
third requisite of self-defense is present.

There was provocation, but not sufficient.

A, having discovered that B had built a part of his fence on A's
land, asked B why he had done so. This question angered B who
immediately attacked A. If A would kill B to defend himself, the
third requisite of self-defense would still be present, because even if
it is true that the question of A angered B, thereby making B attack
A, such provocation is not sufficient. (U.S. vs. Pascua, 28 Phil. 222)
A had a right to demand explanation why B had built the fence on
A's property. The exercise of a right cannot give rise to sufficient
provocation.

How to determine the sufficiency of provocation.

The provocation must be sufficient, which means that it should
be proportionate to the act of aggression and adequate to stir the
aggressor to its commission. (People vs. Alconga, 78 Phil. 366)
Thus, to engage in a verbal argument cannot be considered
sufficient provocation. (Decision of the Supreme Court of Spain of
October 5, 1877)
Is it necessary for the provocation to be sufficient that the one
who gave it must have been guilty of using violence and thus becoming
an unlawful aggressor himself?
No, it is not necessary.
The provocation is sufficient —
When one challenges the deceased to come out of the house
and engage in a fist-fight with him and prove who is the
better man. (U.S. vs. McCray, 2 Phil. 545)

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The versi on of th e d efen se d eserve s no credit.

Accused father and son ch all en ged the deceased to
and they killed him when he came out. One of the
first requisites of self- defense is unlawful aggression.
Accused father called out the deceased from his house
and provoked him to fight. Coming out, said accused
threw a stone at him. The deceased merely fought back
but together both accused assaulted him until he fell
wounded. (People vs. Valencia, No. L-58426 , Oct. 31 ,
1984 , 133 SCRA 82 , 86-87)

2. When one hurls insults or imputes to another the utterance

of vulgar language, as when the accused and his brothers
imputed to the deceased, the utterance of vulgar language
against them, which imputation provoked the deceased to
attack them. (People vs. Sotelo, 55 Phil. 403)

But it is not enough that the provocative act be

unreasonable or annoying. A petty question of pride does
not justify the wounding or killing of an opponent. (People
vs. C.A., 46 O.G. 1621)
3. When the accused tried to forcibly kiss the sister of the
deceased. The accused thereby gave sufficient provocation
to the deceased to attack him. There is no complete self-
defense, because the third requisite is not present. (People
vs. Getida, CA-G.R. No. Jan. 6, 1951)

Sufficient provocation not given by the person defending

himself.
Note the phrase "on the part of the person defending
in the third requisite of self-defense. Thus, in the case of People vs.
60 Phil. 266, it was held that the third requisite of self-
defense was present, because the provocation proven at the trial was
not given by the accused but by the brother-in-law of the deceased.

Requisite of "lack of provocation" refers exclusively

to "the person defending himself."
Thus, if the accused appears to be the aggressor, it cannot be said
that he was defending himself from the effect of another's aggression.
(People vs. Espino, 43 O.G. 4705)
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 Art. 11 JUSTIFYING CIRCUMSTANCES
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In the case People vs. Alconga, 78 Phil. the attack made by

the deceased when Alconga was the one defending himself during the
first stage of the fight, was not considered as a provocation to Alconga
in the second stage of the fight, because then he was the aggressor and
the third requisite of self-defense is limited to the person defending
himself.

Provocation by the person defending himself not proximate

and immediate to the aggression.
Thus, if A slapped the face of B one or two days before and
B, upon meeting A, attacked the latter but was seriously injured
when A defended himself, the provocation given by A should be
disregarded, because it was not proximate and immediate to the ag-
gression made by B. In this case, the third requisite of self-defense
is still present.
In the case of U.S. vs. Laurel, supra, the kissing of the girlfriend
of the aggressor was a sufficient provocation to the latter, but since
the kissing of the girl took place on December 26 and the aggression
was made on December 28, the provocation was disregarded by the
Supreme Court.

Illustration of the three requisites of self-defense.

People vs. Dolfo

(C.A., 46 O.G. 1621)

A was an electrician while B was his assistant. A called B to him,

who instead of approaching asked him, "Why are you calling me?" A
considered the retort as a provocative answer and suddenly threw a
4 by 2 inches piece of wood at B. B retaliated by throwing at A the
same piece of wood. A picked up the piece of wood, approached B and
started to beat him with the piece of wood. B defended himself with a
screwdriver and inflicted a mortal wound on A.
Question: (1) Was there sufficient provocation on the part of B
when he retorted "Why are you calling me?" (2) Was there reasonable
necessity in using the screwdriver to repel the attack?
Answer: (1) B's answer of "Why are you calling me?" when
summoned by A might have mortified and annoyed the latter but it
was not a sufficient provocation. The provocation must be sufficient or
proportionate to the act committed and adequate to arouse one to its
commission. It is not sufficient that the provocative act be unreasonable

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or annoying. A small question of self-pride does not justify hurting or

killing an opponent.
(2) The act of A in hurling the piece of wood at B when his
pride was hurt constituted unlawful aggression. Subsequent act of A in
attacking B with the piece of wood, after B had hurled back the thrown
piece of wood, was a continuation of the unlawful aggression already
begun. The subsequent act of A placed B in his defense, justifying the
use of a reasonable means to repel it.

(3) In determining whether or not a particular means employed

to repel an aggression is reasonable, the person attacked should not
be expected to judge things calmly and to act coolly or serenely as
one not under stress or not facing a danger to life or limb. The test
is: Considering the situation of the person defending himself, would
a reasonable man placed in the same circumstance have acted in the
same way? In this case, the screwdriver was a reasonable means to
repel the unlawful aggression of A. B was justified in killing him with
it. All the three requisites of self-defense were present. Hence, accused
B must be, as he was, acquitted.

All the elements of self-defense are present in this case.

The deceased husband of the accused was kneeling over her

as she lay on her back on the ground and his hand choking her neck
when she pulled out the knife tucked on the left side of her husband's
belt and plunged it at his body.

(2) A woman being strangled and choked by a furious aggressor

and rendered almost unconscious by the strong pressure on her throat,
she had no other recourse but to get hold of any weapon within her
reach to save herself from impending death. Reasonable necessity of
the means employed in self-defense does not depend upon the harm
done but rests upon the imminent danger of such injury.

(3) She did not give sufficient provocation to warrant the

aggression or attack on her person by her husband. While it was
understandable for the latter to be angry at his wife for finding her on
the road in the middle of the night, he was not justified in inflicting
bodily punishment with an intent to kill by choking his wife's throat.
All that she did was to provoke an imaginary commission of a wrong
in the mind of her husband, which is not a sufficient provocation under
the law of (People vs. Boholst-Caballero, No. Nov.
1974, 61 SCRA 180, 195-196)

Battered Woman Syndrome as a defense.

Un de r Rep. Act No . 926 2 o t h e r w i s e kn ow n a s A n t i - Violence

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Par. 1 Self-Defense

Against Women and their Children Act of 2004, which took effect on
March 27, 2004, it is provided that -
"Sec. 26. Battered Women Syndrome as a Defense. — Victim-
survivors who are found by the courts to be suffering from battered
women syndrome do not incur criminal and civil liability notwith-
standing the absence of any of the elements for justifying circum-
stances of self-defense under the Revised Penal Code.
In the determination of the state of mind of the woman who was
suffering from battered woman syndrome at the time of the commis-
sion of the crime, the courts shall be assisted by expert
psychiatrists/psychologists."

The Battered Woman Syndrome, explained.

In claiming self-defense, appellant raises the novel theory
of the battered woman (BWS). While new in Philippine
jurisprudence, the concept has been recognized in foreign jurisdictions
as a form of self-defense or, at the least, incomplete self-defense. By
appreciating evidence that a victim or defendant is afflicted with the
syndrome, foreign courts convey their "understanding of the justifiably
fearful state of mind of a person who has been cyclically abused and
controlled over a period of time."
A battered woman has been defined as a woman "who is repeat-
edly subjected to any forceful physical or psychological behavior by a
man in order to coerce her to do something he wants her to do without
concern for her rights. Battered women include wives or women in
any form of intimate relationship with men. Furthermore, in order
to be classified as a battered woman, the couple must go through
the battering cycle at least twice. Any woman may find herself in an
abusive relationship with a man once. If it occurs a second time, and
she remains in the situation, she is defined as a battered woman."
Battered women exhibit common personality traits, such as low
self-esteem, traditional beliefs about the home, the family and the
female sex role; emotional dependence upon the dominant male; the
tendency to accept responsibility for the batterer's actions; and false
hopes that the relationship will improve.
More graphically, the battered woman syndrome is characterized
by the so-called "cycle of violence," which has three phases: (1) the
tension-building phase; (2) the acute battering incident; and (3) the

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Self-Defense Par. 1

tranquil, loving (or, at least, nonviolent) phase. During the tension-

building phase, minor battering occurs — it could be verbal or slight
physical abuse or another form of hostile behavior. The woman usually
tries to pacify the batterer through a show of kind, nurturing behavior;
or by simply staying out of his way. What actually happens is that she
allows herself to be abused in ways that, to her, are comparatively
minor. All she wants is to prevent the escalation of the violence
exhibited by the batterer. This wish, however, proves to be double-
edged, because her "placatory" and passive behavior legitimizes his
belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to
placate him are not usually successful, and the verbal physical
abuse worsens. Each partner senses the imminent loss of control
and the growing tension and despair. Exhausted from the persistent
stress, the battered woman soon withdraws emotionally. But the more
she becomes emotionally unavailable, the more the batterer becomes
angry, oppressive and abusive. Often, at some unpredictable point,
the violence "spirals out of control" and leads to an acute battering
incident.
The acute battering incident is said to be characterized by bru-
tality, destructiveness and, sometimes, death. The battered woman
deems this incident as yet also inevitable. During this
phase, she has no control; only the batterer may put an end to the
violence. Its nature reasons for ending it. The battered woman usually
realizes that she cannot reason with him, and that resistance would
only exacerbate her condition.
At this stage, she has a sense of detachment from the attack
and the terrible pain, although she may later clearly remember
every detail. Her apparent passivity in the face of acute violence may
be rationalized thus: the batterer is almost always much stronger
physically, and she knows from her past painful experience that it is
futile to fight back. Acute battering incidents are often very savage
and out of control, such that innocent bystanders of are
likely to get hurt.
The final phase of the cycle of violence begins when the acute
battering incident ends. During this tranquil period, the couple
experience profound relief. On the one hand, the batterer may show
a tender and nurturing behavior towards his partner. He knows that
he has been viciously cruel and tries to make up for it, begging for her
forgiveness and promising never to beat her again. On the other hand,

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the battered woman also tries to convince herself that the battery
will never happen again; that her partner will change for the better;
and that this "good, gentle and caring man" is the real person whom
she loves.
A battered woman usually believes that she is the sole anchor
of the emotional stability of the batterer. Sensing his isolation and
despair, she feels responsible for his well-being.
The truth, though, is that the chances of his reforming, or
seeking or receiving professional help, are very slim, especially if she
remains with him. Generally, only after she leaves him does he seek
professional help as a way of getting her back. Yet, it is in this phase
of remorseful reconciliation that she is most thoroughly tormented
psychologically.
The illusion of absolute interdependency is well-entrenched in
a battered woman's psyche. In this phase, she and her batterer are
indeed emotionally dependent on each for his
behavior, he for her forgiveness. Underneath this miserable cycle of
violence and each partner may believe that
it is better to die than to be separated. Neither one may really feel
independent, capable of functioning without the other." (People vs.
Genosa, G.R. No. 135981, January 15, 2004.)

Effect of Battery on Appellant

Because of the recurring cycles of violence by the
abused woman, her state of mind metamorphoses. In determining
her state of mind, we cannot rely merely on the judgment of an
ordinary, reasonable person who is evaluating the events immediately
surrounding the incident. A Canadian court has aptly pointed out
that expert evidence on the psychological effect of battering on wives
and common law partners are both relevant and necessary. "How
can the mental state of the appellant be appreciated without it? The
average member of the public may ask: Why would a woman put up
with this kind of treatment? Why should she continue to live with
such a man? How could she love a partner who beat her to the point
of requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not cut loose
and make a new life for herself? Such is the reaction of the average
person confronted with the so-called wife
To understand the syndrome properly, however, one's viewpoint
should not be drawn from that of an ordinary, reasonable person. What

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Par. 1

goes on in the mind of a person who has been subjected to repeated,

severe beating may not be consistent comprehensible
those who have not been through a similar experience. Expert opinion
is essential to clarify and refute common myths and misconceptions
about battered women.
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the United
States and the United Kingdom on the treatment and prosecution of
cases, in which a battered woman is charged with the killing of her
violent partner. The psychologist explains that the cyclical nature of
the violence inflicted upon the battered woman immobilizes the latter's
"ability to act decisively in her own interests, making her feel trapped in
the relationship with no means of escape." In her years of research, Dr.
Walker found that "the abuse often escalates at the point of separation
and battered women are in greater danger of dying then."
Corroborating these research findings, Dra. Dayan said that "the
battered woman usually has a very low opinion of herself. She has x
x x self-defeating and self-sacrificing x x x [W]hen the
violence would happen, they usually think that they it,
that they were the one[s] who precipitated the violence that] they
provoke[d] their spouse to be physically, verbally and even sexually
abusive to them."
According to Dra. Dayan, there are a lot of reasons why a
battered woman does not readily leave an abusive partner — poverty,
and guilt arising from the latter's belief that she provoked
the violence, that she has an obligation to keep the family intact at
all cost for the sake of their children, and that she is the only hope
for her spouse to change.
The testimony of another expert witness, Dr. Pajarillo, is also
helpful. He had previously testified in suits involving violent family
relations, having evaluated "probably ten to twenty thousand" violent
family disputes within the Armed Forces of the Philippines, wherein
such cases abounded. As a result of his experience with domestic
violence cases, he became a consultant of the Battered Woman Office
in Quezon City. As such, he got involved in about forty (40) cases of
severe domestic violence, in which the physical abuse on the woman
would sometimes even lead to her loss of
Dr. Pajarillo explained that "overwhelming brutality, trauma"
could result in post traumatic stress disorder, a from of "anxiety
neurosis or neurologic After being repeatedly and severely

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Par. 2 Defense of Relatives

abused, battered persons "may believe that they are essentially

helpless, lacking power to change their x x x [A]cute
battering incidents can have the effect of stimulating the development
of coping responses to the trauma at the expense of the victim's
ability to muster an active response to try to escape further trauma.
Furthermore, x x x the victim ceases to believe that anything she can
do will have a predictable positive effect."
A study conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that "even if a person has control
over a situation, but believes that she does not, she will be more likely
to respond to that situation with coping responses rather than trying
to escape." He said that it was the cognitive individual's
proved all-important. He referred to this phenomenon
helplessness." [T]he truth or facts of a situation turn out
to be less important than the individual's set of beliefs or perceptions
concerning the situation. Battered women don't attempt to leave
the battering situation, even when it may seem to outsiders that
escape is because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
circumstances."
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes
that he is capable of killing her, and that there is no escape. Bat-
tered women feel unsafe, suffer from pervasive anxiety, and usually
fail to leave the relationship. Unless a shelter is available, she stays
with her husband, not only because she typically lacks a means of
self-support, but also because she fears that if she leaves she would
be found and hurt even more. (People vs. Genosa, G.R. No. 135981,
January 15, 2001).

Flight, incompatible with self-defense.

The appellant went into hiding after the hacking incident. Suffice it
to state that flight after the commission of the crime is highly evidentiary
of guilt, and incompatible with self-defense (People vs. G.R.
No. citing People vs. 132 SCRA 116).

Par. 2 - DE FENSE OF
Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by
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 JUSTIFYING CIRCUMSTANCES
Art. 11
Defense of Relatives
Par. 2

consanguinity within the fourth civil degree, provided that the first
and second requisites prescribed in the next preceding circumstance
are present, and the further requisite, in case the provocation was
given by the person attacked, that the one making defense had no part
therein.

Relatives that can be defended.

1. Spouse.
2. Ascendants.
3. . Descendants.

4. Legitimate, natural or adopted brothers and sisters, or

relatives by affinity in the same degrees.
5. Relatives by consanguinity within the fourth civil degree.
Relatives by affinity, because of marriage, are parents-in-law,
son or daughter-in-law, and brother or sister-in-law.
Death of the spouse terminates the relationship by affinity (Kelly
v. 12 Ark. 667, 659, 56 288; Chase vs. Jennings, 38 Me.
unless the marriage has resulted in issue who is still living, in
which case the relationship of continues. vs. Dear-
10 191; Bigelow vs. Sprague, 140 Mass. 425, 5 NE 144)
Consanguinity refers to blood relatives. Brothers and sisters are
within the second civil degree; uncle and niece or aunt and nephew are
within the third civil degree; and first cousins are within the fourth
civil degree.
Thus, if A acted in defense of the husband of A's sister-in-law,
there is no defense of relative, because the relation between A and
the husband of A's sister-in-law is not one of those mentioned in
paragraph 2 of Article 11. (People vs. Cabellon, 51 Phil. 846) The
husband of A's sister-in-law is a stranger to A for purpose of the law
on defense of relatives.

Basis justification.
The justification of defense of relatives by reason of which the
defender is not criminally liable, is founded not only upon a humani-
tarian sentiment, but also upon the impulse of blood which impels
men to rush, on the occasion of great perils, to the rescue of those
close to them by ties of blood. (Albert)
195
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 2 Defense of Relatives

Requisites of defense of relatives:

Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or
repel it; and
In case the provocation was given by the person attacked,
the one making a defense had no part therein. (See People
vs. G.R. No. 72976, July 9, 1990, 187 SCRA 291,
295; People vs. Agapinay, G.R. No. 77776, June 27, 1990,
186 SCRA 812, 823)

First two requisites are the same as those of self-defense.

The meaning of "unlawful aggression" and that of "reasonable
necessity of the means employed to prevent or repel it" are already
explained in the discussion of self-defense.

Defense of relatives also requires that there be unlawful

aggression.
Of the three re q u i si te s of defense of relati ves, unl awfu l
aggression is the most essential and primary, without which any
defense is not possible or justified. (People vs. Agapinay, supra)
Of the three (3) requisites of defense of relatives, unlawful
aggression is a condition sine qua non, for without it any defense is not
possible or justified. In order to consider that an unlawful aggression
was actually committed, it is necessary that an attack or material
aggression, an offensive act positively determining the intent of the
aggressor to cause an injury shall have been made; a mere threatening
or intimidating attitude is not sufficient to justify the commission of
an act which is punishable per se, and allow a claim of exemption
from liability on the ground that it was committed in self-defense
or defense of a relative. (Balunueco vs. Court of Appeals, G.R. No.
126968, April 9, 2003)
When two persons are gettin g ready to strike each other,
there can be no unlawful aggressi on , and hence, a relative of
either who butts in and ad mi n i sters a deadly blow on the other
to prevent him from doing harm is not acting in defense of a rela-
tive, but is guilty of homicide. (People vs. Moro Munabe, 46
O.G. 4392 )

196
 JUSTIFYING CIRCUMSTANCES
Art. 11
Defense of Relatives
Par. 2

In this case, when he saw the deceased and his brother facing
each other in a fight, each holding a taki taki, an for up-
rooting rubber seedlings, the accused hit the deceased on the head
with his taki taki, causing the latter's death.
If the accused appears to be the aggressor, he cannot invoke the
defense of having acted in defense of a relative. (People vs.
C.A., 40 O.G. 1477)

Must unlawful aggression exist as a matter of fact, or can it

be made to depend upon the honest belief of the one
making a defense?
Yes, it can be made to depend upon the honest belief of the one
making a defense. (U.S. vs. 17 Phil. 260, 264)
Thus, when A attacked and wounded B with a dagger, causing
the latter to fall down, but B immediately stood up and defended
himself by striking A with a bolo and as a result, A was seriously
wounded and fell in the mud with B standing in front of A in a position
as if to strike again in case A would stand up, there is no doubt that
A was the unlawful aggressor. But when the sons of A came, what
they saw was that their father was lying in the mud wounded. They
believed in good faith that their father was the victim of an unlawful
aggression. If they killed B under such circumstances, they are
justified.

In that case, there was a mistake of fact on the part of the sons
of A.
Even in self-defense, the Supreme Court of Spain held that when
a person while walking at night in an uninhabited place was ordered
by someone to halt and give his money, such person was justified
in shooting that someone, even if he turned out to be a friend, only
playing a practical joke.

Gauge of reasonable necessity of the means employed to repel the ag-

gression.
The gauge of reasonable necessity of the means employed to
repel the aggression as against one's self or in defense of a relative is
to be found in the situation as it appears to the person repelling the
aggression. It has been held time and again that the reasonableness

197
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 2 Defense of Relatives

of the means adopted is not one of mathematical calculation or

rial commensurability between the means of attack and but
the imminent danger against the subject of the attack as perceived
by the defender and the instinct more than reason that moves the
defender to repel the attack. (Eslabon vs. People, No. Feb.
24, 1984, 127 SCRA 785, 790-791)

Third requisite of defense of relative.

The clause, "in case the provocation was given by the person
attacked," used in stating the third requisite of defense of relatives,
does not mean that the relative defended should give provocation to
the aggressor. The clause merely states an event which may or may
not take place.
The phrase "in case" means "in the event that."
There is still a legitimate defense of relative even if the relative
being defended has given provocation, provided that the one defend-
ing such relative has no part in the provocation.

Reason for the rule:

That although the provocation prejudices the person who gave
it, its effects do not reach the defender who took no part therein, be-
cause the latter was prompted by some noble or generous sentiment
in protecting and saving a relative.

When the third requisite is lacking.

The accused was previously shot by the brother of the victim. It
cannot be said, therefore, that in attacking the victim, the accused
was impelled by pure compassion or beneficence or the lawful desire
to avenge the immediate wrong inflicted on his cousin. Rather, he
was motivated by revenge, resentment or evil motive because of a
running feud between them. (People vs. Toring, G.R. No. 56358, Oct.
26, 1990, 191 SCRA 38, 47)

The fact that the relative defended gave provocation is im-

material.
Thus, even if A had slapped the face of B who, as a consequence
of the act of A, immediately commenced to retaliate by drawing a

198
 JUSTIFYING CIRCUMSTANCES
Art. 11
Defense of Stranger
Par. 3

knife and trying to stab A, and C, father of A, killed B in defense of

his son, C is completely justified, notwithstanding the fact that the
provocation was given by his son A.

But if C had induced his son A to injure B, thereby taking part

in the provocation made by A, C would not be completely justified
in killing B while the latter was about to stab A, because the third
requisite of defense of relative is lacking.
Suppose, the person defending his relative was also induced by
revenge or hatred, would there be a legitimate defense of relative?
As long as the three requisites of defense of relatives are present, it
will still be a legitimate defense.

Examples of defense of relatives.

1. The accused, at a distance of about 20 from his house,
heard his wife shouting for help. He rushed to the house and
once inside saw the deceased on top of his wife. He drew his
bolo and hacked the deceased at the base of his neck when the
latter was forcibly abusing his wife. (People vs. Ammalun, C.A.,
51 O.G. 6250)

2. Domingo Rivera challenged the deceased to prove who of them

was the better man. When the deceased picked up a bolo and
went after him, Domingo Rivera took to flight. The deceased
pursued him and upon overtaking him inflicted two wounds.
Antonio Rivera, father of Domingo, rushed to his son's assistance
and struck with a cane the bolo from the hands of the deceased.
Domingo Rivera inflicted fatal wounds upon the While
the son was originally at fault for giving provocation to the de-
ceased, yet the father was justified in disarming the deceased,
having acted in lawful defense of his son. But Domingo Rivera
was declared guilty of the crime of homicide. (U.S. vs. Rivera,
26 Phil. 138)

Par. 3 - DEFENSE OF STRANGER.

Anyone who acts in defense of the person or rights of a
stranger, provided that the first and second requisites mentioned
in the first circumstance of this article are present and that the
person defending be not induced by revenge, resentment, or other
evil motive.

199
Art. JUSTIFYING CIRCUMSTANCES
Par. 3 Defense of Stranger

Requisites:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or
repel it; and
3. The person defending be not induced by revenge, resentment,
or other evil motive. (See People vs. Moral, No.
Oct. 12, 1984, 132 SCRA 474, 485)
Note that the first two requisites are the same as those of self-
defense and defense of relatives.

Basis of defense of stranger.

What one may do in his defense, another may do for him. Persons
acting in defense of others are in the same condition and upon the
same plane as those who act in defense of themselves. The ordinary
man would not stand idly by and see his companion killed without
attempting to save his life. (U.S. vs. 38 Phil. 10, 13)

Third requisite of defense of stranger.

This Code requires that the defense of a stranger be actuated
by a disinterested or generous motive, when it puts down "revenge,
resentment, or other evil as illegitimate. (Albert)

Who are deemed strangers?

Any person not included in the enumeration of relatives
mentioned in paragraph 2 of this article, is considered stranger for
the purpose of paragraph 3. Hence, even a close friend or a distant
relative is a stranger within the meaning of paragraph 3.

The person defending "be not induced."

Paragraph 3 of Art. 11 uses the phrase "be not induced." Hence,
even if a person has a standing grudge against the assailant, if he
enters upon the defense of a stranger out of generous motive to save
the stranger from serious bodily harm or possible death, the third
requisite of defense of stranger still exists. The third requisite would
be lacking if such person was prompted by his grudge against the as-
sailant, because the alleged defense of the stranger would be only a
pretext.

200
 JUSTIFYING CIRCUMSTANCES
Art. 11
Avoidance of Greater Evil or Injury
Par. 4

If in defending his wife's brother-in-law, the accused acted also

from an impulse of resentment against the deceased, the third req-
uisite of defense of stranger is not present. (People vs. Cabellon and
Gaviola, 51 Phil. 851)

Examples of defense of stranger:

1. A was able to deprive B, a constabulary lieutenant, of his pistol

during the fray. B ordered C, a constabulary soldier under his
command, to search A for the pistol. When C was about to ap-
proach A to search him, the latter stepped back and shot at C
who was able to avoid the shot. When A was about to fire again
at C, D, another constabulary soldier, fired at A with his rifle
which killed him.

Held: D was justified in killing A, having acted in defense of

stranger. (People vs. et 66 Phil. 638)
2. A heard screams and cries for help. When A responded, he saw
B attacking his (B's) wife with a dagger. A approached B and
struggled for the possession of the weapon, in the course of which
A inflicted wounds on B.

Held: A acted in defense of a stranger. (People vs. Valdez, 58

Phil. 31)

Furnishing a weapon to one in serious danger of being throttled is

defense of stranger.
A Japanese hit an old man 78 years of age on the face, shoved
him to the ground and attempted to choke him. The accused furnished
the old man with a small gaff, used by game cocks, with which the
old man killed his assailant. The accused was justified in furnishing
the old man with the gaff, it being in defense of stranger. (U.S. vs.
Subingsubing, 31 Phil. 376)

Par. 4 - AVOIDANCE OF GREATER EVIL OR INJURY.

Any person who, in order to avoid an evil or injury, does an
act which causes damage to another, provided that the following
requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to
avoid it;
201
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 4 Avoidance of Greater Evil or Injury

Third. That there be no other practical and less harmful

means of preventing it.

"Damage to
This term covers injury to persons and damage to property.
The Court of Appeals applied paragraph 4 of Art. in a case
of slander by deed, a crime against honor, where the accused (a
woman) who was about to be married to the offended party eloped
with another man, after the offended had made preparations
for the wedding, the Court holding that there was a necessity on the
part of the accused of avoiding a loveless marriage with the offended
party, and that her refusal to marry him and her eloping with the
man whom she loved were justified and did not amount to the crime of
slander by deed. (People vs. Norma Hernandez, C.A., 55 O.G. 8465)

the evil sought to be avoided actually exists."

The evil must actually exist. If the evil sought to be avoided

is merely expected or anticipated or may happen in the future,
paragraph 4 of Art. is not applicable.

Example of injury to person under paragraph 4:

A person was driving his car on a narrow road with due diligence
and care when suddenly he saw a "six by six" truck in front of his car.
If he would swerve his car to the left he would fall into a precipice, or
if he would swerve it to the right he would kill a passer-by. He was
forced to choose between losing his life in the precipice or sacrificing
the life of the innocent bystander. He chose the latter, swerved his
car to the right, ran over and killed the passer-by. (Guevara)
In view of this example and the principle involved, the killing
of the foetus to save the life of the mother may be held excusable.

"That the injury feared be greater than that done to avoid it."
Does the foregoing example violate the second condition required
by the Code, that is, that the injury feared be greater than that done
to avoid
No, because the instinct of self-preservation will always make
one feel that his own safety is of greater importance than that of
another.
202
 JUSTIFYING CIRCUMSTANCES
Art. 11
Avoidance of Greater Evil or Injury
Par. 4

The greater evil should not be brought about by the negligence or

imprudence of the actor.
Thus, if in the example above, the driver drove his car at full
speed, disregarding the condition of the place, and although he
saw the "six by six" truck at a distance 500 meters away, he did
not slacken his speed, he cannot invoke paragraph 4 of this article,
because the state of necessity was brought about by his own reckless
imprudence.

When the accused was not avoiding any evil, he cannot invoke the
justifying circumstance of avoidance of a greater evil or injury.
Pio with a bolo and Severo with an axe attacked Geminiano
who was wounded. Nearby, Juan embraced Marianito, Geminiano's
son, who had a gun slung on his shoulder, and grappled with him.
Geminiano died. Pio, Severo and Juan were prosecuted for murder.
Juan invoked the justifying circumstance of avoidance of a greater evil
or injury (Par. 4, Article in explaining his act of preventing
Marianito from shooting Pio and Severo.

Held: His reliance on that justifying circumstance is

The act of Juan in preventing Marianito de Leon from
shooting and Severo Padernal, who were the aggressors,
was designed to insure the killing of Geminiano de Leon without any
risk to his assailants. Juan Padernal was not avoiding any evil when
he sought to disable Marianito. (People vs. Ricohermoso, et 56
SCRA 431)

Note: Even if Marianito was about to shoot Pio and Severo,

his act, being in defense of his father, is not an evil that
could justifiably be avoided by disabling Marianito.

Examples of damage to property under paragraph 4:

1. Fire breaks out in a cluster of nipa houses, and in order to
prevent its spread to adjacent houses of strong materials, the
surrounding nipa houses are pulled down. (Albert)
2. Where a truck of the Standard Vacuum Oil Co. delivering
gasoline at a gas station caught fire and, in order to prevent
the burning of the station, the truck was driven to the middle
of the street and there abandoned, but it continued to move and

203
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
thereafter crashed against and burned a house on the other side
of the street, the owner of the house had a cause of action against
the owner of the gas station under paragraph 2 of Art. 101, in
relation to paragraph 4 of Art. 11. (Tan vs. Standard Vacuum
Oil Co., 91 Phil. 672)
3. During the storm, the ship which was heavily loaded with goods
was in danger of sinking. The captain of the vessel ordered
part of the goods thrown overboard. In this case, the captain
is not criminally liable for causing part of the goods thrown
overboard.

The evil which brought about the greater evil must not result from a
violation of law by the actor.
Thus, an escaped convict who has to steal clothes in order to
move about unrecognized, does not act from necessity. (Albert) He is
liable for theft of the clothes.

There is civil liability under this paragraph.

Although, as a rule there is no civil liability in justifying cir-
cumstances, it is only in paragraph 4 of Art. where there is civil
liability, but the civil liability is borne by the persons benefited.
In cases falling within subdivision 4 of Article the persons for
whose benefit the harm has been prevented, shall be civilly liable in
to the benefit which they may have received. (Art. 101)

Par. 5. - FULFILLMENT OF DUTY OR LAWFUL

EXERCISE OF RIGHT OR OFFICE.
Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.

Requisites:
That the accused acted in the performance of a duty or in
the lawful exercise of a right or
2. That the injury caused or the offense committed be the
necessary consequence of the due performance of duty or
the lawful exercise of such right or office. (People vs. Oanis,
74 Phil. 257, 259; People vs. Pajenado, No. L-26458, Jan.
30, 1976, 69 SCRA 172, 177)

204
 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
In the case of People vs. Oanis, supra, the first requisite is
present, because the accused peace officers, who were trying to get a
wanted criminal, were acting in the performance of a duty.
The second requisite is not present, because through impatience,
over-anxiety, or in their desire to take no chances, the accused ex-
ceeded in the fulfillment of their duty when they killed a sleeping
person whom they believed to be the wanted criminal without making
any previous inquiry as to his identity.

Fulfillment of duty.
People vs. Felipe
(46 Phil. 738)
Facts: Lorenzo Napilon escaped from the jail where he was serving
sentence.
Some days afterwards the policeman, Felipe Delima, who was
looking for him, found him in the house of Jorge armed with
a pointed piece of bamboo in the shape of a lance, and demanded
his surrender. The fugitive answered with a stroke of his lance. The
policeman dodged it, and to impose his authority fired his revolver,
but the bullet did not hit him. The criminal ran away, without parting
with his weapon. The peace officer went after him and fired again his
revolver, this time hitting and killing him.
The policeman was tried and convicted by the Court of First
Instance of homicide and sentenced to temporal and the
accessory penalties.
Held: The killing was done in the performance of a duty. The
deceased was under the obligation to surrender, and had no right, after
evading service of his sentence, to commit assault and disobedience
with a weapon in his hand, which compelled the policeman to resort
to such an extreme means, which, although it proved to be fatal, was
justified by the circumstances.
Article 8, No. 11 of the Penal Code (Art. 11, par. 5, Revised Penal
Code) being considered, Felipe Delima committed no crime, and he is
hereby acquitted with costs de
Ruling in Delima case, applied to the case of a guard who killed a
detained prisoner while escaping.
If a detained prisoner under the custody of the accused, a
man detailed to guard him, by means of force and violence, was able

205
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
to leave the cell and actually attempted to escape, notwithstanding
the warnings given by the accused not to do so, and was shot by the
accused, the latter is entitled to acquittal in accordance with the
ruling laid down in People vs. Delima, 46 Phil. 738. (People vs. Bisa,
C.A., 51 O.G. 4091)

Ruling in the Delima case, applied to a case where an

escaping detainee charged with a relatively minor offense
of stealing a chicken was shot to death by a policeman.
In this case, four members of the police force went after him
as soon as the detention prisoner had escaped. When the escaping
detainee saw one of the policemen, he lunged at the latter, hitting
him with a stone on the right cheek, as a consequence of which he
fell down, and while in that position on the ground, he was again
struck with a stone by the escaping detainee; thereafter, the latter
ran away pursued by the policeman and his in the course
of the pursuit, the policeman fired a warning shot into the air, and as
the escaping detainee paid no heed to this, the policeman fired into
the air four times more and kept on pursuing him; as the latter was
apparently widening the distance between them, and fearing that
he might finally be able to elude arrest, the policeman fired directly
at him while he was in the act of jumping again into another part of
the creek, the shot having hit him on the back. (Valcorza vs. People,
30 SCRA 148-150)

People vs. Lagata

(83 Phil. 159)

Facts: When the guard called his order to assemble, one of the
prisoners was missing. So, he ordered the others to look for him. The
other prisoners scampered. The guard fired at two of the prisoners,
wounding one and killing the other (Tipace). His reason was
to prevent the attempt of the prisoners to escape.
Held: As regards the shooting of Abria and Tipace, we are con-
vinced that the facts were as narrated by the witnesses for the pros-
ecution. Abria was shot when he was only three meters away from
the guard and the defense has not even shown that Abria attempted
to escape. Tipace was also shot when he was about four or five meters
away from the guard. The latter's allegation that Tipace was running,
— conveying the idea that said prisoner was in the act of escaping,

206
 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
— appears to be inconsistent with his own testimony to the effect that
Tipace was running sidewise, with his face looking towards him (the
guard), and with the undisputed fact that Tipace was hit near one axilla,
the bullet coming out from the opposite shoulder. If Tipace's purpose
was to escape, the natural thing for him to do would have been to give
his back to the guard.
It is clear that the guard had absolutely no reason to fire at Tipace.
The guard could have fired at him in self-defense or if absolutely neces-
sary to avoid his escape.

Five Justices believed that the prisoner who was killed was not
escaping. The four Justices who dissented believed that the prisoner
was escaping or running away when he was shot by the guard. All
the Justices agreed that a guard is justified in shooting an escaping
prisoner.

In the case of U.S. vs. Magno, et 8 Phil. 314, where the

prisoner attempted to escape, and the Constabulary soldiers, his
custodians, shot him to death in view of the fact that the prisoner,
disregarding the warning of his custodians, persisted in his attempt
to escape, and there was no other remedy but to fire at him in order
to prevent him from getting away, it was held that the Constabu-
lary soldiers acted in the fulfillment of duty and, therefore, were not
criminally liable.

Shooting an offender who refused to surrender is justified.

In the case People vs. Gayrama, 60 Phil. 796, where the ac-
cused, who had slashed with a bolo the municipal president on his
arm, ran away and refused to be arrested, it was stated that if the
chief of police had been armed with a revolver and had used it against
the accused, the act of the chief of police under those circumstances
would have been fully justified.
The reason for this is that it is the duty of peace officers to ar-
rest violators of the law not only when they are provided with the
corresponding warrant of arrest but also when they are not provided
with said warrant if the violation is committed in their own presence;
and this duty extends even to cases the purpose of which is merely to
prevent a crime about to be consummated. (U.S. vs. 1 Phil.
47; U.S. vs. Resaba, 1 Phil. 311; U.S. vs. Vallejo, 11 Phil. 193; U.S.
vs. Santos, 36 Phil. 853)

207
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
But shooting a thief who refused to be arrested is not
A security guard accosted a thief who had stolen ore in the tun-
nel of a mining company. The thief tried to flee. The security guard
ordered him to stop, but the latter disregarded the order. The security
guard fired four shots into the air with his carbine to scare the thief
and to stop him. As the thief continued to flee, saying that he would
not stop even if he died, the security guard fired a fifth shot directed
at the leg of the thief, but the bullet hit him in the lumbar region.
The thief died.
Held: The security guard acted in the performance of his duty,
but he exceeded the fulfillment of his duty by shooting the deceased.
He was adjudged guilty of homicide. (People vs. Bentres, C.A., 49
O.G. 4919)
In the case People vs. Oanis, supra, it was held that although
an officer in making a lawful arrest is justified in using such force as
is reasonably necessary to secure and detain the offender, overcome
his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm, yet he is never justified in
using unnecessary force or in treating him with wanton violence, or
in resorting to dangerous means when the arrest could be effected
otherwise. (6 par. 13, p. 612) The doctrine is restated in the
Rules of Court thus: "No violence or unnecessary force shall be used
in making an arrest, and the person arrested shall not be subject to
any greater restraint than is necessary for his detention." (Rule 113,
Sec. 2, par. 2)

Legitimate performance of duty.

When the victim without apparent reason, but probably due
to drunkenness, fired his gun several times at the Vista Club,
the accused and his partner had to intervene for they were with the
They would have been remiss in their duty if they did not. True,
the deceased companion of the accused shot the victim who died as a
result. But it would be doing injustice to a deceased agent of the law
who cannot now defend himself to state that when he approached the
trouble making victim he had a preconceived notion to kill. It must be
presumed that he acted pursuant to law when he tried to discharge his
duty as an NBI agent and that the killing of the victim was justified
under the circumstances. The same is true for the accused. (People
vs. Cabrera, No. Oct. 28, 1980, 100 SCRA 424, 431)

208
 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
Illegal performance of duty.
The defense of fulfillment of a duty does not avail. The attitude
adopted by the deceased in putting his hands in his pocket is not
sufficient to justify the accused to shoot him. The deceased was
unarmed and the accused could have first warned him, as the latter
was coming towards him, to stop where he was, raise his hands, or do
the things a policeman is trained to do, instead of mercilessly shooting
him upon a mere suspicion that the deceased was armed. (People vs.
Tan, No. L-22697, Oct. 5, 1976, 73 SCRA 288, 292-293)

We find the requisites absent in the case at bar. Appellant was

not in the of his duties at the time of the shooting for the
reason that the girls he was attempting to arrest were not committing
any act of prostitution in his presence. If at all, the only person he was
authorized to arrest that time was Roberto Reyes, who offered
him the services of a prostitute, for acts of vagrancy. Even then, the
fatal injuries that the appellant caused the victim were not a necessary
consequence of appelant's performance of his duty as a police officer.
The record shows that appellant shot the victim not once but twice after
a heated confrontation ensued between them. His duty to arrest the
female suspects did not include any right to shoot the victim to death.
(People vs. Peralta, G.R. No. 128116, January 24, 2001)

Distinguished from self-defense and from consequence of

felonious act.
Fulfillment of duty to prevent the escape of a prisoner is different
from self-defense, because they are based on different principles.
In the case of People us. Delima, supra, the prisoner who attacked
the policeman with "a stroke of his lance" was already running away
when he was shot, and, hence, the unlawful aggression had already
ceased to exist; but the killing was done in the performance of a duty.
The rule of self-defense does not apply.
The public officer acting in the fulfillment of a duty may appear
to be an aggressor but his aggression is not unlawful, it being neces-
sary to fulfill his duty.
Thus, when the guard levelled his gun at the escaping prisoner
and the prisoner grabbed the muzzle of the gun and, in the struggle
for the possession of the gun, the guard jerked away the gun from the
hold of the prisoner, causing the latter to be thrown halfway around,
and because of the force of the pull, the guard's finger squeezed the

209
Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
trigger, causing it to fire, hitting and killing the prisoner, the guard
was acting in the fulfillment of duty. (People vs. Bisa, C.A., 51 O.G.
4091)
In either case, if the accused were a private person, not in the
performance of a duty, the result would be different. In the first
case, there would be no self-defense because there is no unlawful
aggression. In the second case, the one pointing the gun at another
would be committing a (grave threat under Art. 282)
For instance, A levelled his gun at B, threatening the latter
with death. B grabbed the muzzle of the gun and in the struggle for
the possession of the gun, A squeezed the trigger causing it to fire,
hitting and killing B. In this case, A is criminally liable under Art.
4, par. 1, in relation to Art. 282 and Art. 249.

Lawful exercise of right or office.

Of right.
Under the Civil Code (Art. 429), the owner or lawful possessor
of a thing has the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use such force as may
be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property.
If in protecting his possession of the property he injured (not
seriously) the one trying to get it from him, he is justified under this
paragraph.

Under this paragraph (lawful exercise of a right), it is not

necessary that there be unlawful aggression against the person
charged with the protection of the property. If there is unlawful
aggression against the person charged with the protection of the
property, then paragraph 1 of Art. applies, it being a defense of
right to property.

Doctrine of "self-help" under Art. 429, Civil Code, applied

in Criminal Law.

People vs. Depante

58 O.G. 926)
Facts: At about 9 o'clock in the morning of December 29, 1958,
while Mariano Depante was in a Chinese store, Paciencia Iquiran, his

210
 JUSTIFYING CIRCUMSTANCES Art. 11
Fulfillment of Duty or Lawful Par. 5
Exercise of Right or Office
saw him holding a five-peso bill in his left hand. Mariano had
just bought a package of cigarettes and the five-peso bill he was holding
was part of the change he had just received from the storekeeper.
Paciencia, who was in a bad mood because Mariano had not given her
support for sometime, approached him and after uttering insulting
words, grabbed the five-peso bill from Mariano's hand. When he acted
to recover the same, she grabbed his shirt, tearing the same. Mariano
gave her fist blows on the forehead, on the right side of the head and
on the middle part of her left arm, knocking her down. He was able to
regain possession of the five-peso bill.
Was the act of Paciencia in grabbing the five-peso bill an actual
or threatened unlawful physical invasion or usurpation of Mariano
Depante's property? We find that it was. More than that, the act could
be attempted robbery. The fact that Paciencia was a querida and that
Mariano had not supported her for sometime was not an exempting
or justifying circumstance. Robbery can even be committed by a wife
against her husband. Only theft, swindling and malicious mishief can-
not be committed by a wife against her husband. (Art. 332, Revised
Penal Code)
Did Mariano use such force as was reasonably necessary to re-
pel or prevent the actual or threatened unlawful physical invasion or
usurpation of his property? On this point, we find that he cannot claim
full justification, for the three fist blows which rendered Paciencia
unconscious for sometime were not reasonable, considering the sex of
the complainant. Hence, appellant is criminally liable. However, his
criminal liability may be mitigated under Article 69 of the Revised
Penal Code.
Held: The requisites mentioned in Art. 429, Civil Code, in relation
to Art. 11, paragraph 5, Revised Penal Code, to justify the act not being
all present, a penalty lower by one or two degrees than that prescribed
by law may be imposed.

The actual invasion of property may consist of a mere

distur- bance of possession or a real dispossession.
If it is mere disturbance of possession, force may be used against
it at any time as long as it continues, even beyond the prescriptive
period for an action of forcible entry. Thus, if a ditch is opened by
Pedro in the land of Juan, the latter may close it or cover it by force
at any time.
If the invasion, however, consists of a real dispossession, force
to regain possession can be used only immediately after the dispos-

211
 Art. 11 JUSTIFYING CIRCUMSTANCES
Par. 6 Obedience to an Order Issued for
Some Lawful Purpose
session. Thus, if Juan, without the permission of Pedro, picks up a
book belonging to the latter and runs off with it, Pedro can pursue
Juan and recover the book by force.
If the property is immovable, there should be no delay in the
use of force to recover it; a delay, even if excusable, such as when due
to the ignorance of the dispossession, will bar the right to the use of
force. Once the usurper's possession has become firm by the lapse of
time, the lawful possessor must resort to the competent authority
to recover his property. (Tolentino's comment on Article 429 of the
new Civil Code, Vol. II, p. 54, citing 3-1 and Wolff
92-93)

Of right
The exercise of a statutory right to suspend installment pay-
ments under Section 23 of P.D. 957 is a valid defense against the
purported violations of 22 that petitioner is charged with.
Petitioner's exercise of the right of a buyer under Article 23 of P.D.
No. 957 is a valid defense to the charges against him. (Sycip vs. Court
of Appeals, G.R. No. 125059, March 17, 2000)

office.
The executioner of the Bilibid Prison cannot be held liable for
murder for the execution by him because he was merely
acting in the lawful exercise of his office. (Guevara)
A surgeon who amputated the leg of a patient to save him from
gangrene is not liable for the crime of mutilation, because he was
acting in the lawful exercise of his office.

Par. 6. - OBEDIENCE TO AN ORDER ISSUED FOR SOME

LAWFUL PURPOSE.

Any person who acts in obedience to an order issued by a

superior for some lawful purpose.

Requisites:
1. That an order has been issued by a superior.
2. That such order must be for some lawful purpose.

212
 JUSTIFYING CIRCUMSTANCES Art. 11
Obedience to an Order Issued for Par. 6
Some Lawful Purpose
3. That the means used by the subordinate to carry out said
order is lawful.

Both the person who gives the order and the person who executes
it, must be acting within the limitations prescribed by law. (People
vs. Wilson and Dolores, 52 Phil. 919)

Example of absence of the third requisite.

The court ordered that the convict should be executed on a

certain date. The executioner put him to death on a day earlier than
the date fixed by the court.

The execution of the convict, although by virtue of a lawful

order of the court, was carried out against the provision of Art. 82.
The executioner is guilty of murder.

When the order is not for a lawful purpose, the subordinate

who obeyed it is criminally liable.
(1) One who prepared a falsified document with full knowledge of
its falsity is not excused even if he merely acted in obedience to
the instruction of his superior, because the instruction was not
for a lawful purpose. (People vs. Barroga, 54 Phil. 247)
(2) A soldier who, in obedience to the order of his sergeant, tortured
to death the deceased for bringing a kind of fish different from
that he had been asked to furnish a constabulary detachment, is
criminally liable. Obedience to an order of a superior is justified
only when the order is for some lawful purpose. The order to
torture the deceased was illegal, and the accused was not bound
to obey it. (People vs. Margen, et 85 Phil. 839)

The subordinate is not liable for carrying out an illegal

order of his superior, if he is not aware of the illegality of
the order and he is not negligent.
When the accused acted upon orders of superior officers, which
he, as military subordinate, could not question, and obeyed the orders
in good faith, without being aware of their illegality, without any fault
or negligence on his part, he is not liable because he had no criminal
intent and he was not negligent. (People vs. Beronilla, 96 Phil. 566)

213
 Art. 12 EXEMPTING CIRCUMSTANCES
Imbecility or Insanity

II. Exemptin g circumstances

. 1. Defi n i ti on

Exempting circumstances are those

grounds for exemption from punishment because there is
wanting in the agent of the crime any of the conditions
which make the act voluntary or negligent.
2. Ba si s
The exemption from punishment is based on the com-
plete absence of intelligence, freedom of action, or intent, or
on the absence of negligence on the part of the accused.
Under the Revised Penal a person must act with
malice or negligence to be criminally liable. One who acts
without intelligence, freedom of action or intent does not
act with malice. On the other hand, one who acts without
intelligence, freedom of action or fault does not act with
negligence.

Art. 12. Circumstances which exempt from criminal liability.

— Th e f o l l o w i n g ar e e x e m p t fro m c r i m i n a l liability:
1 . A n i m b e c i l e o r a n i n s a n e p e r s o n , u n l e s s th e l a tt e
r ha s a ct e d d u r i n g a lu ci d i n t er va l .
Whe n th e i m b e c i l e o r a n i n s a n e p e r s o n ha s c o m m i t t e
d an ac t w h i c h th e la w d efi n e s as a f el on y (delito), th e co u r
t ord e r hi s c o n f i n e m e n t i n on e o f th e h o s p i t a l s o r
a s y l u m s e s t a b l i s h e d for p e r s o n s th u s afflicted, w h i c h h e shall
no t b e p e r m i t t e d t o l e av e w i t h o u t first o b t a i n i n g th e
p e r m i s s i o n o f th e sam e cou rt .

2. A p e r s o n u n d e r ni n e y e a r s of
3 . A p e r s o n ove r n i n e y e a r s o f ag e an d u n d e r f i f te en ,
u n l e s s h e ha s a c t e d wi t h d i s c e r n m e n t , i n w h i c h case , su c h
m i n o r sh al l b e p r o c e e d e d a g a i n s t i n a c c o r d a n c e w i t h th e
p r o v i s i o n s of Arti cl e 80 of thi s Code .

child fifteen years of age or under is exempt from criminal liability under
Rep. Act No. 9344 (Juvenile Justice and Welfare Act of 2006).

214
 EXEMPTING CIRCUMSTANCES
Art. 12
Imbecility or Insanity
Par. 1

Whe n su c h m i n o r i s a d j u d g e d b e c r i m i n a l l y i rresp on si -
ble, th e cou rt, i n c o n f o r m i t y wi t h th e p r o v i s i o n s o f thi s an d th
e p r e c e d i n g p a r a g r a p h , shall c o m m i t hi m t o car e an d
cu stod y o f hi s fami l y wh o shal l b e c h a r g e d wi t h hi s
s u r v e i l l a n c e an d e d u c a t i o n ; o t h e r w i s e , h e sh al l b e c o m m i t t e
d t o th e car e o f som e i n s t i t u t i o n o r p e r s o n m e n t i o n e d i n sai
d Arti cl e

4 . An y p e r s o n w h o , w h i l e p e r f o r m i n g a l awfu l ac t w i t h
du e care , c a u s e s a n i n ju r y b y m e r e a c c i d e n t w i t h o u t fault o r
i n t e n t i o n o f c a u s i n g it.

5 . An y p e r s o n wh o act s u n d e r th e c o m p u l s i o n o f a n
i r r e s i s t i b l e force.
6 . An y p e r s o n wh o act s u n d e r th e i m p u l s e o f a n u n con -
t r o l l a b l e fea r o f a n eq u a l o r g r e a t e r in ju ry.
7 . An y p e r s o n wh o fails t o p e r f o r m a n act r e q u i r e d b y
law , w h e n p r e v e n t e d b y s om e l awfu l o r i n s u p e r a b l e cau se .

In exempting circumstances, there is a crime committed but

no criminal liability arises.
Technically, one who acts by virtue of any of the exempting
circumstances commits a crime, although by the complete absence of
any the conditions which constitute free will or voluntariness of the
act, no criminal liability arise. (Guevara)

Burden of proof.
Any of the circumstances mentioned in Art. 12 is a matter of
defense and the same must be proved by the defendant to the satis-
faction of the court.

Par. 1 — An imbecile or an insane person, unless the latter has

acted during a lucid interval.

Imbecility distinguished from insanity.

This paragraph establishes the distinction between imbecility
and insanity, because while the imbecile is exempt in all cases from

repealed by Rep. Act No. 9344 (Juvenile Justice and Welfare Act
215
of 2006). See explanations,

216
 Art. 12 EXEMPTING CIRCUMSTANCES
Par. 1 Imbecility or Insanity

criminal liability, the insane is not so exempt if it can be shown that

he acted during a lucid interval.
During lucid interval, the insane acts with intelligence.
An imbecile is one who, while advanced in age, has a mental
development comparable to that of children between two and seven
years of age.
An imbecile within the meaning of Art. is one who is deprived
completely of reason or discernment and freedom of the will at the
time of committing the crime. (People vs. No. L-52688, Oct.
17, 1980, 100 SCRA 325, 333, citing People vs. 87 Phil.
658, 660)

To constitute insanity, there must be complete deprivation

of intelligence or that there be a total deprivation of the
freedom of the will.
The Supreme Court of Spain held that in order that the
exempting circumstance of insanity may be taken into account, it is
necessary that there be a complete deprivation of intelligence while
committing the act, that is, that the accused be deprived of reason;
that he acts without the least discernment; or that there be a total
deprivation of of the will. (People vs. Formigones, 87 Phil.

Insanity exists when there is a complete deprivation of intel-

ligence in committing the act, that is, the accused is deprived of
reason, he acts without the least discernment, because there is a
complete absence of the power to discern, or that there is a total dep-
rivation of freedom of the will. (People vs. Puno, No. June
29, 1981, 105 SCRA 151, 158-159, citing earlier cases. Also, People
vs. Magallano, No. L-32978, Oct, 30, 1980, 100 SCRA 570, 578-579)

Thus, mere abnormality of mental faculties is not enough, espe-

cially if the offender has not lost consciousness of his acts. At most, it
is only a mitigating circumstance. (Art. 13, par. 9)

Procedure when the imbecile or the insane committed a

felony.
The court shall order his confinement in one of the hospitals
or asylums established for persons afflicted, which he shall not be
217
 EXEMPTING CIRCUMSTANCES
Art. 12
Imbecility or Insanity
Par. 1

permitted to leave without first obtaining the permission of the

court.
But the court has no power to permit the insane person to leave
the without first obtaining the opinion of the Director of Health
that he may be released without danger. (Chin Ah Foo vs.
54 Phil. 775)

Who has the burden of proof to show insanity?

The defense must prove that the accused was insane at the time
of the commission of the crime, because the presumption is always
in favor of sanity. (People vs. Bascos, 44 Phil. 204, 206)

Sanity being the normal condition of the human mind, the

prosecution may proceed upon the presumption that the accused was
sane and responsible when the act was committed. The presumption
is always in favor of sanity and the burden of proof of insanity is on
the defense. (People vs. Aquino, G.R. No. 87084 , June 27, 1990, 186
SCRA 858, citing cases)

How much evidence is necessary to overthrow the presump-

tion of sanity?
The wife of the accused and his cousin testified that the accused
had been more or less continuously out of his mind for many years.
The assi stan t district health officer who, by order of the court,
examined the accused found that the accused was a violent maniac.
The physician expressed the opinion that the accused was probably
insane when he killed the deceased. The total lack of motive on the
part of the accused to kill the deceased bears out the assumption that
the former was insane. (People vs. Bascos, supra)
In order to ascertain a person's mental condition at the time of
the act, it is permissible to receive evidence of the condition of his
mind during a reasonable period both before and after that time.
Direct testimony is not required, nor are specific acts of derangement
essential to establish insanity as a defense. Mind can be known only
by outward acts. Thereby, we read the thoughts, the motives and
emotions of a person and come to determine whether his acts conform
to the practice of people of sound mind. To prove insanity, therefore,
circumstantial evidence, if clear and convincing, will suffice. (People
vs. Bonoan, 64 Phil. 93)
218
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 1 Imbecility or Insanity

Insanity at the time of the commission of the felony

distin- guished from insanity at the time of the trial.
When a person was insane at the time of the commission of the
felony, he is exempt from criminal liability.
When he was sane at the time of the commission of the crime,
but he becomes insane at the time of the trial, he is liable criminally.
The trial, however, will be suspended until the mental capacity of the
accused be restored to afford him a fair trial.

Evidence of insanity.
The evidence of insanity must refer to the time preceding the act
under prosecution or to the moment of its execution. If the evi-
dence points to insanity subsequent to the commission of the crime,
the accused cannot be acquitted. He is presumed to be sane when he
committed it. (U.S. vs. Guevara, 27 Phil. 547, 550; People vs. Fausto,
No. Dec. 30, 1961, 3 SCRA 863 , 866-867; People vs. Puno,
No. June 29, 1981, 105 SCRA 151, 158)

If the insanity is only occasional or intermittent in its nature,

the presumption of its continuance does not arise. He who relies on
such insanity proved at another time must prove its existence also at
the time of the commission of the offense. Where it is shown that the
defendant had lucid intervals, it will be presumed that the offense
was committed in one of them. But a person who has been adjudged
insane, or who has been committed to a hospital or to an asylum for
the insane, is presumed to continue to be insane. (People vs. Bonoan,
64 Phil. 87)

When defense of insanity is not credible.

Appellant himself testified that he was acting very sanely that
Monday morning, as shown by the fact that he went to the can-
teen in a jovial mood whistling, and tossing a coin in
his he saw persons inside the canteen x x x; he noticed
the arrival of Lira who banged his folders on the table, elbowed
him, and said in a loud voice: "ano he saw Lira put his right
hand inside his pocket and with the other hand pushed a chair
towards him; he became "confused" because he remembered that
Lira threatened to kill him if he would see him again; at this
point "he lost his senses" and regained it when he heard the voice
of Mrs. Tan saying: "Loreto, don't do and then he found

219
 EXEMPTING CIRCUMSTANCES
Art. 12
Imbecility or Insanity
Par. 1

out that he had wounded Lira. If appellant was able to recall all
those incidents, we cannot understand why his memory stood
still at that very crucial moment when he stabbed Lira to return
at the snap of the finger as it were, after he accomplished the
act of stabbing his victim. The defense of insanity is incredible.
(People vs. Renegado, No. May 57 SCRA 275,
286-287)

2) ) The accused knew that his wife was dead because he

was informed of her death. He said that his wife quarrelled
with him. She was irritable. He remembered that a week
before the incident he got wet while plowing. He fell asleep
without changing his clothes. He immediately surrendered
after the incident. He remembered that he rode on a tricycle.
During his confinement in jail he mopped the floor and cooked
food for his fellow prisoners. Sometimes, he worked in the
town plaza or was sent unescorted to buy food in the market.
He is not insane. (People vs. No. L-52688, Oct. 17,
1980, 100 SCRA 325,
330-331, 337)

3) Government psychiatric doctors who had closely observed the

accused for a month and a half found him in good contact with
his environment and that he did not manifest any odd behavior
for in fact he could relate the circumstances that led to his
confinement. He exhibited remorse for killing the victim, his
wife, and he voluntarily surrendered to the police headquarters
where he executed a statement confessing his misdeed. He was
coherent and intelligent. Before the killing, he was working for
a living through fishing three times a week and he himself fixed
the prices for his catch. The presumption of sanity has not been
overcome. (People vs. Magallano, No. L-32978, Oct. 30, 1980,
100 SCRA 570, 577-578)
The accused was afflicted with "schizophrenic reaction" but knew
what he was doing; he had psychosis, a slight destruction of the
ego; in spite of his "schizophrenic reaction," his symptoms were
"not socially incapacitating" and he could adjust to his environ-
ment. He could distinguish between right and wrong. He had
no delusions and he was not mentally deficient. The accused
was not legally insane when he killed the hapless and helpless
victim. (People vs. Puno, No. June SCRA
220
151, 156, 159)

221
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 1 Imbecility or Insanity

5) The mental illness of the accused was described as "organic

mental disorder with psychosis" but the doctor said that a
person suffering from insanity may know that what he is doing
is wrong. He also observed that the mental illness of the accused
came on and off. When interviewed upon his admission to the
mental institution, he recalled having taken 120 cc of cough
syrup and consumed about 3 sticks of marijuana before the
commission of the crime, an admission confirming his prior
extrajudicial confession. The presence of his reasoning faculties,
which enabled him to exercise sound judgment and satisfactorily
articulate the aforesaid matters, sufficiently discounts any
intimation of insanity of the accused when he committed the
dastardly felonies. (People vs. Aquino, G.R. No. 87084, June 27,
1990, 186 SCRA 851 , 862-863)

Dementia praecox is covered by the term insanity.

Thus, when a person is suffering from a form of psychosis, a type
dementia praecox, homicidal attack is common, because of delusions
that he is being interfered with sexually, or that his property is being
taken. During the period of excitement, such person has no control
whatever of his acts. (People vs. Bonoan, supra)
The unlawful act of the accused may be due to his mental disease
or a mental defect, producing an "irresistible impulse," as when the
accused has been deprived or has lost the power of his will which
would enable him to prevent himself from doing the act.
In the Bonoan case, supra, an irresistible homicidal impulse
was considered embraced in the term "insanity."

Schizophrenia, formerly called dementia praceox.

Medical books describe schizophrenia as a chronic mental
disorder characterized by inability to distinguish between fantasy
and reality and often accompanied by hallucinations and delusions.
Fo rm er l y cal l ed dementia pracecox, it is the mos t commo n
form of psychosis. (People vs. 145 SCRA 451 (1986 )
Symptomatically, schizophrenic reactions are recognizable through
odd and bizarre behavior apparent in aloofness or periods of impulsive
destructiveness and immature and exaggerated emotionality, often
ambivalently directed. The interpersonal perceptions are distorted in
the more serious states by delusions and hallucinations. In the most

222
 EXEMPTING CIRCUMSTANCES
Art. 12
Imbecility or Insanity
Par. 1

disorganized form of schizophrenic living, withdrawal into a fantasy

life takes place and is associated with serious thought disorder and
profound habit deterioration in which the usual social customs are
disregarded. During the initial stage, the common early symptom is
aloofness, a withdrawal behind barriers of loneliness, hopelessness,
hatred and fear. Frequently, the patient would seem preoccupied
and dreamy and may appear "faraway." He does not empathize
with the feelings of others and manifests little concern about the
realities of life situations. The schizophrenic suffers from a feeling
of rejection and an intolerable lack of self-respect. He withdraws
from emotional involvement with other people to protect himself
from painful relationships. There is shallowness of affect, a paucity
of emotional responsiveness and a loss of spontaneity. Frequently,
he becomes neglectful of personal care and cleanliness.A variety of
subjective experiences, associated with or influenced by mounting
anxiety and fears precede the earliest behavioral changes and oddities.
He becomes aware of increasing tension and confusion and becomes
distracted in conversation manifested by his inability to maintain a
train of thought in his conversations. Outwardly, this will be noticed
as blocks or breaks in conversations. The schizophrenic may not speak
or respond appropriately to his companions. He may look fixedly
away, or he may appear to stare, as he does not regularly blink his
eyes in his attempt to hold his attention. (People vs. Madarang, G.R.
No. 132319, May 12, 2000)

Kleptomania.
If the accused appears to have been suffering from kleptomania
when he committed the crime of theft, how shall we regard his
abnormal, persistent impulse or tendency to steal? Is it an exempting
circumstance or only a mitigating circumstance?
The courts in the United States have conflicting opinions. Some
believe that it is an exempting circumstance. Others believe that it
is only a mitigating circumstance.
In this jurisdiction, the question has not been brought before
the court for its determination.
The case of a person suffering from kleptomania must be
investigated by competent alienist or psychiatrist to determine
whether the impulse to steal is irresistible or not. If the unlawful act of
the accused is due "to his mental disease or a mental defect, producing
223
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 1 Imbecility or Insanity

an irresistible as when the accused has been deprived or has

lost the power of his will which would enable him to prevent himself
from doing the the irresistible impulse, even to take another's
property, should be considered as covered by the term "insanity." In
the case of People vs. Bonoan, 64 Phil. 87, an irresistible homicidal
impulse was considered embraced in the term "insanity." It may be
said that a person who has lost the power of his will, at the moment,
also lost consciousness of his acts.
On the other hand, if the mental disease or mental defect of the
accused only diminishes the exercise of his will-power, and did not
deprive him of the consciousness of his acts, then kleptomania, if it be
the result of his mental disease or mental defect, is only a mitigating
circumstance.

Epilepsy may be covered by the term

Epilepsy is a chronic nervous disease characterized by fits,
occurring at intervals, attended by convulsive motions of the muscles
and loss of consciousness. Where the accused claimed that he was an
epileptic but it was not shown that he was under the influence of an
epileptic fit when he committed the offense, he is not exempt from
criminal liability. (People vs. Mancao and Aguilar, 49 Phil. 887)

Feeblemindedness is not imbecility.

In the case of People vs. Formigones, supra, it was held that
feeblemindedness is not exempting, because the offender could
distinguish right from wrong. An imbecile or an insane cannot
distinguish right from wrong.

Pedophilia is not insanity.

The doctor's testimony, however, did not help accused's case
because although he admitted having initially categorized accused
as insane, the doctor eventually diagnosed accused to be afflicted
with pedophilia, a mental disorder not synonymous with insanity. He
explained that pedophilia is a sexual disorder wherein the has
strong, recurrent and uncontrollable sexual and physical fantasies
about children which he tries to fulfill, especially when there are
no people around. He claimed, however, that despite his affliction,
the subject could distinguish between right and wrong. In fact, he

224
 EXEMPTING CIRCUMSTANCES
Art. 12
Imbecility or Insanity
Par. 1

maintained that pedophilia could be committed without necessarily

killing the victim although injuries might be inflicted on the victim
in an effort to repel any resistance. (People vs. Diaz, G.R. No.
Dec.

Amnesia is not proof of mental condition of the accused.

Amnesia, in and of itself, is no defense to a criminal charge
unless it is shown by competent proof that the accused did not know
the nature and quality of his action and that it was wrong. Failure to
remember is in itself no proof of the mental condition of the accused
when the crime was performed. (People vs. No. 125334,
Jan. 28, 1998)

Other cases of lack of intelligence.

Committing a crime while in a dream.
One who, while sleeping, suddenly got up, got a bolo,
and upon meeting his wife who tried to stop him, wounded
her and also attacked other persons, is not criminally liable,
it appearing that the act was committed while in a dream.
(People vs. Taneo, 58 Phil. 255) The act was done without
criminal intent.
Somnambulism or sleepwalking, where the acts of the
person afflicted are automatic, is embraced in the plea of
insanity and must be clearly proven. (People vs.
55 Phil. 604)
In the case of U.S. us. Odicta, 4 Phil. 309, it was
held that the case of the somnambulist falls under the
rule that a person is not criminally liable if his acts are
not voluntary. The ruling in the case of People vs. Gimena
and that in the case of U.S. vs. Odicta are not inconsist-
ent. The act of a person is not voluntary when he does not
have intelligence and intent while doing the act.
a. Hypnotism. Whether or not hypnotism is so effective
as to make the subject act during artificial somnam-
bulism, is still a debatable question. (Albert)
2. Committing a crime while suffering from malignant
malaria.
225
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 2 Minor Under Nine Years

Thus, one who was suffering from malignant malaria

when she wounded her husband who died as a consequence
is not criminally liable, because such illness affects the
nervous system and causes among others such complication
as acute melancholia and insanity at times. (People vs.
Lacena, 69 Phil. 350)

Basis of paragraph
The exempting circumstance of insanity or imbecility is based
on the complete absence of intelligence, an element of voluntari-
ness.

Par. 2. — A person under nine years of age.

"Under nine years" to be construed "nine years or less."

The phrase "under nine years" should be construed "nine years or
as may be inferred from the next subsequent paragraph which
does not totally exempt a person "over nine years of age" if he acted
with discernment. (Guevara; See Art. 189, P.D. No. 603)

Age of absolute irresponsibility raised to fifteen years of

age.
Republic Act No. 9344 otherwise known as "Juvenile Justice
and Welfare Act of 2006" raised the age of absolute irresponsibility
from nine (9) to fifteen years of age.
Under Section 6 of the said law, a child fifteen (15) years of
age or under at the time of the commission of the offense shall be
exempt from criminal liability. However, the child shall be subject
to an intervention program as provided under Section 20 of the same
law.

Basis of paragraph 2.
The exempting circumstance of minority is based also on the
complete absence of

226
 EXEMPTING CIRCUMSTANCES Art. 12
Minor Over Nine and Under Fifteen Years Par. 3

Par. 3. — A person over nine years of age and under fifteen,

unless he has acted with discernment, in which case,
such minor shall be proceeded against in accordance
with the provisions of Article 80 of this Code.

Paragraph 3, Article RPC impliedly repealed by

Republic Act No. 9344.
Paragraph 3, Article 12 of the Revised Penal Code is deemed
repealed by the provision of Republic Act 9344 declaring a child fifteen
years of age or under exempt from criminal liability. The law provides
thus:
"Section 6. Minimum Age of Criminal Responsibility.
— A child fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from criminal liability.
However, the child shall be subject to an intervention program
pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18)
years of age shall likewise be exempt from criminal liability
and be subjected to an intervention program, unless he/she
has acted with discernment, in which case, such child shall be
subject to the appropriate proceedings in accordance with this
Act.
The exemption from criminal liability herein established
does not include exemption from civil liability, which shall be
enforce in accordance with existing laws."

Children above fifteen but below eighteen years of age

who acted without discernment exempt from criminal liability.
A minor under eighteen but above fifteen must have
acted with discernment to incur criminal liability. The minor is
presumed to have acted without discernment since the phrase
"unless he/she acted with discernment" indicates an exception to the
general rule that a minor under 18 but above 15 has acted without
discernment.
Thus, it is incumbent upon the prosecution to prove that a
minor who is over 15 but under 18 years of age has acted with
discernment, in order for the minor not to be entitled to this exempting
circumstance.

227
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 3 Minor Over Nine and Under Fifteen Years

Periods of criminal responsibility

Thus, under the Code as amended by Republic Act No. 9344
(Juvenile Justice and Welfare Act of 2006), the life of a human being
is divided into four periods:
The age of absolute irresponsibility — 9 years and below
(infancy).
(2) The age conditional responsibility — between 9 and 15
years.
(3) The age full responsibility — 18 or over (adolescence) to
70 (maturity).
(4) The age of mitigated responsibility — over 9 and under 15,
offender acting with discernment; 15 or over but less than
18; over 70 years of age.
Hence, senility which is the age over 70 years, although said to
be the second childhood, is only a mitigated responsibility. It cannot
be considered as similar to infancy which is exempting.

Meaning of "discernment."
The discernment that constitutes an exception to the exemption
from criminal liability of a minor under fifteen years of age but over
nine, who commits an act prohibited by law, is his mental capacity to
understand the difference between right and wrong, and such capacity
may be known and should be determined by taking into consideration
all the facts and circumstances afforded by the records in each case,
the very appearance, the very attitude, the very comportment and
behaviour of said minor, not only before and during the commission of
the act, but also after and even during the trial. (People vs.
68 Phil. 580, 583; Guevarra vs. G.R. No. 75256, Jan. 26,
1989, 169 476, 481)

Discernment and Intent distinguished.

The terms "intent" and "discernment" convey two distinct
thoughts. While both are products of the mental processes within a
person, refers to the desired act of the person while
ment" relates to the moral significance that a person ascribes to the
said act. Hence, a person may not intend to shoot another but may be

228
 EXEMPTING CIRCUMSTANCES Art. 12
Minor Over Nine and Under Fifteen Years Par. 3

aware of the consequences of his negligent act which may cause injury
to the same person in negligently handling an air rifle. (Guevara vs.
supra, at 481)

Discernment may be shown by the manner the crime

was committed, or (2) the conduct of the offender after its
com- mission.
1. Manner of committing the crime.

Thus, when the minor committed the crime during

nighttime to avoid detection or took the loot to another town
to avoid discovery, he manifested discernment. (People vs.
Magsino, G.R. No. 40176, May 3, 1934)
2. Conduct of offender.

The accused, years old (disregard age: Case cited

to illustrate discernment of a minor) shot the offended
party, who had caught him shooting at the latter's mango
fruits, with a slingshot hitting the latter in one of his eyes,
and after having done so said: "Putang ina mo,
mo." It was held that the first part of the remark
clearly manifested the perverted character of the accused
and the second part reflected his satisfaction and elation
upon the accomplishment of his criminal act. These facts
indicate discernment on the part of the minor. (People vs.
Alcabao, C.A., 44 O.G. 5006)

Facts from which age is presumed must be stated for the

record.
The officer or court called upon to make a finding as to the
age of the accused should state in the record, not merely a general
statement of the personal appearance of the accused, but the par-
ticular fact or facts concerning personal appearance which lead such
officer or court to believe that his age was as stated by said officer
or court.
It would seem that this provision presupposes that the minor
committed the crime, but that the court finds that he acted without
discernment.

229
 Art. 12 EXEMPTING CIRCUMSTANCES
Par. 3 Minor Over Nine and Under Fifteen Years

Determination of Age.
The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with
the law until is proven to be eighteen years old or older.
The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent documents. In the absence
of these documents, age may be based on information from the child
himself/herself, testimonies of other persons, the physical appearance
of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict with the law
prior to the filing of the information in any appropriate court may file a
case in a summary proceeding for the determination of age before the
Family Court which shall decide the case within twenty-four (24) hours
from receipt of the appropriate pleadings of all interested parties.
If a case has been filed against the child in conflict with the law
and is pending in the appropriate court, the person shall file a motion
to determine the age of the child in the same court where the case
is pending. Pending hearing on the said motion, proceedings on the
main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges
and other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law. (Sec. 7, Rep.
Act No. 9344)

The allegation of "with intent to kill" in the information is

allegation of discernment.
Where the information for homicide filed in the court of first
instance alleges "that said accused, with the intent to kill, did then
and there wilfully, criminally, and feloniously push one Lolita Padilla,
a child 8 1/2 years of age, into a deep place x x x and as a consequence
thereof Lolita got drowned and died right then and there," it is held
that the requirement that there should be an allegation that she acted
with discernment should be deemed amply met with the allegation in
the information that the accused acted "with the intent to kill." The
allegation clearly conveys the idea that she knew what would be the
consequence of her unlawful act of pushing her victim into deep water
and that she knew it to be wrong. (People vs. Neito, 103 Phil.

230
 EXEMPTING CIRCUMSTANCES
Art. 12
Accident
Par. 4

Basis of paragraph 3.
The exempting circumstance in paragraph 3 of Art. 12 is based
also on the complete absence of intelligence.

Par. 4. — Any person who, while performing a lawful act with

due care, causes an injury by mere accident without
fault or intention of causing it.

Elements:
A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;
4. Without fault or intention of causing it. (See People vs.
Vitug, 8 CAR [2s] 909)

The person must be performing a act.

While defending himself against the unjustified assault upon his
person made by his assailant, appellant Galacgac fired his revolver
at random, wounding two innocent persons.
Held: The discharge of a firearm in such a thickly populated place
in the City of Manila being prohibited and penalized by Article 155
of the Revised Penal Code, appellant Galacgac was not performing a
lawful act when he accidentally hit and wounded Marina Ramos and
Alfonso Ramos. Hence, the exempting circumstance provided for in
Article 12, paragraph 4, of the Revised Penal Code, cannot be properly
invoked by appellant Galacgac. (People vs. Galacgac, 54 O.G. 1027)

Striking another with a gun in self-defense, even if it and

seriously injured the assailant, is a lawful act.
When the defendant drew his gun and with it struck the
deceased after the latter had given him a fist blow on the shoulder,
the defendant was performing a lawful act. The striking with the
gun was a legitimate act of self-defense. But we might
the striking done with due care as required by the second element
for exemption? We believe so, since the striking could not have been
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 4 Accident

done in any other manner except how it was done so by the appellant.
Whether the gun was cocked or uncocked, the striking could not have
been done in any other manner. The injury, therefore, that resulted
from the firing of the gun was caused by accident and without any
fault or intention on the part of defendant in causing it, in accordance
with the 3rd and 4th requisites.

The trial court puts much stress on the fact that since the
appellant allegedly had his finger on the trigger with the gun already
cocked it was reckless and imprudent of him to have used the gun
in striking the deceased. We do not agree. Under the circumstances,
striking him, as was done here, and not shooting him, was the more
prudent and reasonable thing to do, whether the gun was cocked or
uncocked. (People vs. Vitug, 8 C.A. Rep. 905; People vs. Tiongco, C.A.,
63 O.G. 3610)
But the act of drawing a weapon in the course of a quarrel, not
being in self-defense, is is light threat (Art. 285, par. 1,
Rev. Penal Code), and there is no room for the invocation of accident as
a ground for exemption. (People vs. Reyta, Jr., 13 C.A. Rep. 1190)

The person performing a lawful act must do so with due

care, without fault or negligence.
Appellant claims exemption from criminal liability under Article
12, paragraph 4, of the Revised Penal Code which provides that any
person who, while performing a lawful act with due care, causes
an injury by mere accident without fault or intention of doing it is
exempted from criminal liability. But, this exempting circumstance
cannot be applied to the appellant because its application presupposes
that there is no fault or negligence on the part of the person performing
the lawful act with due care, whereas, in this case, the prosecution
had duly established that the appellant was guilty of negligence.
(People vs. San Juan, C.A., 65 O.G. 11264)

Examples of accident.

U.S. vs.
(15 Phil. 196)

Facts: The accused, while hunting, saw wild chickens and fired
a shot. The slug, after hitting a wild chicken, recoiled and struck the

230
 EXEMPTING CIRCUMSTANCES
Art. 12
Accident
Par. 4

tenant who was a relative of the accused. The man who was injured
died.
Held: If life is taken by misfortune or accident while the actor is
in the performance of a lawful act executed with due care and without
intention of doing harm, there is no criminal liability.

There is no question that the accused was engaged in the

performance of a lawful act when the accident occurred. He was not
negligent or at fault, because the deceased was not in the direction
at which the accused fired his gun. It was not foreseeable that the
slug would recoil after hitting the wild chicken.
A chauffeur, while driving his automobile on the proper side of
the road at a moderate speed and with due diligence, suddenly and
unexpectedly saw a man in front of his vehicle coming from the
walk and crossing the street without any warning that he would do
so. Because it was not physically possible to avoid hitting him, the
said chauffeur ran over the man with his car. It was held that he was
not criminally liable, it being a mere accident. (U.S. vs. Tayongtong,
21 Phil. 476)

Just as the truck then being driven by the accused was passing
the slow-moving road roller, a boy about 10 or 12 years of age jumped
from the step of the side board of the road roller directly in front of
the truck, and was knocked down, ran over and instantly killed. The
accused was acquitted of all criminal liability arising out of the un-
fortunate accident which resulted in the death of the boy. (U.S. vs.
Knight, 26 Phil. 216)

What is an accident?
An accident is something that happens outside the sway of our
will, and although it comes about through some act of our will, lies
beyond the bounds humanly foreseeable consequences.
If the consequences are plainly foreseeable, it will be a case of
negligence. (Albert)

Accident presupposes lack of intention to commit the wrong

done.
The exempting circumstance of Art. of the Revised Penal
Code refers to purely accidental cases where there was absolutely

231
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 4 Accident

no intention to commit the wrong done. It contemplates a situation

where a person is in the act of doing something legal, exercising due
care, diligence and prudence but in the process, produces harm or
injury to someone or something not in the least in the mind of the
actor — an accidental result flowing out of a legal act. (People vs.
Gatela, 17 CAE [2s] 1047, 1055)

Case of negligence, not accident.

As the two persons fighting paid him no attention, the defendant
drew a .45 caliber pistol and shot twice in the air. The bout continued,
however, so he fired another shot at the ground, but unfortunately the
bullet ricocheted and hit Eugenio Francisco, innocent bystander,
who died thereafter. Held: The mishap should be classed as homicide
through reckless imprudence. It is apparent the defendant wilfully
discharged his gun, without taking the precautions demanded by the
circumstances that the district was populated, and the likelihood that
his bullet would glance over the hard pavement of the thoroughfare.
(People vs. 77 Phil. 1018)

Comment: The consequence here was clearly foreseeable.

Accident and negligence, intrinsically contradictory.

In Jarco Marketing Corporation v. Court of Appeals, 321 SCRA
375 the Supreme Court held that an accident is a
circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human
agency, an event which under the circumstance is unusual or
unexpected by the person to whom it happens. Negligence, on the
other hand, is the failure to observe, for the protection of the interest
of another person, that degree of care, precaution and vigilance which
the circumstances justly demand without which such other person
suffers injury. Accident and negligence are intrinsically contradictory;
one cannot exist with the other. (People vs. G.R. No. 137347,
March 4, 2004)

The death of the deceased in this case was considered caused

by mere accident.
The accused was prosecuted for having killed her husband.
Explaining what took place, she said, in part: "When the door was
ajar my son went in, and then my husband pushed it and as I saw

232
 EXEMPTING CIRCUMSTANCES
Art. 12
Accident
Par. 4

that he was about to crush my son's head, I jabbed my husband with

the point of the umbrella downwards to prevent him from crushing
my son's head." We find nothing improbable in this statement and if
we add to this the absence of any reasonable motive to prompt said
defendant to injure her husband, we are compelled to conclude that
in thrusting her umbrella in the opening of the door in question, she
did so to free her son from the imminent danger of having his head
crushed or being strangled; and if she thus caused her husband's
injury, it was by a mere accident, without any fault or intention to
cause it. (People vs. Ayaya, 52 Phil. 354, 358)

When claim of accident not appreciated.

Repeated blows negate claim of wounding by mere accident.
(People vs. Taylaran, No. Oct. SCRA
373 , 376)

2 ) Accidental shooting is negated by th reaten i n g words

preceding it and still aiming the gun at the prostrate body of
the victim, instead of immediately helping him. (People vs.
Reyes, No. Feb. 27, 1976, 69 SCRA 474, 478)
Husband and wife had an altercation. The deceased husband
got a carbine and holding it by the muzzle raised it above
his right shoulder in an attempt to strike accused wife.
She side-stepped and grappled with him for the possession
of the gun and in the scuffle the gun went off, the bullet
- hitting her husband in the neck. So went the version of the
accused. Held: It was difficult, if not well-nigh impossible,
for her who was frail and shorter than her husband, who
was robust and taller, to have succeeded in taking hold
of the carbine, for if her husband was to strike her with
the butt of the carbine and she side-stepped, he would not
have continued to hold the carbine in a raised position.
Actual test during the trial showed that the carbine was
not defective and could not fire without pressing the trigger.
The absence of any powder burns at the entrance of the
wound in the body of the deceased is convincing proof that
he was shot from a distance, and not with the muzzle of
the gun almost resting on his shoulder or the back of the
neck. (People vs. Samson, No. March 29, 1963, 7
SCRA 478, 482-483)
233
Art. 12 EXEMPTING CIRCUMSTANCES
Par. 5 Irresistible Force

Basis of paragraph 4.
The exempting circumstance in paragraph 4 of Art. 12 is based
on lack of negligence and intent. Under this circumstance, a person
does not commit either an intentional felony or a culpable felony.

Par. 5. — Any person who acts under the compulsion of an

irresistible force.

This exempting circumstance presupposes that a person is

compelled by means of force or violence to commit a crime.

Elements:
1. That the compulsion is by means of physical force.
2. That the physical force must be irresistible.
3. That the physical force must come from a third person.
Before a force can be considered to be an irresistible one, it must
produce such an effect upon the individual that, in spite of all resist-
ance, it reduces him to a mere instrument and, as such, incapable of
committing a It must be such that, in spite of the resistance
of the person on whom it operates, it compels his members to act and
his mind to obey. Such a force can never consist in anything which
springs primarily from the man himself; it must be a force which acts
upon him from the outside and by a third person. (U.S. vs. Elicanal,
35 Phil. 209)

Example:
In the case of U.S. vs. Caballeros, et 4 Phil. 350, it
appears that Baculi, one of the accused who was not a member
of the band which murdered some American school-teachers, was
in a plantation gathering bananas. Upon hearing the shooting,
he ran. However, Baculi was seen by the leaders of the band
who called him, and striking him with the butts of their guns,
they compelled him to bury the bodies.
Held: Baculi was not criminally liable as accessory for
concealing the body of the crime (Art. 19) of murder committed

234
 EXEMPTING CIRCUMSTANCES
Art. 12
Irresistible Force
Par. 5

by the band, because Baculi acted under the compulsion of an

irresistible force.

No compulsion of irresistible force.

The pretension of an accused that he was threatened with a gun
by his friend, the mastermind, is not credible where he himself was
armed with a rifle. (People vs. Sarip, Nos. Feb. 28,
1979, 88 SCRA 666, 673-674)

Passion or obfuscation cannot be irresistible force.

The i rresi sti b l e force can never consist in an impulse or
passion, or It mus t consist of an extraneous force
coming from a third person. (Dec. of Sup. Ct. of Spain, March 15,
1876)

Basis of paragraph 5.
The exempting circumstance in paragraph 5 of Art. 12 is based
on the complete absence of freedom, an element of voluntariness.
A person who acts under the compulsion of an irresistible force,
like one who acts under the impulse of uncontrollable fear of equal
or greater injury, is exempt from criminal liability because he does
not act with freedom. (People vs. Loreno, No. July 9, 1984,
130 321)

Nature of force required.

The force must be irresistible to reduce the actor to a mere
instrument who acts not only without will but against his will.
The duress, force, fear or intimidation must be present, imminent
and impending and of such a nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act is not done.
A threat of future injury is not enough. The compulsion must be of
such a character as to leave no opportunity to the accused for escape
or self-defense in equal combat. (People vs. Loreno, No. L-54414, July
9, 1984, 130 SCRA 311 , 321-322, citing People vs. Villanueva, 104
Phil. 450)

235
 Art. 12 EXEMPTING CIRCUMSTANCES
Par. 6 Uncontrollable Fear

Par. 6. — Any person who acts under the impulse of an

uncontrollable fear of an equal or greater injury.

This exempting circumstance also presupposes that a person

is compelled to commit a crime by another, but the compulsion is by
means of intimidation or threat, not force or violence.

Elements:
1. That the threat which causes the fear is of an evil greater
than or at least equal to, that which he is required to com-
mit;
2. That it promises an evil of such gravity and imminence
that the ordinary man would have succumbed to it. (U.S.
vs. Elicanal, 35 Phil. 209, 212, 213)
For the exemptin g circumstance of uncontrollable fear to
be invoked successfully, the following requisites must concur: (a)
existence of an uncontrollable fear; (b) the fear must be real and
imminent; and (c) the fear of an injury is greater than or at least
equal to that committed. (People vs. Petenia, No. Aug. 12,
1986, 143 SCRA 361 , 369)

Illustration:
Exaltacion and Buenaventura Tanchinco were
compelled under fear of death to swear allegiance to the
Katipunan whose purpose was to overthrow the government by
force of
In this case, the accused cannot be held criminally liable
for rebellion, because they joined the rebels under the impulse
of an uncontrollable fear of an equal or greater injury. (U.S. vs.
Exaltacion, 3 Phil. 339)

The penalty for the crime which Exaltacion was required

to commit, is mayor, that is, imprisonment for a period of from
6 years and 1 day to 12 years, and fine. The act which he was asked to
commit was to swear allegiance to the Katipunan and become one of
those engaged in overthrowing the government by force of arms. If he
did not commit it, he would be killed. Death is a much greater injury
than imprisonment for 12 years and paying a fine.

236
 EXEMPTING CIRCUMSTANCES
Art. 12
Uncontrollable Fear
Par. 6

But if A had threatened to burn the house of B should the latter

not kill his (B's) father, and B killed his father for fear that A might
burn his (B's) house, B is not exempt from criminal liability for the
reason that the evil with which he was threatened was much less
than that of killing his father.

Nature of duress as a valid defense.

Duress as a valid defense should be based on real, imminent, or
reasonable fear for one's life or limb and should not be speculative,
fanciful, or remote fear. (People vs. No. L-22947, July
91 SCRA 340, 355, citing People vs. Quilloy, 88 Phil. 53)

The accused must not have opportunity for escape or self-

defense.
A threat future injury is not enough. The compulsion must
be of such a character as to leave no opportunity to the accused for
escape or self-defense in equal combat.
Duress is unavailing where the accused had every opportunity
to run away if he had wanted to or to resist any possible aggression
because he was also armed. (People vs. Palencia, No. L-38957, April
30, 1976, 71 SCRA 679, 690; People vs. Abanes, No. Sept.
28, 1976, 73 SCRA 44, 47)
Where the accused, who testified that he was intimidated into
committing the crime, had several opportunities of leaving gang
which had decided to kidnap the victim, his theory that he acted
under intimidation is untenable. (People vs. Parulan, 88 Phil. 615,
623)
Where the accused testified that he joined the band because he
was threatened by the leader thereof, but it appears that the leader
was armed with a revolver only, while the accused was armed with
a rifle, so that he could have resisted said leader, it was held that
the accused did not act under the impulse of an uncontrollable fear
of an equal or greater injury. (People vs. Vargas and Kamatoy, C.A.,
45 O.G. 1332)
As regards accused Domingo Golfeo, the evidence is clear that
it was he who first struck with the butt of his gun hitting him
on the side of his body, then gave him a fist blow on his stomach,

237
 Art. 12 EXEMPTING CIRCUMSTANCES
Par. 6 Uncontrollable Fear

and after he had been taken to a secluded place, it was he who

ordered Areza to lie down in the fashion adopted by the
during gloomy days of Japanese occupation and in that position
gave him a blow on the back of his neck which almost severed his
head from the body. His participation in the killing of Areza cannot
therefore be doubted. His only defense is that he did so in obedience
to the order of his commander, and because he acted under the
influence of uncontrollable fear, he should be exempt from criminal
responsibility.
This defense of Golfeo is clearly untenable not only because of
the well-settled rule that obedience to an order of a superior will only
justify an act which otherwise would be criminal when the order is
for a lawful purpose, but also because the circumstances under which
Golfeo participated in the torture and liquidation of Areza cannot
in any way justify his claim that he acted under an uncontrollable
fear of being punished by his superiors if he disobeyed their order.
In the first place, at the time of the killing, Golfeo was armed with
an automatic carbine such that he could have protected himself from
any retaliation on the part of his superiors if they should threaten
to punish him if he disobeyed their order to kill Areza. the second
place, the evidence shows that Areza was brought to a secluded place
quite far from that where his superiors were at the time and in such
a predicament, he and his companion Arsenal could have escaped
with Areza to avoid the ire of their superiors. The fact that he
out their order although his superiors were at some distance from
him and that without pity and compunction he struck his victim in a
Kempetai fashion shows that he acted on the matter not involuntarily
or under the pressure of fear or force, as he claims, but out of his own
free will and with the desire to collaborate with the criminal design
of his superiors. (People vs. Rogado, et 106 Phil. 816)

Command killers, as cause of uncontrollable fear.

Timoteo Montemayor was accused of murder, for having told his
two companions to fetch shovels and to dig a grave and for having
walked behind the Hukbalahap killers to the place of the execution of
the victim. It appears that the two Hukbalahaps were ruthless killers
and were then in a mood to inflict extreme and summary punishment
for disobedience to the command. The place was isolated, escape was
at least risky, and protection by lawfully constituted authorities was

238
 EXEMPTING CIRCUMSTANCES
Art. 12
Uncontrollable Fear Par. 6

out of reach. The accused was acquitted, for having acted under the
impulse of uncontrollable fear of an equal or greater injury. (People
vs. Regala, et G.R. No. May 28, 1951)

In treason.
In the eyes of the law, nothing will excuse that act of joining an
enemy, but the fear of immediate death. (People vs. Bagalawis, 78
Phil. 174, citing the case of Republica vs. 2 Law,
300, 301)
This ruling is similar to that in the Exaltacion case.

Speculative, fanciful and remote fear is not uncontrollable

fear.
The defendant ordered the deceased whose both hands were
tied at the back to kneel down with the head bent forward by the
side of the grave already prepared for him by order of said defendant.
Then, defendant hacked the head of the deceased with a Japanese
sabre and immediately kicked the prostrate body of the victim into
the grave.
When prosecuted for murder, the defendant claimed that he had
been ordered by Major Sasaki to kill the deceased. He also claimed
that he could not refuse to comply with that order, because the Japa-
nese officer made a threat.
Held: If the only evidence relating to a sort of a threat is the
testimony of the defendant: "As they insisted and I them that
I could not do it, then Captain Susuki told me, have to comply
with that order of Major Sasaki; otherwise, you have to come along
with that threat is not of such a serious character and imminence
as to create in the mind of the defendant an uncontrollable fear that
an equal or greater evil or injury would be inflicted upon him if he
did not comply with the alleged order to kill the deceased. (People vs.
Moreno, 77 Phil. 549)
Mere fear of a member of the Huk movement to disobey or refuse
to carry out orders of the organization, in the absence of actual
physical or moral compulsion to act, is not sufficient to exempt the
accused from criminal liability. (People vs. Fernando, No.
May 29, 1970, 33 SCRA 149, 157)

239
 Art. 12 EXEMPTING CIRCUMSTANCES
Par. 7 Prevented By Insuperable Cause

Real, imminent or reasonable fear.

The case of U.S. vs. Exaltacion, 3 Phil. 339, is the example. There
is here fear of immediate death.
A threat of future injury is not enough.
To appreciate duress as a valid defense, a threat of future injury
is not enough. It must be clearly shown that the compulsion must be
of such character as to leave no opportunity for the accused to escape.
(People vs. Palencia, No. L-38957, April 30, 1976, 71 SCRA 679, 690;
People vs. Abanes, No. L-30609, Sept. 28, 1976, 73 SCRA 44, 47)

Distinction between irresistible force and uncontrollable fear.

In irresistible force (par. 5), the offender uses violence or physical
force to compel another person to commit a crime; in uncontrollable
fear (par. 6), the offender employs intimidation or threat in compelling
another to commit a crime.

Basis of paragraph 6.
The exempting circumstance in paragraph 6 of Art. 12 is also
based on the complete absence of freedom.
me invito factus non est actus." ("An act done by me
against my will is not my

Par. 7. — Any person who fails to perform an act required by law,

when prevented by some lawful or insuperable cause.

Elements:
1. That an act is required by law to be done;
2. That a person fails to perform such act;
That his failure to perform such act was due to some lawful
or insuperable cause.

When prevented by some lawful cause.

Example:
A confessed to a Filipino priest that he and several other persons
were in conspiracy against the Government. Under Art. a Filipino

240
 EXEMPTING CIRCUMSTANCES
Art. 12
Prevented By Insuperable Cause
Par. 7

citizen who knows of such conspiracy must report the same to the
governor or fiscal of the province where he resides. If the priest does
not disclose and make known the same to the proper authority, he
is exempt from criminal liability, because under the law, the priest
cannot compelled to reveal any information which he came to know
by reason of the confession made to him in his professional capacity.
(Vide, Sec. 24[d], Rule 130, Rules of Court)

When prevented by some insuperable cause.

Examples:
The municipal president detained the offended party for
three days because to take him to the nearest justice of the
peace required a journey for three days by boat as there
was no other means of transportation. (U.S. vs. Vicentillo,
19 Phil. 118, 119)
Under the law, the person arrested must be delivered
to the nearest judicial authority at most within eighteen
hours (now thirty-six hours, Art. 125, Rev. Penal Code, as
amended); otherwise, the public officer will be liable for
arbitrary detention. The distance which required a journey for
three days was considered an insuperable cause. Hence, it was
held that the accused was exempt from criminal liability.
2. A mother who at the time of childbirth was overcome by
severe dizziness and extreme debility, and left the child in
a thicket where said child died, is not liable for infanticide,
because it was physically impossible for her to take home
the child. (People vs. Bandian, 63 Phil. 530, 534-535)
The severe dizziness and extreme debility of the
woman constitute an insuperable cause.

Basis of paragraph 7.
The circumstance in paragraph 7 of Art. exempts the accused
from criminal liability, because he acts without intent, the third
condition of voluntariness in intentional felony.

In all the exempting circumstances, intent is wanting in the

agent of the crime.
Intent presupposes the exercise of freedom and the use of intelli-
gence. Hence, in paragraphs 2 and 3 of Art. 12, the imbecile, insane,

241
Art. 12 ABSOLUTORY CAUSES

or minor, not having intelligence, does not act with intent. The person
acting under any of the circumstances mentioned in paragraphs 5 and
6 of Art. 12, not having freedom of action, does not act with intent. In
paragraph 4 of Art. 12, it is specifically stated that the actor causes
an injury by mere accident without intention of causing it.

Distinction between justifying and exempting circumstances.

(1) A person who acts by virtue of a justifying circumstance does
not transgress the law, that is, he does not commit any crime in
the eyes of the law, because there is nothing unlawful in the act
as well as in the intention of the actor. The act of such person
is in itself both just and lawful.
In justifying circumstances, there is neither a crime nor a crimi-
nal. No civil liability, except in par. 4 (causing damage to another in
state of necessity).
(2) In exempting circumstances, there is a crime but no criminal
liability. The act is not justified, but the actor is not criminally
liable. There is civil liability, except in pars. 4 and 7 (causing an
by mere accident; failing to perform an act required by law
when prevented by some lawful or insuperable cause) of Art. 12.
(See Art. 101 which does not mention pars. 4 and 7 of Art. 12)

Absolutory causes, defined.

Absolutory causes are those where the act committed is a crime
but for reasons of public policy and sentiment there is no penalty
imposed.

Other absolutory causes.

In addition to the justifying circumstances (Art. and the
exempting circumstances (Art. 12), there are other absolutory causes
in the following articles, to wit:
Art. 6. — The spontaneous desistance of the person who com-
menced the commission of a felony before he could perform all the
acts of execution.
Art. 20. — Accessories who are exempt from criminal liability.
— The penalties prescribed for accessories shall not be imposed
upon those who are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted brothers and sisters, or

242
 ABSOLUTORY CAUSES Art. 12

relatives by affinity within the same degrees, with the single exception
of accessories falling with the provisions of paragraph 1 of the next
preceding article.
The provisions of paragraph 1 of Art. 19 read, as follows:
"By profiting themselves or assisting the offenders to profit by
the effects of the crime."
Art. 124, last paragraph. — The commission of a crime, or violent
insanity or any other ailment requiring the compulsory confinement
of the patient in a hospital, shall be considered legal grounds for the
detention of any person.
Art. 247, pars. 1 and 2. — Death or physical injuries inflicted
under exceptional circumstances. — Any legally married person who,
having surprised his spouse in the act of committing sexual intercourse
with another person, shall kill any of them or both of them in the act or
immediately thereafter, or shall inflict upon them any serious physical
injury, shall suffer the penalty of
If he shall inflict upon them physical injuries of any other kind,
he shall be exempt from punishment.
Art. 280, par. 3. — The provisions of this article (on trespass to
dwelling) shall not be applicable to any person who shall enter another's
dwelling for the purpose of preventing some serious harm to himself,
the occupants of the dwelling or a third person, nor shall it be applicable
to any person who shall enter a dwelling for the purpose of rendering
some service to humanity or justice, nor to anyone who shall enter cafes,
taverns, inns and other public houses, while the same are open.
Art. 332 . — Persons exempt from criminal liability. — No
criminal, but only civil, liability shall result from the commission
of the crime of theft, swindling or malicious mischief committed or
caused mutually by the following persons:
1. Spouses, ascendants and descendants, or relatives by af-
finity in the same line;
The widowed spouse with respect to the property which
belonged to the deceased spouse before the same shall have
passed into the possession of another; and
Brothers and sisters and brothers-in-law and sisters-in-law,
if living together.

243
 Art. 12 ENTRAPMENT

Art. 344, par. 4. — In cases of seduction, abduction, acts of

and rape, the marriage of the offender with the offended
party shall extinguish the criminal action or remit the penalty already
imposed upon him. The provisions of this paragraph shall also be
applicable to the co-principals, accomplices and accessories after the
fact of the above-mentioned crimes.

Instigation is an absolutory cause.

Example:
An internal revenue agent, representing himself as a
private individual engaged in gambling, approached the accused
and induced the latter to look for an opium den where he said he
could smoke opium. The agent went to the accused three times
to convince the latter of his desire to smoke opium. Because of
the insistence of the agent, the accused made efforts to look for
a place where both of them could smoke opium until finally he
found one. The agent and the accused went to the place which
turned out to be the house of a Chinaman, and there the agent
received an opium pipe and paid for the service to both of
them. After a while, the agent left. He returned later to arrest
the accused allegedly for smoking opium.
Held: The accused was not criminally liable. He wa s
instigated to commit the crime of smoking opium. (U.S. vs.
Phelps, 16 Phil. 440)
Suppose that the agent in that case induced the accused to sell
opium to him and the accused sold opium, could the accused be held
liable for illegal possession of opium?
Yes, because the accused was then in possession of opium and
the mere possession of opium is a violation of the law within itself.

Basis of exemption from criminal liability.

A sound public policy requires that the courts shall condemn
this practice (instigation) by directing the acquittal of the accused.

Entrapment is not an absolutory cause.

Example:
The accused wrote to his correspondent in Hongkong
to send to him a shipment of opium. This opium had been in

244
 ENTRAPMENT Art. 12

Hongkong for sometime, awaiting a ship that would go direct

to Cebu.
The Collector of Customs of Cebu received information
that the accused was intending to land opium in the port. The
Collector promised the accused that he would remove all the
difficulties in the way, and for this purpose agreed to receive
Juan Samson, a secret serviceman, pretended to
smooth the way for the introduction of the prohibited drug.
The accused started landing the opium. At this time,
the agents of the law seized the opium and had the accused
prosecuted.
Held: It is true that Juan Samson smoothed the way for
the introduction of the prohibited drug, but that was after the
accused had already planned its importation and ordered for
said drug.
Juan Samson neither induced nor instigated the accused
to import the opium in question, but pretended to have an
understanding with the Collector of Customs, who had promised
them that he would remove all the difficulties in the way of their
enterprise so far as the customs house was concerned.
This is not a case where an innocent person is induced to
commit a crime merely to prosecute him, but it is simply a trap
set to catch a criminal. (People vs. Lua Chua and Se Tieng,
56 Phil. 44)
Suppose, the accused had not yet ordered for opium in Hongkong
when he talked with the Collector of Customs but that on the strength
of the assurance of the Collector of Customs, he later ordered for opium
in Hongkong, would it be instigation? it would be not
entrapment, because the accused was instigated to import a prohibited
drug, a crime punished by Art. 192.
The doctrines referring to the entrapment of offenders and
instigation to commit crime, as laid down by the courts of the United
States, are summarized in 16 Corpus Juris, page 88, Section 57, as
follows:

AND INSTIGATION. - While it has been

said that the practice of entrapping persons into crime for the purpose

245
Art. 12 ENTRAPMENT

of instituting criminal prosecutions is to be deplored, and while

instigation, as distinguished from mere entrapment, has often been
condemned and has sometimes been held to prevent the act from being
criminal or punishable, the general rule is that it is no defense to the
perpetrator of a crime that facilities for its commission were purposely
placed in his way, or that the criminal act was done at the
of persons seeking to expose the criminal, or that detectives
feigning complicity in the act were present and apparently assisting
its commission. Especially is this true in that class of cases where
the offense is one of a kind habitually committed, and the solicitation
merely furnishes evidence of a course of conduct. Mere deception by the
detective will not shield defendant, if the offense was committed by him
free from the influence or the instigation of the detective. The fact that
an agent of an owner acts as a supposed confederate of a thief is no
defense to the latter in a prosecution for larceny, provided the original
design was formed independently of such agent; and where a person
approached by the thief as his confederate notifies the owner or the
public authorities, and being authorized by them to do so, assists the
thief in carrying out the plan, the larceny is nevertheless committed."
(Cited in People vs. Lua Chu and Uy Se Tieng, 56 Phil. 44)

A detective representing to be a private individual, jobless, and

in need of money, befriended a well-known thief. The thief told him
that there was easy money around if he would take a chance. The
detective asked the thief what it was and the latter told him that he
was going to break into the house of a rich man to steal some jewels
and money. The detective pretended to have agreed with him and
the two went to the house, entered it through the window, and once
inside, the thief opened with a false key the wardrobe in the house
and took jewels and money. Then and there the detective arrested
the thief.
Is the thief criminally liable for the robbery committed?
Yes, it was entrapment. The fact that an agent of the law acted
as a supposed confederate of a thief is no defense to the latter, pro-
vided that the original design was formed by the thief independently
of such agent.

Entrapment and instigation distinguished.

There is a wide difference between entrapment and instigation,
for while in the latter case the instigator practically induces the would-
be accused into the commission of the offense and himself becomes a

246
 ENTRAPMENT AND INSTIGATION
Art. 12
DISTINGUISHED

co-principal, in entrapment, ways and means are resorted to for the

purpose of trapping and capturing the lawbreaker in the execution of
his criminal plan. Entrapment is no bar to the prosecution and convic-
tion of the lawbreaker. But when there is instigation, the accused must
be acquitted. (People vs. Galicia, C.A., 40 O.G. 4476; People vs. Yutuc,
G.R. No. 82590, July 26, 1990, 188 SCRA 1, 21; People vs.
G.R. No. 81761, July 2, 1990, 187 SCRA 64, 71; vs. Court of
Appeals, No. L-46638, July 9, SCRA 534, 540)

In entrapment, the entrapper resorts to ways and means to

trap and capture a lawbreaker while executing his criminal plan. In
instigation, the instigator practically induces the would-be defend-
ant into committing the offense, and himself becomes a co-principal.
In entrapment, the means originates from the mind of the criminal.
The idea and the resolve to commit the crime come from him. In
instigation, the law enforcer conceives the commission of the crime
and suggests to the accused who adopts the idea and carries it into
execution. The legal effects of entrapment do not exempt the criminal
from liability. Instigation does. (People vs. Marcos, G.R. No. 83325,
May 8, 1990, 185 SCRA 154, 164, citing earlier cases)

In instigation, a public officer or a private detective induces an

innocent person to commit a crime and would arrest him upon or after
the commission of the crime by the latter. It is an absolutory cause.
In entrapment, a person has planned, or is about to commit, a
crime and ways and means are resorted to by a public officer to trap
and catch the criminal. Entrapment is not a defense.

Instigation must be made by public officers or private

detec- tives.
A criminal act may not be punishable if the accused was induced
to commit it by active cooperation and instigation on the part public
detectives. (State vs. Hayes, 105 Mo. S.W. 514, 24 Am. St. Rep.
360)
A sound public policy requires that the courts shall condemn
this practice by directing an acquittal whenever it appears that the
public authorities or private detectives, with their cognizances, have
taken active steps to lead the accused into the commission of the act.
As was said in a Michigan case: "Human nature is frail enough at
best, and requires no encouragement in wrongdoing. If we cannot

247
Art. 12 COMPLETE DEFENSES IN CRIMINAL CASES

assist another, and prevent him from committing crime, we should

at least abstain from any active efforts in the way of leading him into
(Saunders vs. People, 38 Mich. 218, 222)
If the one who made the instigation is a private individual, not
performing public function, both he and the one induced are criminally
liable for the crime committed: the former, as principal by induction;
and the latter, as principal by direct participation.

There is neither instigation nor entrapment when the

violation of the law is simply discovered.
Charged with and prosecuted for a violation of Executive Order
No. 62, series of 1945, the accused having sold a can of Mennen
Talcum Powder for when the ceiling price for said article was
only the defense contended that the government agent induced
the accused to violate the law by purchasing from him the article and
paying for it in an amount above the ceiling price.
Held: The agent did not induce the accused to violate the law.
He simply discovered the violation committed by the accused when
he (the agent) purchased the article from him. It was the accused who
charged and collected the price. There was not even an entrapment.
(People vs. Tan Tiong, C.A., 43 O.G. 1285)

Assurance of immunity by a public officer does not

exempt a person from criminal liability.
Thus, the accused who delivered to the barrio lieutenant a gun
and ammunition when the latter announced "that anyone who is
concealing firearms should surrender them so that he will not be
penalized" is not exempt from criminal responsibility arising from
the possession of the unlicensed firearm and ammunition. In fact,
not even the President could give such assurance of immunity to any
violator of the firearm law. His constitutional power of clemency can
be exercised only after conviction. (People vs. Alabas, C.A., 52 O.G.
3091)

Complete defenses in criminal cases.

Any of the essential elements of the crime charged is not proved
by the prosecution and the elements proved do not constitute
any crime.

248
 MITIGATING CIRCUMSTANCES Art. 12

2. .T he act of t h e a c c u s e d fal l s u n d e r a n y of t h e
j us t i fy i n g circumstances. (Art.

3. . The c as e of th e accuse d falls u n de r any of

e x e m p t i n g circumstances. (Art. 12)

4. The case is covered by any of the absolutory causes:

a. Spontaneous desistance during attempted stage (Art. 6),
and no crime under another provision of the Code or other
penal law is committed.

b. Light felony is only attempted or frustrated, and is not

against persons or property. (Art. 7)
The accessory is a relative of the principal. (Art. 20)
d. Legal grounds for arbitrary detention. (Art. 124)
e. Legal grounds for trespass. (Art. 280)
f. The crime of theft, swindling or malicious mischief is
committed against a relative. (Art. 332)
g. When only slight or less serious physical injuries are
inflicted by the person who surprised his spouse or
daughter in the act of sexual intercourse with another
person. (Art. 247)
h. Marriage of the offender with the offended party when the
crime committed is rape, abduction, seduction, or acts of
(Art. 344)

i. Instigation.
5. Guilt of the accused not established beyond reasonable doubt.
6. Prescription of crimes. (Art. 89)
7. Pardon by the offended party before the institution of criminal
action in crime against chastity. (Art. 344)

III. Mitigatin g circumstances .

Mitigating circumstances are those which, if present in

249
Art. 13 MITIGATING CIRCUMSTANCES
Classes

the commission of the crime, do not entirely free the actor from
criminal liability, but serve only to reduce the penalty.
2. Ba s i s
Mitigating circumstances are based on the diminution of
either freedom of action, intelligence, or intent, or on the lesser
perversity of the offender.

Classes of mitigating circumstances.

1. Ordinary mitigating — those enumerated in subsections
of Article 13.
Those men ti on ed in subsection 1 of Art. 13 are
ordinary mitigating circumstances, if Art. 69, for instance,
is not applicable.
2. Privileged mitigating —
a. Art. 68. Penalty to be imposed upon a person under
eighteen years of age. - When the offender is a minor
under eighteen years of age and his case falls under
the provisions of the Juvenile Justice and Welfare
Act, the following rules shall be observed:
(1) A person under fifteen years of age, and a
person over fifteen and under eighteen years of age
who acted without discernment, are exempt from
criminal liability;
(2) Upon a person over fifteen and under
eighteen years of age who acted with discernment,
the penalty next lower than that prescribed by law
shall be imposed, but always in the proper period. (As
amended by Rep. Act No. 9344)
b. Art. 69 . Penalty to be imposed when the crime
committed is not wholly excusable. — A penalty lower
by one or two degrees than that prescribed by law
shall be imposed if the deed is not wholly excusable by
reason of the lack of some of the conditions required to
justify the same or to exempt from criminal liability
provided that the majority of such conditions
be present.

250
 MITIGATING CIRCUMSTANCES
Art. 13
Classes

Art. 64. Rules for the application of penalties which

contain three periods. — In cases in which the
penalties prescribed by law contain three periods,
whether it be a single divisible penalty or composed
of three different p en a l t i e s , each one of which
forms a period x x x, the courts shall observe for
the application of the penalty the following rules,
according to whether there are or are not mitigating
or aggravating circumstances:

(5) When there are two or more mitigating

circumstances and no aggravating circumstances
are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it
may deem applicable, according to the number and
nature of such circumstances.
X x x.

Privileged mitigating circumstances applicable only to

particular crimes.
Voluntary release of the person illegally detained within 3
days without the offender attaining his purpose and before
the institution of criminal action. (Art. 268, par. 3) The
penalty is one degree lower.
2. Aband onmen t without justification of the spouse who
committed adultery. (Art. 333, par. 3) The penalty is one
degree lower.

Distinctions.
1. Ordinary mitigating is susceptible of being offset by any
aggravating circumstance; while privileged mitigating
cannot be offset by aggravating circumstance.
2. Ordinary mitigating, if not offset by an aggravating
circumstance, produces only the effect of applying the
penalty provided by law for the crime in its minimum
period, in case of divisible penalty; whereas, privileged
mitigating produces the effect of imposing upon the

251
Art. 13 MITIGATING CIRCUMSTANCES
Distinctions Between Ordinary and Privileged

offender the penalty lower by one or two degrees than that

provided by law for the crime.

People vs. Honradez

(C.A., 40 O.G., 4, 1)

Facts: The accused who was charged with robbery was less than
years He committed the crime during nighttime purposely sought,
which is an aggravating circumstance.

Held: The aggravating circumstance of nighttime cannot offset

the privileged mitigating circumstance of minority.
Note: As to whether the age 16 years or above but under 18 years
is a privileged mitigating circumstance is not a settled question.

Mitigating circumstances only reduce the penalty, but do not

change the nature of the crime.
Where the accused is charged with murder, as when treachery
as a qualifying circumstance is alleged in the information, the fact
that there is a generic or privileged mitigating circumstance does not
change the felony to homicide.
If there is an ordinary or generic mitigating circumstance, not
offset by any aggravating circumstance, the accused should be found
guilty of the same crime of murder, but the penalty to be imposed is
reduced to the minimum of the penalty for murder.
If there is a privileged mitigating circumstance, the penalty for
murder will be reduced by one or two degrees lower.
In every case, the accused should be held guilty of murder.
The judgment of the trial court that the mitigating circumstance
of non-habitual drun kenness changes the felony to homicide is
erroneous, because treachery is alleged in the information and the
crime committed by the appellant is that of murder. The mitigating
circumstance reduces the penalty provided by law but does not change
the nature of the crime. (People vs. C.A., 56 O.G. 3654)

252
 Chapter Three
CIRCUMSTANCES WHICH MITIGATE
CRIMINAL LIABILITY

Art. 13 . Mitigating circumstances. — Th e f o l l o w i n g ar e miti-

gatin g circumstances :
T h os e m e n t i o n e d i n th e p r e c e d i n g c h ap t e r , w h e n all
th e r e q u i s i t e s n e c e s s a r y t o ju st i f y th e ac t o r t o e x e m p t fro m
c r i m i n a l l i a b i l i t y i n th e r e s p e c t i v e c a s e s ar e no t a t t e n d a n t .
2 . Th a t th e o f f e n d e r i s u n d e r e i g h t e e n y e a r s o f ag
e o r ove r s e v e n t y y e a r s . I n th e cas e o f th e m i n o r , h e shall b e
p r o c e e d e d a g a i n s t i n a c c o r d a n c e w i t h th e p r o v i s i o n s o f

Article

3 . Tha t th e o f f e n d e r ha d n o i n t e n t i o n t o c o m m i t s o
g ra v e a w r o n g a s th a t c o m m i t t e d .
4 . Tha t su ff i c i e n t p r o v o c a t i o n o r t h r e a t o n th e par t o f
th e o f f e n d e d p a rt y i m m e d i a t e l y p r e c e d e d th e act.
5. T h a t th e ac t wa s c o m m i t t e d i n th e i m m e d i a t e
v i n d i c a t i o n of a grav e offen s e to th e on e c o m m i t t i n g th e
felony hi s s p o u s e , ascendants , descendants ,
legitimate ,
natura l o r adopte d brother s o r sisters , o r relative s b y
affinity w i t h i n th e sa m e d e g r e e s .
6 . Tha t o f h a v i n g ac te d u p o n a n i m p u l s e s o p o w e r f u
l a s n a t u r a l l y t o h av e p r o d u c e d p a s s i o n o r o b f u s c a t i o n .
7 . T h a t th e o f f e n d e r ha d v o l u n t a r i l y s u r r e n d e r e d
h i m s e l f t o a p e r s o n i n a u t h o r i t y o r hi s a g e n t s , o r tha t h e ha d
v o l u n t a r i l y c o n f e s s e d hi s guil t b efor e th e cour t p ri or t o th e
p r e s e n t a t i o n o f th e e v i d e n c e for th e p r o s e c u t i o n .

repealed by Rep. Act. No. 9344. A child above 15 but below 18 who
acted without discernment may be exempt from criminal liability.

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Art. 13 MITIGATING CIRCUMSTANCES
Par. 1 Incomplete Justifying or Exempting Circumstances

8 . That th e of fe n d er i s dea f an d d u mb , b li n d , or other-

wis e su fferi n g som e p h y s i c a l defec t w h i c h thu s r es tr i c t s hi s
m e a n s o f acti on , d e f e n s e , o r c o m m u n i c a t i o n wi t h hi s fel l ow
b ei n gs .
9 . Su c h i l l n e s s o f th e of fe n d e r a s w o u l d d i m i n i s h th e
e x e r c i s e o f th e w i l l - p owe r o f th e of fe n d e r w i t h o u t h o w e v e r
d e p r i v i n g hi m o f c o n s c i o u s n e s s o f hi s acts .
10. And , finally, an y o th e r c i r c u m s t a n c e s of a si mi l a
r natu r e an d a n a l o g o u s t o th os e a b o v e - m e n t i o n e d .

Par. 1. — Those mentioned in the preceding chapter when all

the requisites necessary to justify the act or to exempt
from criminal liability in the respective cases are not
attendant.

"Those mentioned in the preceding chapter."

This clause has reference to justifying and (2)
exempting circumstances which are covered by Chapter Two of Title
One.

Circumstances of or exemption which may

give place to mitigation.
The circumstances justification or exemption which may give
place to mitigation, because not all the requisites necessary to justify
the act or to exempt from criminal liability in the respective cases are
attendant, are the following:

Self-defense (Art. par.

(2) Defense of relatives (Art. 11, par. 2);
(3) Defense of stranger (Art. 11, par. 3);
(4) State of necessity (Art. par. 4);
(5) Performance of duty (Art. par. 5);
(6) Obedience to order of superior (Art. par. 6);
(7) Minority over 9 and under 15 years of age (Art. 12, par.
3);

254
 MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1

(8) Causing injury by mere accident 12, par. 4); and

(9) Uncontrollable fear. (Art. 12, par. 6)

Paragraphs 1 and 2 of Article cannot give place to mitigation,

because, as stated by the Supreme Court of Spain, the mental condition
of a person is indivisible; that is, there is no middle ground between
sanity and insanity, between presence and absence of intelligence.
of Sup. Ct. of Spain of December 19, 1891 and of October 3,
1884)

But if the offender is suffering from some illness which would

diminish the exercise of his will-power, without however depriving
him of consciousness of his acts, such circumstance is considered a
mitigation under paragraph 9 of Article 13. It would seem that one
who is suffering from mental disease without however depriving one of
consciousness of one's act may be given the benefit of that mitigating
circumstance.

When all the requisites necessary to justify the act are not
attendant.
1. Incomplete self-defense, defense of relatives, and defense of
stranger.
Note that in these three classes of defense, unlawful
aggression must be present, it b ein g an i n d i s p e n s a b l e
requisite. What is absent is either one or both of the last two
requisites.

Paragraph 1 of Art. 13 is applicable only when unlawful

aggression is present but the other two requisites are not
present in any of the cases referred to in circumstances
Nos.
of 11.
Art. 13, par. applies only when unlawful aggression is present,
but the other two requisites are not present. (Guevara)
When two of the three requisites mentioned therein are present
(for example, unlawful aggression and any one of the other two), the
case must not be considered as one in which an ordinary or generic
mitigating circumstance is present. Instead, it should be considered
a privileged mitigating circumstance referred to in Art. 69 of this
255
Code.

256
Art. 13 MITIGATING CIRCUMSTANCES
Par. 1 Incomplete Justifying or Exempting Circumstances

Thus, if in self-defense there was unlawful aggression on the

part of the deceased, the means employed to prevent or repel it was
reasonable, but the one making a defense gave sufficient provocation,
he is entitled to a privileged mitigating circumstance, because the
majority of the conditions required to justify the act is present. (Art.
69) Also, if in the defense of a relative there was unlawful aggres-
sion on the part of the deceased, but the one defending the relative
used unreasonable means to prevent or repel it, he is entitled to a
privileged mitigating circumstance.
When there is unlawful aggression on the part of the deceased
without sufficient provocation by the defendant, but the latter uses
means not reasonably necessary, for after having snatched the rope
from the deceased, he should not have wound it around her neck
and tightened it. Held: There is incomplete self-defense on the part
of the defendant, which may be considered a privileged mitigating
circumstance. (People vs. Martin, 89 Phil. 18, 24)

But if there is no unlawful aggression, there could be no self-

defense or defense of a relative, whether complete or incomplete.

Example of incomplete defense.

The deceased was about to set on fire the house of the
accused, where she was sleeping together with her two children.
They grappled and the accused boloed to death the deceased.
There was unlawful aggression consisting in trying to set on
fire the house of the accused. There was the element of danger
to the occupants of the house. But having already driven the
aggressor out of the house, who was prostrate on the ground, the
accused should not have persisted in wounding her no less than
fourteen times. There is, therefore, absence of one circumstance
to justify the necessity of killing the aggressor.
The accused was entitled to a privileged mitigating circumstance
of incomplete defense. Here, the accused acted in defense of her
person, her home, and her children. (U.S. vs. Rivera, 41 Phil.
472, 473-474)

Example of incomplete self-defense.

The accused is entitled to only incomplete self-defense.
The deceased was in a state of drunkenness, so he was not as
dangerous as he would if he had been sober. His aim proved

257
 MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1

faulty and easily evaded as shown by the fact that the person
defending was not hit by the stab attemp ts- blows directed
against him. The necessity of the means used to repel the
aggression is not clearly reasonable. (People vs. De Jesus, No.
L-58506, Nov. 19, 1982, SCRA 616, 627)

Example of incomplete defense of relative.

The deceased hit the first cousin of the accused with the
butt of a shotgun. The deceased also pointed the shotgun at the
first cousin, took a bullet from his jacket pocket, showed it to
him and asked "Do you like to which the latter
replied, "No, Noy, I do not like that." The deceased then placed
the bullet in the shotgun and was thus pointing it at the first
cousin when the accused came from behind the deceased and
stabbed him. There was unlawful aggression on the part of the
deceased and there was no provocation on the part of the
However, because of a running feud between the deceased and
his brother on one side and the accused and his brother on the
other side, the accused could not have been impelled by pure
compassion or beneficence or the lawful desire to avenge the
immediate wrong inflicted on his cousin. He was motivated by
revenge, resentment or evil motive. He is only entitled to the
privileged mitigating circumstance of incomplete defense of
relative. (People vs. Toring, G.R. No. 56358, Oct. 26, 1990, 191
SCRA 38, 45-48)

2. Incomplete justifying circumstance of avoidance of greater evil

or injury.
Avoidance of greater evil or injury is a justifying circum-
stance if all the three requisites mentioned in paragraph 4 of
Article 11 are present. But if any of the last two requisites is
absent, there is only a mitigating circumstance.
3. Incomplete justifying circumstance of performance of duty.
As has been discussed under Article there are two
requisites that must be present in order that the circumstance
in Article 11, No. 5, may be taken as a justifying one, namely:
a. That the accused acted in the performance of a duty or in
the lawful exercise of a right or office; and

258
Art. 13 MITIGATING CIRCUMSTANCES
Par. 1 Incomplete Justifying or Exempting Circumstances

b. That the injury caused or offense committed be the neces-

sary consequence of the due performance of such duty or
the lawful exercise of such right or office.
In the case of People vs. Oanis, supra, where only one of the
requisites of circumstance No. 5 of Art. 11 was present, Art. 69 was
applied. The Supreme Court said —
"As the deceased was killed while asleep, the crime
committed is murder with the qualifying circumstance
There is, however, a mitigating circumstance of weight consisting
in the incomplete justifying circumstance defined in Art. 11, No.
5, of the Revised Penal Code. According to such legal provision, a
person incurs no criminal liability when he acts in the fulfillment
of a duty or in the lawful exercise of a right or office. There are
two requisites in order that the circumstance may be taken as a
justifying one: (a) that the accused acted in the performance of a
duty or in the lawful exercise of a right or office; and (b) that the
injury caused or offense committed be the necessary consequence
of the due performance of such duty or the lawful exercise of
such right or office. In the instant case, only the first requisite
is have acted in the performance of a duty.
The second requisite is wanting for the crime committed by them
is not the necessary consequence of a due performance of their
duty. Their duty was to arrest Balagtas, or to get him dead or
alive if resistance is offered by him and they are overpowered.
But through impatience or over anxiety or in their desire to take
no chances, they have exceeded in the fulfillment of such duty by
killing the person whom they believed to be Balagtas without any
resistance from him without making any previous inquiry as
to his identity. According to Art. 69 of the Revised Penal Code,
the penalty lower by one or two degrees than that prescribed by
law shall, in such case, be imposed.
"For all the foregoing, the jud gmen t is modified and
appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly
sentenced to an indeterminate penalty of from five (5) years of
correccional to fifteen (15) years of temporal,
with the accessories of the law, and to pay the heirs of the
deceased Serapio Tecson, jointly and severally, an indemnity
P2,000, with costs."

259
 MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1

Since the Su p reme Court considered one of the two

requisites as constituting the majority, it seems that there is no
ordinary mitigating circumstance under Art. 13, par. 1, when
the justifying or exempting circumstance has two requisites
only.
4. Incomplete justifying circumstance of obedience to an order.
Roleda fired at Pilones, following the order of Sergeant
Benting, Roleda's superior. It appears that on their way to the
camp, Roleda learned that Pilones had killed not only a barrio
lieutenant but also a member of the military police, and this
may have aroused in Roleda a feeling of resentment that may
have impelled him to readily and without questioning follow
the order of Sgt. Benting. To this may be added the fact of his
being a subordinate of Sgt. Benting who gave the order, and
while out on patrol when the soldiers were supposed to be under
the immediate command and control of the patrol leader, Sgt.
Benting. (People vs. Bernal, et 91 Phil. 619)

When all the requisites necessary to exempt from criminal

liability are not attendant.
Incomplete exempting circumstance of minority over 9 and under
15 years of age.
To be exempt from criminal liability under paragraph 3 of
Article 12, two conditions must be present:
a. That the offender is over 9 and under 15 years old; and
b. That he does not act with discernment.
Therefore, if the minor over 9 and under 15 years of age
acted with discernment, he is entitled only to a mitigating
circumstance, because not all the requisites necessary to exempt
from criminal liability are present.
The case of such minor is specifically covered by Art. 68.
2. Incomplete exempting circumstance of accident.
Under paragraph 4 of Article 12, there are four requisites
that must be present in order to exempt one from criminal li-
ability, namely:

260
 Art. 13 MITIGATING CIRCUMSTANCES
Par. 1 Incomplete Justifying or Exempting Circumstances

a. A person is performing a lawful act;

b. With due care;
He causes an injury to another by mere accident; and
d. Without fault or intention of causing it.
If the second requisite and the 1st part of the fourth
requisite are absent, the case will fall under Art. 365 which
punishes a felony by negligence or imprudence.
In effect, there is a mitigating circumstance, because the
penalty is lower than that provided for intentional felony.
If the first requisite and the 2nd part of the fourth requisite
are absent, because the person committed an unlawful act and
had the intention of causing the injury, it will be an intentional
felony. The 2nd and 3rd requisites will not be present either.
In this case, there is not even a mitigating circumstance.
3. Incomplete exempting circumstance of uncontrollable fear.
Under paragraph 6 of Article 12, uncontrollable fear
is an exempting circumstance if the following requisites are
present:
a. That the threat which caused the fear was of an evil greater
than, or at least equal to, that which he was required to
commit;
b. That it promised an evil of such gravity and imminence
that an ordinary person would have succumbed to i t
(uncontrollable).
If only one of these requisites is present, there is only a mitigat-
ing circumstance.

Illustration:

People vs. Magpantay

(C.A., 46 O.G. 1655)

Facts: In the night of May 8, 1947, Felix and Pedro took turns
to guard, so that when one was asleep the other was awake. At about
nine o'clock when Pedro was asleep, the silhouette of a man passed in

261
 MITIGATING CIRCUMSTANCES Art. 13
Incomplete Justifying or Exempting Circumstances Par. 1

front of their house without any light. The night was dark and it was
drizzling. The coconut trees and the bushes on the sides of the road
increased the darkness. When Felix saw the silhouette, he asked it
who it was, but it walked hurriedly, which made Felix suspicious as it
might be a scouting guard of the gang. Felix fired into the air,
yet the figure continued its way.
When Pedro heard the shot, he suddenly grabbed the rifle at his
side and fired at the figure on the road, causing the death of the man.
This man was afterward found to be Pedro Pinion, who was returning
home unarmed after fishing in a river.
The accused voluntarily surrendered to the barrio-lieutenant and
then to the chief of police.
Held: The accused acted under the influence of the fear of being
attacked. Having already in his mind the idea that they might be
raided at any moment by the Dilim gang and suddenly awakened by
the shot fired by Felix, he grabbed his gun and fired before he could
be fired upon. The fear, however, was not entirely uncontrollable, for
had he not been so hasty and had he stopped a few seconds to think,
he would have ascertained that there was no imminent danger.
He is entitled to the mitigating circumstance of grave fear, not
entirely uncontrollable, under paragraph 1 of Article 13 in connection
with paragraph 6 of Article 12 of the Revised Penal Code. That said
two provisions may be taken together to constitute a mitigating
circumstance has been declared by the Supreme Court of Spain in its
decision of February 24, 1897 and by Groizard. (Codigo Penal, Vol. I,
pp. 370-372, Third Edition)
Consequently, there are two marked mitigating circumstances
in favor of the accused. Article 64, in paragraph 5, of the Revised
Penal Code provides that: "When there are two or more mitigating
circumstances and no aggravating circumstances are present, the court
shall impose the penalty next lower to that prescribed by law, in the
period that it may deem applicable, according to the number and nature
of such circumstances." The penalty for homicide is temporal.
The next lower penalty is prision mayor, which may be imposed in the
period that the court may deem applicable according to the number
and nature of such circumstance.
In view of the foregoing, this Court finds the accused Pedro
Magpantay guilty of homicide, with two very marked mitigating
circumstances, and modifies the judgment appealed from by imposing
upon him the penalty of from six (6) months and one day prision
to six (6) years and one day of prision mayor.

261
Art. 13 MITIGATING CIRCUMSTANCES
Par. 2 Under Eighteen or Over Seventy Years Old

With due respect, it is believed that Art. 69, in connection with

paragraph 6 of Article not Article paragraph in relation to
paragraph 6 of Article 12, should be applied.
When it considered grave fear, not entirely uncontrollable, as
ordinary mitigating circumstance under Article 13, paragraph 1,
together with voluntary surrender, and applied Article 64, the Court
of Appeals should have fixed the maximum term of the indeterminate
penalty (prision mayor) in its medium period. The two mitigating
circumstances having been considered already for the purpose
of lowering the penalty for homicide by one degree, pursuant to
paragraph 5 of Article 64, there is no mitigating circumstance that
will justify the imposition prision mayor in its minimum period.
Had Article 69 in connection with paragraph 6 of Article been
applied, the penalty imposed would have a correct basis. Under Article
69, the penalty one or two degrees lower than that provided for the
offense may be imposed. The mitigating circumstance of voluntary
surrender need not be considered in lowering the penalty by one
degree. Therefore, the voluntary surrender of the accused, which is a
generic mitigating circumstance, may be considered for the purpose
of fixing prision mayor in its minimum period. (Art. 64, par. 2)

Par. 2. — That the offender is under eighteen years of age or

over seventy years. In the case the minor, he shall be
proceeded against in accordance with the provisions
of Article 80 (now Art. 192, P.D. No. 603).

Paragraph 2, Article 13 RPC impliedly repealed by Republic

Act No. 9344.
Paragraph 2, Article 13 of the Revised Penal Code providing
that offender under eighteen years of age is entitled to a mitigating
circumstance of minority is deemed repealed by the provision of Re-
public Act 9344 declaring a child above fifteen (15) years but below
eighteen years or age shall be exempt from criminal liability un-
less he/she has acted with discernment. (Sec. 6, Rep. Act No. 9344)
In other words, whereas before, an offender fifteen or over
but under eighteen years of age is entitled only to the benefits
provided under Article 68 of the Revised Penal Code, under Republic

262
 MITIGATING CIRCUMSTANCES Art. 13
Under Eighteen or Over Seventy Years Old Par. 2

Act No. 9344 or the "Juvenile Justice and Welfare Act of 2006," such
offender may be exempt from criminal liability should he/she acted
without discernment.

On the other hand, if such offender acted with discernment,

such child in conflict with the law shall undergo diversion programs
provided under Chapter 2 of Republic Act No. 9344.

Meaning of Diversion and Diversion Program under

Republic Act No. 9344
"Diversion" refers to an alternative, child-appropriate process
of determining the responsibility and treatment of a child in conflict
with the law on the basis of his/her social, cultural, economic,
or educational background without resulting to formal
court proceedings. (Section Rep. Act No. 9344)
"Diversion Program" refers to the program that the child
in conflict with the law is required to undergo after he/she is
found responsible for an offense without resorting to formal court
proceedings. (Section Rep. Act No. 9344)

System of Diversion.
Children in conflict with the law shall undergo diversion pro-
grams without undergoing court proceedings subject to the following
conditions:
(a) Where the imposable penalty for the crime committed is
not more than six (6) years imprisonment, the law enforcement office
or Punong Barangay with the assistance of the local social welfare
and development officer or other members of the Local Councils for
the Protection of Children (LCPC) established in all levels of local
government pursuant to Rep. Act No. 9344, shall conduct mediation,
family conferencing and conciliation and, where appropriate, adopt
indigenous modes of conflict resolution in accordance with the best
interest of the child with a view to accomplishing the objectives of
restorative justice and the formulation of a diversion program. The
child and his/her family shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not
more than six (6) years of imprisonment, the local social welfare and
development officer shall meet with the child and his/her parents
or guardians for the development of the appropriate diversion and

263
Art. 13 MITIGATING CIRCUMSTANCES
Par. 2 Under Eighteen or Over Seventy Years Old

rehabilitation program, in coordination with the Barangay Council

for the Protection of Children (BCPC) created pursuant to Rep. Act
No. 9344.
(c) Where the imposable penalty for the crime committed ex-
ceeds six (6) years imprisonment, diversion measures may be resorted
to only by court. (See Section 23, Republic Act No. 9344)

Conferencing, Mediation and Conciliation.

A child in conflict with the law may undergo conferencing, me-
diation or conciliation outside the criminal justice system or prior to
his entry into said system. A contract of diversion may be entered
into during such conferencing, mediation or conciliation proceedings.
(Sec. 25, Rep. Act No. 9344)

Contract of Diversion.
If during the conferencing, mediation or conciliation, the child
voluntarily admits the commission of the act, a diversion program
shall be developed when appropriate and desirable as determined
under Section 30. Such admission shall not be used against the child in
any subsequent judicial, or administrative proceedings.
The diversion program shall be effective and binding if accepted by the
parties concerned. The acceptance shall be in writing and signed by
the parties concerned and the appropriate authorities. The local social
welfare and development officer shall supervise the implementation of
the diversion program. The diversion proceedings shall be completed
within forty-five (45) days. The period of prescription of the offense
shall be suspended until the completion of the diversion proceedings
but not to exceed forty-five (45) days.

The child shall present to the competent authori-

ties that imposed the diversion program at least once a month for
reporting and evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract
of diversion, as certified by the local social welfare and development
officer, shall give the offended party the option to institute the ap-
propriate legal action.
The period of prescription of the offense shall be suspended
during the effectivity of the diversion program, but not exceeding a
period of two (2) years. (Sec. 26, Rep. Act No. 9344)

264
 MITIGATING CIRCUMSTANCES Art. 13
Under Eighteen or Over Seventy Years Old Par. 2

Where diversion may be conducted.

Diversion may be conducted at the Katarungang Pambarangay,
the police investigation or the inquest or preliminary investigation
stage and at all levels and phases of the proceedings including judicial
level. (Section 24, Republic Act No. 9344)

Duty of the Punong Barangay or the Law

when there is no diversion.
If the offense does not fall under the category where the
imposable penalty for the crime committed is not more than six (6)
years of imprisonment or in cases of victimless crimes where the
imposable penalty is also not more than six years imprisonment, or if
the child, his/her parents or guardians does not consent to a diversion,
the Punong Barangay handling the case shall, within three (3) days
from determination of the absence of jurisdiction over the case or
termination of the diversion proceeding as the case may be, forward
the records of the case to the law enforcement officer, prosecutor or
the appropriate court, as the case may be. (See Section 27, Republic
Act No. 9344)

In case a Law Enforcement Officer is the one handling the

case, within same period, the Law Enforcement Officer shall forward
the records of the case to the prosecutor or judge concerned for the
conduct of inquest and/or preliminary investigation. The document
transmitting said records shall display the word "CHILD" in bold
letters. (Sec. 28, Rep. Act No. 9344)

Determination of age of child in conflict with the law.

The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with
the law until he/she is proven to be eighteen years old or older.
The age of a child may be determined from the child's birth certificate,
baptismal certificate or any other pertinent In the absence
of these documents, age may be based on information from the child
himself/herself, testimonies of other persons, the physical appearance
of the child and other relevant evidence. In case of doubt as to the
age of the child, it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict with the law
prior to the filing of the information in any appropriate court may file

265
Art. 13 MITIGATING CIRCUMSTANCES
Par. 2 Unde r or Over Seventy Years Old

a case in a summary proceeding for the determination of age before

the Family Court which shall decide the case within twenty-four
(24) hours from receipt of the appropriate pleadings of all interested
parties.
If a case has been filed against the child in conflict with the law
and is pending in the appropriate court, the person shall file a motion
to determine the age of the child in the same court where the case
is pending. Pending hearing on the said motion, proceedings on the
main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges
and other government officials concerned shall exert all efforts at
determining the age of the child in conflict with the law. (Section 7,
Republic Act No. 9344)

That the offender is over 70 years of age is only a generic

mitigating circumstance.
While paragraph 2 of Article 13 covers offenders under 18 years
of age and those over 70 years, Article 68, providing for privileged
mitigating circumstances, does not include the case of offenders over
70 years old.

Prior to the enactment of Rep. Act No. 9346 prohibiting the

imposition of the death penalty, there were two cases where the fact
that the offender is over 70 years of age had the effect of a privileged
mitigating circumstance, namely: when he committed an offense
punishable by death, that penalty shall not be imposed (Art. 47, par.
1) and (2) when the death sentence is already imposed, it shall be
suspended and commuted. (Art. 83)
In any of the above-mentioned two cases, the penalty of death
will have to be lowered to life imprisonment

Basis of paragraph 2.
The mitigating circumstances in paragraph 2 of Art. 13 are
based on the diminution of intelligence, a condition of voluntari-
ness.

266
 MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3

Par. 3. — That the offender had no intention

to commit so a wrong as that committed.

Rule for the application of this paragraph.

This circumstance can be taken into account only when the facts
proven show that there is a notable and evident disproportion between
the means employed to execute the criminal act and its
(U.S. vs. Reyes, 36 Phil. 904 , 907)

Illustrations:

The husband who was quarreling with his wife punched her
in the abdomen, causing the rupture of her hypertrophied
spleen, from which she died. (People vs. Rabao, 67 Phil.
255, 257, 259)
2. The accused confined himself to giving a single blow with
a bolo on the right arm of the victim and did not repeat the
blow. The death of the victim was due to neglect and the lack
of medical treatment, his death having resulted from hemor-
rhage which those who attended to him did not know how to
stop or control in time. (U.S. vs. 1 Phil. 47, 49)

3. The accused, a policeman, boxed the deceased, a detention

prisoner, inside the jail. As a consequence of the fistic blows,
the deceased collapsed on the floor. The accused stepped
on the prostrate body and left. After a while, he returned
with a bottle, poured its contents on the recumbent body
of the deceased, ignited it with a match and left the cell
again. As a consequence, the victim later on died. Held: The
accused is entitled to the mitigating circumstance of "no
intention to commit so grave a wrong as that committed."
(People vs. Ural, No. March 27, 1974, 56 SCRA
138, 140-141, 146)

Intention, being an internal state, must be judged by external

acts.
The intention, as an internal act, is judged not only by the pro-
portion of the means employed by him to the evil produced by his act,
but also by the fact that the blow was or was not aimed at a vital part
of the body.

267
Art. 13 MITIGATING CIRCUMSTANCES
Par. 3 No Intention to Commit So Grave A Wrong

Thus, it may be deduced from the proven facts that the accused
had no intent to kill the victim, his design being only to maltreat
him, such that when he realized the fearful consequences of his
felonious act, he allowed the victim to secure medical treatment at
the municipal dispensary. (People vs. Ural, No. March 27,
1974, 56 SCRA 138, 146)
Thus, where the accused fired a loaded revolver at the deceased
and killed him, it must be presumed, taking into consideration
the means employed as being sufficient to produce the evil which
resulted, that he intended the natural consequence of his act and he
is, therefore, not entitled to the benefit of the mitigating circumstance
of lack of intention to commit a wrong as that committed. (U.S. vs.
Fitzgerald, 2 Phil. 419, 422)

Thus, where at the time of the commission of the crime, the

accused was 32 years of age, while his victim was 25 years his senior,
and when the latter resisted his attempt to rape her by biting and
scratching him, to subdue her, the accused boxed her and then held her
on the neck and pressed it down, while she was lying on her back and
he was on top of her, these acts were reasonably sufficient to produce
the result that they actually death of the victim. (People
vs. No. L-29066, March 32 SCRA 95, 98)
So also, when the assailant, armed with a bolo, inflicted upon
his victim a serious and fatal wound in the abdomen, it is not to be
believed that he had no intention of killing his victim, having clearly
shown, by the location of the wound, that he had a definite and
perverse intention of producing the injury which resulted. (U.S. vs.
Mendac, 31 Phil. 240, 244-245)
Defendant alleged as mitigating circumstance that he did not
intend to commit so grave an injury. Held: The plea is groundless;
he used a knife six inches long. The fatal injury was the natural and
almost inevitable consequence. Moreover, he attempted to stab a
second time but was prevented from doing so. (People vs. Orongan,
et 58 Phil. 426, 429)

The weapon used, the part of the body injured, the injury
inflicted, and the manner it is inflicted may show that the
accused intended the wrong committed.
Intention must be judged by considering the weapon used,
the injury inflicted, and his attitude of the mind when the

268
 MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3

accused attacked the deceased. Thus, when the accused

used a heavy club in attacking the deceased whom he
followed some distance, without giving him an opportunity
to defend himself, it is to be believed that he intended to do
exactly what he did and must be held responsible for the
result, without the benefit of this mitigating circumstance.
(People vs. Flores, 50 Phil. 548, 551)

2. When a person stabs another with a lethal weapon such

as a fan knife (and the same could be said of the butt of a
rifle), upon a part of the body, for example, the head, chest,
or stomach, death could reasonably be anticipated and the
accused must be presumed to have intended the natural
consequence of his wrongful act. (People vs. Reyes, 61 Phil.
341 , 343; People vs. Datu Baguinda, 44 O.G. 2287)

3. The weapon used, the force of the blow, the spot where the
blow was directed and landed, and the cold blood in which
it was inflicted, all tend to negative any notion that the
plan was anything less than to finish the intended victim.
The accused in this case struck the victim with a hammer
on the right forehead. (People vs. Banlos, G.R. No.
Dec. 29, 1950)

4. As to the alleged lack of intent to commit so grave a wrong

as that committed, the same cannot be appreciated. The
clear intention of the accused to kill the deceased may be
inferred from the fact that he used a deadly weapon and
fired at the deceased almost point blank, thereby hitting
him in the abdomen and causing death. (People vs. Reyes,
No. Feb. 27, 1976, 69 SCRA 474, 482)

5. Where the evidence shows that, if not all the persons who
attacked the deceased, at least some of them, intended
to cause his death by throwing at him stones of such size
and weight as to cause, as in fact they caused, a fracture of
his skull, and as the act of one or some of them is deemed
to be the act of the others there being sufficient proof of
conspiracy, the mitigating circumstance of lack of intent
to commit so grave a wrong as the one actually committed
cannot favorably be considered. (People vs. Bautista, Nos.
L-23303-04, May 20, 1969, 28 SCRA People

269
Art. 13 MITIGATING CIRCUMSTANCES
Par. 3 No Intention to Commit So Grave A Wrong

vs. Espejo, No. L-27708, Dec. 19, 1970, 36 SCRA 400,

424)

Inflicting of five stab wounds in rapid succession negates pretense of

lack of intention to cause so serious an injury.
The inflicting by the accused of five (5) stab wounds caused in
rapid succession brings forth in bold relief the intention of the ac-
cused to snuff out the life of the deceased, and definitely negates any
pretense of lack of intention to cause so serious an injury. (People vs.
No. Oct. 31 , 1969, 30 SCRA 307, 316)

Art. par. 3, is not applicable when the offender employed

brute force.
To prove this circumstance, the accused testified that "my only
intention was to abuse her, but when she tried to shout, I covered
her mouth and choked her and later I found out that because of that
she died." The Supreme Court said: "It is easy enough for the ac-
cused to say that he had no intention to do great harm. But he knew
the girl was very tender in age (6 years old), weak in body, helpless
and defenseless. He knew or ought to have known the natural and
inevitable result of the act of strangulation, committed by men of
superior strength, specially on an occasion when she was resisting
the onslaught upon her honor. The brute force employed by the ap-
pellant, completely contradicts the claim that he had no intention to
kill the victim." (People vs. Yu, No. Jan. 28, 1961, 1 SCRA

It is the intention the offender at the moment when he is committing

the crime which is considered.
The point is raised that the trial court should have considered
the mitigating circumstance of lack of intent to commit so grave a
wrong as that The argument is that the accused planned
only to rob; they never meant to kill. Held: Art. 13, par. 3, of the
Revised Penal Code addresses itself to the intention of the offender
at the particular moment when he executes or commits the criminal
act; not to his intention during the planning stage. Therefore, when,
as in the case under review, the original plan was only to rob, but
which plan, on account of the resistance offered by the victim, was
compounded into the more serious crime of robbery with homicide,

270
 MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3

the plea of lack of intention to commit so grave a wrong cannot be

rightly The irrefutable fact remains that when they ganged
up on their victim, they employed deadly weapons and inflicted on him
mortal wounds in his neck. At that precise moment, they did intend
to kill their victim, and that was the moment to which Art. 13, par.
3, refers. (People vs. Boyles, No. May SCRA 88,
95-96; People vs. No. L-26789, April 25, 1969, 27 SCRA 1037,
1045-1046)

Art. 13, par. 3 of the Revised Penal Code "addresses itself to the
intention of the offender at the particular moment when he executes
or commits the criminal act; not to his intention during the planning
stage." Therefore, if the original plan, as alleged by the accused, was
merely to ask for forgiveness from the victim's wife who scolded them
and threatened to report them to the authorities, which led to her
killing, the plea of lack of intention to commit so grave a wrong cannot
be appreciated as a mitigating circumstance. The records show that
the accused held the victim's wife until she fell to the floor, whereupon
they strangled her by means of a piece of rope tied around her neck
till she died. The brute force employed by the accused completely
contradicts the claim that they had no intention to kill the victim.
(People vs. No. L-30849, March SCRA 131,
152)

Lack of intention to grave a wrong mitigating in

robbery with homicide.
The mitigating circumstance of lack of intent to commit so
grave a wrong may be appreciated favorably in robbery with homi-
cide, where it has not been satisfactorily established that in forcing
entrance through the door which was then closed, with the use of
pieces of wood, the accused were aware that the deceased was behind
the door and would be hurt, and there is no clear showing that they
ever desired to kill the deceased as they sought to enter the house to
retaliate against the male occupants or commit robbery. (People vs.
Abueg, No. Nov. 24, 1986, 145 SCRA 622, 634)

Appreciated in murder qualified by circumstances based

on manner of commission, not on state of mind of
accused.
Several accused decided to have a foreman beaten up. The deed
271
was accomplished. But the victim died as a result of hemorrhage. It

272
 Art. 13 MITIGATING CIRCUMSTANCES
Par. 3 No Intention to Commit So Grave A Wrong

was not the intention of the accused to kill the victim. Held: Murder
results from the presence of qualifying circumstances (in this case
with premeditation and treachery) based upon the manner in which
the crime was committed and not upon the state of mind of the ac-
cused. The mitigating circumstance that the offender had no intention
to commit so grave a wrong as that committed is based on the state
of mind of the offender. Hence, there is no incompatibility between
evident premeditation or treachery, which refers to the manner of
committing the crime, and this mitigating circumstance. (People vs.
Enriquez, 58 Phil. 536, 544-545)

Not appreciated in murder by treachery.

Lack of intention to commit so grave a wrong is not appreciated
where the offense committed is characterized by treachery. The five
accused claim that the weapons used are mere pieces of wood, and the
fact that only seven blows were dealt the deceased by the five of them,
only two of which turned out to be fatal, shows that the tragic and
grievous result was far from their The record however,
that the offense committed was characterized by treachery and the
accused left the scene of the crime only after the victim had fallen
down. Hence, the mitigating circumstance of lack of intention cannot
be appreciated in their favor. (People vs. Pajenado, No. L-26458, Jan.
30, 1976, 69 SCRA 172, 180)

Lack of intent to kill not mitigating in physical injuries.

In crimes against persons who do not die as a result of the
assault, the absence of the intent to kill reduces the felony to
mere physical injuries, but it does not constitute a mi ti gati n g
circumstance under Art. 13 , par. 3. (People vs. Galacgac, C.A., 54

Mitigating when the victim dies.

As part of their fun-making, the accused merely intended to set
the deceased's clothes on fire. Burning the clothes of the victim would
cause at the very least some kind of physical injuries on this person.
The accused is guilty of the resulting death of the victim but he is
entitled to the mitigating circumstance of no intention to commit so
grave a wrong as that committed. (People vs. Pugay, No. L-74324,
Nov. 17, 1988, 167 SCRA 439, 449)

273
 MITIGATING CIRCUMSTANCES Art. 13
No Intention to Commit So Grave A Wrong Par. 3

Not applicable to felonies by negligence.

In the case of infidelity in the custody of prisoners through
negligence (Art. 224), this circumstance was not considered. (People
vs. Medina, C.A., 40 O.G. 4196)
The reason is that in felonies through negligence, the offender
acts without intent. The intent in intentional felonies is replaced
by n egligen ce, imp rud en ce, lack of foresight or lack of skill in
culpable felonies. Hence, in felonies through negligence, there is
no intent on the part of the offender which may be considered as
diminished.

Is Art. par. 3, applicable to felonies where the intention of

the offender is immaterial?
In unintentional abortion, where the abortion that resulted
is not intended by the offender, the mitigating circumstance that
the offender had no intention to commit so grave a wrong as that
committed is not applicable. (People vs. Cristobal, C.A., G.R. No.
8739, Oct.
But in another case, where the accused pulled the hair of
the complainant who was three months pregnant causing her to
fall on her buttocks on the cement floor, with the result that after
experiencing vaginal hemorrhage the foetus fell from her womb, it
was held that the accused having intended at the most to maltreat
the complainant only, the mitigating circumstance in Art. 13, par.
3, should be considered in his favor. (People vs. C.A., 58
O.G. 4060)
Unintentional abortion is committed by any person by vio-
lence, shall cause the killing of the foetus in the uterus or the violent
expulsion of the foetus from the maternal womb, causing its death,
but unintentionally. (Art. 257)

Applicable only to offenses resulting in physical injuries or

material harm.
Thus, the mitigating circumstance that the offender did not
intend to commit so grave a wrong as that committed was not ap-
preciated in cases of defamation or slander. (People vs. Galang de
Bautista, C.A., 40 O.G. 4473)

274
Art. 13 MITIGATING CIRCUMSTANCES
Par. 4 Provocation or Threat

Basis of paragraph 3.
In this circumstance, intent, an element of voluntariness in
intentional felony, is diminished.

Par. 4. — That sufficient provocation or threat on the part the

offended party immediately preceded the act.

What is provocation?
By provocation is understood any unjust or improper conduct
or act of the offended party, capable of exciting, inciting, or irritating
any

Requisites:
1. That the provocation must be sufficient.
2. That it must originate from the offended
3. That the provocation must be immediate to the act, i.e.,
to the commission of the crime by the person who is
provoked.

The provocation must be

Provocation in order to be mitigating must be sufficient and
immediately preceding the act. (People vs. No. L-32040, Oct.
79 SCRA 570, 575-576)
The word "sufficient" means adequate to excite a person to com-
mit the wrong and must accordingly be proportionate to its gravity.
(People vs. Nabora, 73 Phil. 434, 435)
As to whether or not a provocation is sufficient depends upon
the act constituting the provocation, the social standing of the
person provoked, the place and the time when the provocation is
made.

Examples of sufficient provocation.

1. The accused was a foreman in charge of the preservation
of order and for which purpose he provided himself with a

275
 MITIGATING CIRCUMSTANCES
Art. 13
Provocation or Threat
Par. 4

pick handle. The deceased, one of the laborers in the line to

receive their wages, left his place and forced his way into
the file. The accused ordered him out, but he persisted, and
the accused gave him a blow with the stick on the right
side of the head above the ear. Held: When the aggression
is in retaliation for an insult, injury, or threat, the offender
cannot successfully claim self-defense, but at most he
can be given the benefit of the mitigating circumstance
under the provisions of paragraph 4 of Article 13. (U.S. vs.
9 Phil. 544 , 545-546)

2. When the deceased abused and ill-treated the accused by

kicking and cursing the latter, the accused who killed him
committed the crime with this mitigating circumstance.
(U.S. vs. 37 Phil. 133, 135)
3. When in his house the accused saw an unknown person
jump out of the window and his wife begged for his pardon
on her knees, he killed her. Such conduct on the part of
his wife constitutes a sufficient provocation to the accused.
(People vs. Marquez, 53 Phil. 260, 262-263)
4. Although there was no unlawful aggression, because the
challenge was accepted by the accused, and therefore there
was no self-defense, there was however the mitigating
circumstance of immediate provocation. In this case, the
deceased insulted the accused and then challenged the
latter. (U.S. vs. Cortes, 36 Phil. 837)
When the defendant sought the deceased, the challenge to
fight by the latter is not provocation.
Thus, if the defendant appeared in front of the
house of the deceased, after they had been separated by
other persons who prevented a fight between them, even
if the deceased challenged him to a fight upon seeing him
near his house, the defendant cannot be given the benefit of
the mitigating circumstance of provocation, because when
the defendant sought the deceased, the former was ready
and willing to fight. (U.S. vs. Mendac, 31 Phil. 240)
5. There was sufficient provocation on the part of the victim
where the latter hit the accused with his fist on the eye of

275
Art. 13 MITIGATING CIRCUMSTANCES
Par. 4 Provocation or Threat

the accused before the fight. (People vs. Manansala, Jr.,

31 SCRA 401)
6. The deceased, while intoxicated, found the accused lying
down without having prepared the evening meal. This
angered the deceased and he abused the accused by kick-
ing and cursing him. A struggle followed and the accused
stabbed him with a pen knife. The accused was entitled to
the mitigating circumstance that sufficient provocation or
threat immediately preceded the act. (U.S. vs. 37
Phil. 133)
The victim's act of kicking the accused on the chest prior
to the stabbing does not constitute unlawful aggression for
purposes of self-defense, but the act may be considered as
sufficient provocation on the victim's part, a mitigating
circumstance that may be considered in favor of the ac-
cused. (People vs. No. L-40757, Jan. 24, 1983,
120 SCRA 92, 102)

8. Thrusting his bolo at petitioner, threatening to kill him,

and hacking the bamboo walls of his house are, in our view,
sufficient provocation to enrage any man, or stir his rage
and obfuscate his thinking, more so when the lives of his
wife and children are in danger. Petitioner stabbed the vic-
tim as a result of those provocations, and while petitioner
was still in a fit of rage. In our view, there was sufficient
provocation and the circumstance of passion or obfuscation
attended the commission of the offense. vs. People,
G.R. No. 151978, July 14, 2004)

Provocation held not sufficient.

(a) When the injured party asked the accused for an explana-
tion for the latter's derogatory remarks against certain
ladies, the accused cannot properly claim that he was
provoked to kill. (People vs. Laude, 58 Phil. 933)
(b) While the accused was taking a walk at the New Luneta
one evening, the deceased met him and pointing his fin-
ger at the accused asked the latter what he was doing
there and then said: you know we are watching for
honeymooners here?" The accused drew out his knife and

276
 MITIGATING CIRCUMSTANCES
Art. 13
Provocation or Threat
Par. 4

stabbed the deceased who died as a consequence. Held:

The provocation made by the deceased was not sufficient.
(People vs. Nabora, 73 Phil. 434)
(c) The fact that the deceased (a public officer) had ordered
the arrest of the accused for misdemeanor is not such a
provocation within the meaning of this paragraph that
will be considered in mitigation of the penalty for the
crime of homicide committed by the accused who killed the
officer giving such order. (U.S. vs. Abijan, 1 Phil. 83) The
performance of a duty is not a source of provocation.
(d) Assuming for the sake of argument that the blowing of
horns, cutting of lanes or overtaking can be considered as
acts of provocation, the same were not sufficient. The word
means adequate to excite a person to commit a
wrong and must accordingly be proportionate to its gravity.
Moreover, the deceased's act of asking for the accused to
claim that he was provoked to kill or injure the deceased.
(People vs. Court of Appeals, et. G.R. No. 103613, Feb.
23 , 2001)

Provocation must originate from the offended party.

Where the alleged provocation did not come from the deceased
but from the latter's mother, the same may not be appreciated in
favor of the accused. (People vs. Reyes, No. Feb. 27, 1976,
69 SCRA 474, 481)
A and B were together. A hit C on the head with a piece of
stone from his sling-shot and ran away. As he could not overtake A,
C faced B and assaulted the latter. In this case, C is not entitled to
this mitigating circumstance, because B never gave the provocation
or took part in it.
The reason for the requirement is that the law says that the
provocation is "on the part of the offended party."
If during the fight between the accused and another person who
provoked the affair, the deceased merely approached to separate
them and did not give the accused any reason for attacking him, and
in attacking the other person the accused killed the deceased, the
provocation given by the other person cannot be taken as a mitigating
circumstance. (U.S. vs. Malabanan, 9 Phil. 262, 264)
277
Art. 13 MITIGATING CIRCUMSTANCES
Par. 4 Provocation or Threat

Difference between sufficient provocation as requisite

of incomplete self-defense and 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. (People
vs. Court of Appeals, et. G.R. No. 103613, Feb. 23, 2001)

The provocation by the deceased in the first stage the fight is not a miti-
gating circumstance when the accused killed him after he had fled.
The provocation given by the deceased at the commencement
of the fight is not a mitigating circumstance, where the deceased ran
away and the accused killed him while fleeing, because the deceased
from the moment he fled did not give any provocation for the accused
to pursue and to attack him. (People vs. Alconga, 78 Phil. 366, 370)

Provocation must be immediate to the commission of the

crime.
B e t w e e n the p rovocati on by the offended party and th e
commission of the crime by the person provoked, there should not be
any interval of time.
The reason for this requirement is that the law states that the
provocation "immediately preceded the When there is an interval
of time between the provocation and the commission of the crime, the
of the offended party could not have excited the accused to
the commission of the crime, he having had time to regain his reason
and to exercise self-control.
Provocation given by an adversary at the commencement and
during the first stage of a fight cannot be considered as mitigating
where the accused pursued and killed the former while fleeing, and
the deceased, from the moment he had fled after the first stage of
the fight to the moment he died, did not give any provocation for the
accused to pursue, much less further attack him. (People vs. Tan, No.
L-22697, Oct. 5, 1976, 73 SCRA 288, 294)
The provocation did not immediately precede the shooting. The
accused had almost a day to mull over the alleged provocation before
278
 MITIGATING CIRCUMSTANCES Art. 13
Provocation or Threat
Par. 4

he reacted by shooting the victim. The inevitable conclusion is that

he did not feel sufficiently provoked at the time the alleged provoca-
tion was made, and when he shot the victim the next day, it was a
deliberate act of vengeance and not the natural reaction of a human
being to immediately retaliate when provoked. (People vs. Benito,
No. L-32042, Feb. 13, 1975, 62 SCRA 351 , 357)

But see the case of People vs. et G.R. No. April

where one of the accused, after the provocation by the deceased
consisting in accusing him of having stolen two jack fruits from his tree
and summarily taking them from the sled of the accused, went home
and later returned fully armed and killed the deceased. Yet, it was held
that the provocation should be considered in favor of the accused.

There seems to be a misapplication of the rule in this case. This

ruling would be correct if the accusation that the accused stole the
jack fruits be considered as a grave offense instead of provocation,
because an interval of time between the grave offense and the com-
mission of the crime is allowed in such a case.

Threat immediately preceded the act.

Thus, if A was threatened by B with bodily harm and because
of the threat, A immediately attacked and injured B, there was a
mitigating circumstance of threat immediately preceding the act.
The threat should not be offensive and positively strong, because, if
it is, the threat to inflict real injury is an unlawful aggression which may
give rise to self-defense. (U.S. vs. Guysayco, 13 Phil. 292, 295-296)

Vague threats not sufficient.

The victim's mere utterance, "If you do not agree, beware,"
without further proof that he was bent upon translating his vague
threats into immediate action, is not sufficient.
But where the victims shouted at the accused, "Follow us if you
dare and we will kill you," there is sufficient threat.

Basis of paragraph 4.
The mitigating circumstance in paragraph 4 of Art. is based
on the diminution of intelligence and intent.

279
 Art. 13 MITIGATING CIRCUMSTANCES
Par. 5 Vindication of Grave Offense

Par. 5. — That the act was committed in the immediate

vindication a grave offense to the one committing the
felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or
relatives by affinity within the same degrees.
Requisites:
That there be a grave offense done to the one committing
the felony, his spouse, ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or relatives by
affinity within the same degrees;
That the felony is committed in vindication of such grave
offense. A lapse of time is allowed between the vindication
and the doing of the grave offense.

Illustrations:
Being accused by the victim that the accused stole the
former's rooster which made the latter feel deeply embar-
rassed, and the encounter took place in about half an hour's
time. (People vs. Pongol, C.A., 66 O.G. 5617, citing People
vs. 95 Phil. 398)
2 . Stabbing to death the son of the accused which most
naturally and logically must have enraged and obfuscated
him that, seized by that feeling of hatred and rancour, he
stabbed indiscriminately the people around. (People vs.
Doniego, No. Nov. 29, 1963, 9 SCRA 541 , 546,
547)

A lapse of time is allowed between the grave offense and the

vindication.
The word "immediate" used in the English text is not the correct
translation. The Spanish text uses The fact that the
accused was slapped by the deceased in the presence of many persons
a few hours before the former killed the latter, was considered a
mitigating circumstance that the act was committed in the immediate
vindication of a grave offense. Although the grave offense (slapping
of the accused by the deceased), which engendered perturbation of
mind, was not so immediate, it was held that the influence thereof,

280
 MITIGATING CIRCUMSTANCES Art. 13
Vindication of Grave Offense Par. 5

by reason of its gravity and the circumstances under which it was

inflicted, lasted until the moment the crime was committed. (People
vs. Parana, 64 Phil. 331 , 337)

In the case People vs. Palaan, G.R. No. 34976, Aug.

unpublished, the killing of the paramour by the offended husband
one day after the adultery was considered still proximate.

In the case of People vs. Diokno, 63 Phil. the lapse of time

between the grave offense (abducting the daughter of the accused by
the deceased) and the vindication (killing of the deceased) was two
or three days.
In this case, the Supreme Court said —

"The presence of the fifth mitigating circumstance of Article

13 of the Revised Penal Code, that is, immediate vindication
of a grave offense may be taken into consideration in favor
of the two accused, because although the elopement took place
on January 4, 1935 , and the aggression on the 7th of said
month and year, the offense did not cease while (the abducted
daughter's) whereabouts remained unknown and her marriage
to the deceased unlegalized. Therefore, there was no interruption
from the time the offense was committed to the vindication
thereof. (The) accused belongs to a family of old customs to whom
the elopement of a daughter with a man constitutes a grave
offense to their honor and causes disturbance of the peace and
tranquility of the home and at the same time spreads uneasiness
and anxiety in the minds of the members thereof." (p. 608)

Interval of time negating vindication.

1. Approximately nine (9) months before the killing, the deceased
boxed the accused several times in the face resulting in the
conviction of the deceased for less serious physical injuries. He
appealed, pending which the accused killed him. It cannot be
said that the second incident was an immediate or a proximate
vindication of the first. (People vs. Lumayag, No. March
31 , 1965, 13 SCRA 502, 507-508)
2. The deceased uttered the following remark at eleven o'clock in
the morning in the presence of the accused and his officemates:
"Nag-iistambay dito ang or "Hindi ko

281
Art. 13 MITIGATING CIRCUMSTANCES
Par. 5 Vindication of Grave Offense

na Civil Service ay istambayan At

five o'clock in the afternoon of the same day, the accused killed
the deceased. The mitigating circumstance of vindication of a
grave offense does not avail. (People vs. Benito, No. L-32042,
Dec. 17, 1976, 74 SCRA 271 , 279, 282-283)
3. Where the accused heard the deceased say that the accused's
daughter is a flirt, and the accused stabbed the victim two
months later, the mi ti ga ti n g circu mstance of i m me d i at e
vindication of a grave offense cannot be considered in favor of
accused because he had sufficient time to recover his serenity.
The supposed vindication did not immediately or proximately
follow the alleged insulting and provocative remarks. (People
vs. Lopez, G.R. No. 136861, November 15, 2000)

Distinguish provocation from vindication.

In the case of provocation, it is made directly only to the person
committing the felony; in vindication, the grave offense may be
committed also against the offender's relatives mentioned by
the law.
2. In vindication, the offended party must have done a grave of-
fense to the offender or his relatives mentioned by the law; in
provocation, the cause that brought about the provocation need
not be a grave offense.
In provocation, it is necessary that the provocation or threat
immediately preceded the act, i.e., that there be no interval of
time between the provocation and the commission of the crime;
while in vindication, the vindication of the grave offense may
be proximate, which admits of an interval of time between the
grave offense done by the offended party and the commission of
the crime by the accused.

Reason for the difference.

This greater leniency in the case of vindication is due undoubt-
edly to the fact that it concerns the honor of a person, an offense which
is more worthy of consideration than mere spite against the one giving
the provocation or threat.

Killing a relative is a grave offense.

It was most natural and logical for the appellant to have been
enraged and obfuscated at the sight of his dead son and seized by

282
 MITIGATING CIRCUMSTANCES Art. 13
Vindication of Grave Offense
Par. 5

that feeling of hatred and rancour, to have stabbed indiscriminately

the people around x x x.
On the other hand, the attenuating circumstance of immediate
vindication of a grave stabbing of his son to death,
or of having committed the crime upon an impulse so powerful as
naturally to have produced passion or obfuscation, may be deemed
to have attended the commission of the crime alternatively, because
both mitigating circumstances cannot co-exist. (People vs.
9 SCRA 541)

Basis to determine the gravity of offense in vindication.

The question whether or not a certain personal offense is grave
must be decided by the court, having in mind the social standing of
the person, the place, and the time when the insult was made. (See
People vs. Ruiz, 93 SCRA 739, where the rule was applied.)
During a fiesta, an old man 70 years of age asked the deceased
for some roast pig. In the presence of many guests, the deceased
insulted the old man, saying: "There is no more. Come here and I will
make roast pig of you." A little later, while the deceased was squatting
down, the old man came up behind him and struck him on the head
with an ax. Held: While it may be mere trifle to an average person,
it evidently was a serious matter to an old man, to be made the butt
of a joke in the presence of so many guests. The accused was given
the benefit of the mitigating circumstance of vindication of a grave
offense. (U.S. vs. 37 Phil. 201)
In that case, the age of the accused and the place were considered
in determining the gravity of the offense.

Considered grave offense:

Sarcastic remark implying that the accused was a petty
tyrant.
The offended party, a volunteer worker to repair
an abandoned road, arrived in the afternoon when the
work should have started in the morning. Inquired by the
accused, the man in charge of the work, why he came late,
the offended party retorted sarcastically: "Perhaps during
the Spanish regime when one comes late, he is punished."

283
Art. 13 MITIGATING CIRCUMSTANCES
Par. 5 Vindication of Grave Offense

Infuriated at the reply, the accused fired his gun but did
not hit the offended party. (People vs. Batiquin, 40
O.G. 987)
2. Remark of the injured party before the guests that accused
lived at the expense of his wife. (People vs. 66 Phil.
323) The place was taken into consideration in that case.
3. Taking into account that the American forces had just
occupied Manila, it is not strange that the accused should
have considered it then as a grave offense whe n the
offended party said: are a Japanese spy." (People vs.
Luna, 76 Phil. 101, 105)
The time was taken into consideration in that case.
4. If a person kills another for having found him in the act
of committing an attempt against his (accused's) wife, he
is entitled to the benefits of this circumstance of having
acted in vindication of a grave offense against his and his
wife's honor. (U.S. vs. Alcasid, 1 Phil. 86; See also U.S. vs.
Davis, Phil. 96, 99)

Where the injured party had insulted the father of the accused
by contemptuously telling him: "Phse, lalake"
(Pshaw, you are but a shrimp), the accused who attacked the
injured party acted in vindication of a grave offense to his
father. (People vs. David, 60 Phil. 93,

The provocation should be proportionate to the damage

caused by the act and adequate to stir one to its
commission.
Aside from the fact that the provocation should immediately
precede the commission of the offense, it should also be proportionate
to the damage caused by the act and adequate to stir one to its com-
mission. The remark attributed to the deceased that the daughter of
the accused is a flirt does not warrant and justify the act of accused
in slaying the victim. (People vs. Lopez, G.R. No. 136861, November
15, 2000)

Basis of paragraph 5.
The mitigating circumstance in paragraph 5 of Art. 13 is based
on the diminution of the conditions of voluntariness.
284
 MITIGATING CIRCUMSTANCES Art. 13
Passion or Obfuscation Par. 6

Grave offense must be directed to the accused.

The supposed grave offense done by the victim was an alleged
remark made in the presence of the accused that the Civil Service
Commission is a hangout of thieves. The accused felt alluded to
because he was facing then criminal and administrative charges on
several counts involving his honesty and integrity.

The remark itself was general in nature and not specifically

directed to the accused. If he felt alluded to by a remark which he
personally considered insulting to him, that was his own individual
reaction thereto. Other people in the vicinity who might have heard
the remark could not have possibly known that the victim was
insulting the accused unless they were aware of the background of
the criminal and administrative charges involving moral turpitude
pending against the accused. The remark cannot be considered a
grave offense against the accused. (People vs. Benito, No. L-32042,
Feb. 62 SCRA 351 , 355-356)

Vindication of a grave offense incompatible with passion or

obfuscation.
Vindication of a grave offense and passion or obfuscation cannot
be counted separately and independently. (People vs. Dagatan, 106
Phil. 88, 98)

Par. 6. — That of having acted upon an impulse so powerful as

naturally to have produced passion or obfuscation.

This paragraph requires that —

The accused acted upon an impulse.
2. The impulse must be so powerful that it naturally produced
passion or obfuscation in him.

Why passion or obfuscation is mitigating.

When there are causes naturally producing in a person powerful
excitement, he loses his reason and self-control, thereby diminish-
ing the exercise of his will power. (U.S. vs. Salandanan, 1 Phil. 464,
465)

285
 Art. 13 MITIGATING CIRCUMSTANCES
Par. 6 Passion or Obfuscation

Rule for the application of this paragraph.

Passion or obfuscation may constitute a mitigating circumstance
only when the same arose from lawful sentiments.
For this reason, even if there is actually passion or obfuscation
on the part of the offender, there is no mitigating circumstance,
when:
(1) The act is committed in a spirit lawlessness; or
(2) The act is committed in a spirit of revenge.

Requisites of the mitigating circumstance of passion or obfuscation:

That there be an act, both unlawful and sufficient to produce
such a condition of mind; and
2. That said act which produced the obfuscation was not far
removed from the commission of the crime by a considerable
length of time, during which the perpetrator might recover
his normal equanimity. (People vs. Alanguilang, 52 Phil.
663 , 665, citing earlier cases; People vs. 108 Phil.
730, 743; People vs. Nos. May 16,
SCRA 123, 134)

The act of the offended party must be unlawful or unjust.

The crime committed by the accused must be provoked by prior
unjust or improper acts of the injured party. (U.S. vs. Taylor, 6 Phil.
162, 163)
Thus, a common-law wife, who, having left the common home,
refused to go home with the accused, was acting within her rights,
and the accused (the common-law husband) had no legitimate right
to compel her to go with him. The act of the deceased in refusing
to go home with the accused, while provocative, nevertheless was
insufficient to produce the passion and obfuscation that the law
contemplates. (People vs. Quijano, C.A., 50 O.G. 5819)
But where the accused killed his wife on the occasion when she
visited her aunt's husband, this mitigating circumstance was held
to be applicable, having in mind the jealousy of the accused and her
refusal to return to his house until after the arrival of her uncle. (U.S.
vs. 38 Phil. 341 , 344-345)

286
 MITIGATING CIRCUMSTANCES
Art. 13
Passion or Obfuscation
Par. 6

The mitigating circumstance of having acted under an impulse

so powerful as to have produced passion and obfuscation should be
considered in favor of the owner who, upon seeing the person who
stole his carabao, shoots the supposed thief. (People vs. et
al, C.A., 39 O.G. 1288)
The act of the deceased in creating trouble during the wake of
the departed father of defendant-appellant scandalizes the mourners
and offends the sensibilities of the grieving family. Considering that
the trouble created by the deceased was both unlawful and sufficient
to infuriate accused-appellant, his guilt is mitigated by passion or
obfuscation. (People vs. Samonte, Jr., No. June 11, 1975,
64 SCRA 319, 329-330)
The accused is entitled to the mitigating circumstance of passion
or obfuscation where he hit the deceased upon seeing the latter box
his 4-year-old son. The actuation of the accused arose from a natural
instinct that impels a father to to the rescue of a beleaguered
son, regardless of whether the latter be right or wrong. (People vs.
Castro, No. L-38989, Oct. 29, 1982, 117 SCRA 1014, 1020)

Exercise of a right or fulfillment of duty is not proper

source of passion or obfuscation.
The accused killed the deceased when the latter was about to
take the carabao of the accused to the barrio lieutenant. Held: The
action of the deceased in taking the carabao of the accused to him
and demanding payment for the sugar cane destroyed by that carabao
and in taking the carabao to the barrio lieutenant when the accused
refused to pay, was perfectly legal and proper and constituted no
reasonable cause for provocation to the accused. The finding that
the accused acted upon an impulse so powerful as naturally to
have produced passion or obfuscation was not justified, because the
deceased was clearly within his rights in what he did. (People vs.
et 58 Phil. 393)
Since the mother of the child, killed by the accused, had the
perfect right to reprimand the said accused for indecently converting
the family's bedroom into a rendezvous of herself and her lover, the
said accused cannot properly invoke the mitigating circumstance of
passion or obfuscation to minimize her liability for the murder of the
child. (People vs. Caliso, 58 Phil. 283)

287
Art. 13 MITIGATING CIRCUMSTANCES
Par. 6 Passion or Obfuscation

Where the accused was making a disturbance on a public street

and a policeman came to arrest him, the anger and indignation of
the accused resulting from the arrest cannot be considered passion
or obfuscation, because the policeman was performing a lawful act.
(U.S. vs. Taylor, 6 Phil. 162)

The act must be sufficient to produce such a condition of

mind.
If the cause of the loss of self-control was trivial and slight, as
when the victim failed to work on the hacienda of which the accused
was the overseer, or where the accused saw the injured party picking
fruits from the tree claimed by the former, the obfuscation is not
mitigating. (U.S. vs. Diaz, 15 Phil. 123; People vs. C.A., 44
O.G. 102)

No passion or obfuscation after 24 hours, or several hours

or half an hour.
There could have been no mitigating circumstance of passion or
obfuscation when more than 24 hours elapsed between the alleged
insult and the commission of the felony (People vs. 37 Phil.
486, 490), or if several hours passed between the cause of passion or
obfuscation and the commission of the crime (People vs. 92
Phil. or where at least an hour intervened between the
previous fight and subsequent killing of the deceased by the accused.
(People vs. Matbagon, 60 Phil. 887, 890)

Although the fact that accused was subjected by the deceased

to a treatment (being slapped and asked to kneel down) offensive to
his dignity could give rise to the feeling of passion or obfuscation,
the same cannot be treated as a mitigating circumstance where the
killing took place one month and five days later. (People vs. Mojica,
No. L-30742, April 30, 1976, 70 SCRA 502, 509)
It is error to consider for the accused, passion or obfuscation,
where the newspaper articles written by the victim assailing the
former's official integrity have been published for an appreciable
period long enough for pause and reflection. (People vs. Pareja, No.
Nov. 29, 1969, 30 SCRA 693 , 716-717)
The circumstance is unavailing where the killing took place four
days after the stabbing of the accused's kin. (People vs. Constantino,
No. L-23558, Aug. 10, 1967, 20 SCRA 940, 949)

288
 MITIGATING CIRCUMSTANCES Art. 13
or Obfuscation Par. 6

The reason for these rulings is that the act producing the obfus-
cation must not be far removed from the commission of the crime by
a considerable length of time, during which the accused might have
recovered his normal equanimity.

The defense must prove that the act which produced passion or ob-
fuscation took place at a time not far removed from the commission
of the crime.
The accused claimed that he had not been regularly paid his
wages by the victims who, he claimed further, used to scold him
and beat him; but he failed to prove that those acts which produced
passion and obfuscation in him took place at a time not far removed
from the commission of the crime which would justify an inference
that after his passion had been aroused, he had no time to reflect
and cool off. Mitigation does not avail him. (People vs. No.
August 30, 1968, 24 SCRA 960, 977)

For the circumstance to exist, it is necessary that the act which

gave rise to the obfuscation be not removed from the commission of
the offense by a considerable length of time, during which period the
perpetrator might recover his normal equanimity. (People vs.
No. Oct. 30 SCRA 92, 95-96)

The crime committed must be the result a sudden impulse of natural

and uncontrollable fury.
Obfuscation cannot be mitigating in a crime which was planned
and calmly meditated or if the impulse upon which the accused acted
was deliberately fomented by him for a considerable period of time.
(People vs. Daos, 60 Phil. People vs. Hernandez, 43 Phil. 104,

The circumstance of passion and obfuscation cannot be miti-

gating in a crime which is planned and calmly meditated before its
execution. (People vs. No. L-32040, Oct. 25, 1977, 79 SCRA
570, 575)
There is neither passion and obfuscation nor proximate vindica-
tion of a grave offense where the killing of the decedent was made four
days after the stabbing of the appellant's kin. Moreover, vengeance
is not a lawful sentiment. (People vs. Constantino, et G.R. No.
August 10, 1967)
289
Art. 13 MITIGATING CIRCUMSTANCES
Par. 6 Passion or Obfuscation

Passion or obfuscation must arise from lawful sentiments.

1. The case of U.S. vs. Hicks, 14 Phil.

Facts: For about 5 years, the accused and the deceased

lived illicitly in the manner of husband and wife. After-
wards, the deceased separated from the accused and lived
with another man. The accused enraged by such conduct,
killed the deceased.
Held: Even if it is true that the accused acted
with obfuscation because of jealousy, the mitigatin g
circumstance cannot be considered in his favor because
the causes which mitigate criminal responsibility for the
loss of self-control are such which originate from legitimate
feelings, and not those which arise from vicious, unworthy
and immoral passions.
2.
But the ruling in the case Hicks should be distinguished
from the case where the accused, in the heat of passion,
killed his common-law wife upon discovering her in flagrante
in carnal communication with a common acquaintance. It
was held in such a case that the accused was entitled to the
mitigating circumstance of passion or obfuscation, because
the impulse was caused by the sudden revelation that she
was untrue to him, and his discovery of her in flagrante
in the arms of another. (U.S. vs. De la Cruz, 22 Phil. 429)
In U.S. vs. Hicks, the cause of passion and obfuscation of
the accused was his vexation, disappointment and anger
engendered by the refusal of the woman to continue to live
in illicit relations with him, which she had a perfect right
to do.
The act of the deceased in refusing to go home with the
appellant, while provocative, nevertheless was insufficient
to produce such passion or obfuscation in the latter as would
entitle him to the benefits of that mitigating circumstance.
Not being a legitimate husband of the deceased, the appel-
lant had no legitimate right to compel her to go with him.
The deceased was acting within her rights. The obfuscation
which the appellant allegedly possessed him, granting that
he in fact had that feeling, did not originate from a legitimate
cause. (People vs. C.A., 50 O.G. 5819)

290
 MITIGATING CIRCUMSTANCES
Art. 13
Passion or Obfuscation
Par. 6

3.
The case of People vs. (C.A.) 47 O.G. 4306.
Facts: The accused, as common-law wife, lived with
the deceased for 15 years, whose house she helped support.
Later, the deceased married another woman. The accused
killed
Held: Although it was held in the Hicks case that "the
causes which produce in the mind loss of reason and self-
control and which lessen criminal responsibility are those
which originate from lawful sentiments, not those which
arise from vicious, unworthy and immoral yet
such is not the case here where the fact that the accused
lived for 15 long years as the real wife of the deceased,
whose house she helped to support, could not but arouse
that natural feeling of despair in the woman who saw her
life broken and found herself abandoned by the very man
whom she considered for so long a time as her husband and
for whom she had made so many The mitigating
circumstance of passion or obfuscation was considered in
favor of the accused.
4.
. Marciano Martin and Beatriz without
being joined in lawful wedlock, lived as husband and
wife for three or four years until Marciano left their
common dwelling. Beatriz stabbed him with a pen-
knife. When asked why she wounded Marciano, she
replied that Mar- ciano "after having taken advantage
of her" abandoned her. It was held that the
mitigating circumstance of obfuscation should be taken
into consideration in favor of the accused, in view of the
peculiar circumstances of the case and the harsh
treatment which the deceased gave her a short time
before she stabbed him. (People vs. Yuman, 61 Phil.
786)
5.
The defense submits that the accused is entitled to the
mitigating circumstance of having acted on a provocation
sufficiently strong to cause passion and obfuscation, because
the deceased's flat of the entreaties of the accused
for her to quit her calling as a hostess and return to their
former relation, aggravated by her sneering statement
that the accused was penniless and invalid, provoked the
291
Art. 13 MITIGATING CIRCUMSTANCES
Par. 6 Passion or Obfuscation

accused into losing his head and stabbing the deceased.

It appears that the accused had previously reproved the
deceased for allowing herself to be caressed by a stranger.
Her loose conduct was forcibly driven home to the accused
by the remark of one on the very day of the crime
that the accused was the husband wife was being
used by one Maring for purposes of prostitution," a remark
that so deeply wounded the feelings of the accused that
he was driven to consume a large amount of wine before
visiting Alicia (deceased) to plead with her to leave her
work. Alicia's insulting refusal to renew her liaison with
the accused, therefore, was not motivated by any desire to
lead a chaste life henceforth, but showed her determination
to pursue a lucrative profession that permitted her to
distribute her favors indiscriminately. It was held that
the accused's insistence that she live with him again, and
his rage at her rejection of the proposal cannot be properly
qualified as arising from immoral and unworthy passions.
Even without benefit of wedlock, a monogamous liaison
appears morally of a higher level than gainful promiscuity.
(People vs. No. Feb. SCRA 298,
302-303)
6.
. P a s si o n or ob fu scati on mu s t ori gin ate from
lawful sentiments, not from the fact that, for example,
the girl's sweetheart killed the girl's father and brother
because the girl's parents objected to their getting married
and the girl consequently broke off their relationship.
Such an act is actuated more by a spirit of lawlessness and
revenge rather than any sudden and legitimate impulse
of natural and uncontrollable fury. (People vs.
Nos. May SCRA 123, 133, 134)

In spirit of lawlessness.
The accused who raped a woman is not entitled to the mitigat-
ing circumstance of acted upon an impulse so powerful as
naturally to have produced just because he finds himself in
a secluded place with that young ravishing woman, almost naked,
and therefore, to succumb to the uncontrollable passion of his
bestial instinct." (People vs. Sanico, C.A., 46 O.G. 98)

292
 MITIGATING CIRCUMSTANCES
Art. 13
Passion or Obfuscation
Par. 6

In a spirit of revenge.
A taking care of a child, poisoned the child
with acid. She did it, because sometime before the killing of the child,
the mother of the child, having surprised her (accused) with a man
on the bed of the master, had scolded her. She invoked the mitigating
circumstance of passion or obfuscation resulting from that scolding
by the mother of the child. Held: She cannot be credited with such
mitigating circumstance. She was actuated more by spirit of law-
lessness and revenge than by any sudden impulse of natural and
uncontrollable fury. (People vs. Caliso, 58 Phil. 283 , 295)

Passion and obfuscation may not be properly appreciated in

favor of appellant. To be considered as a mitigating circumstance,
passion or obfuscation must arise from lawful sentiments and not
from a spirit of lawlessness or revenge or from anger and resentment.
In the present case, clearly, Marcelo was infuriated upon seeing his
brother, Carlito, shot by Jose. However, a distinction must be made
between the first time that Marcelo hacked Jose and the second time
that the former hacked the latter. When Marcelo hacked Jose right
after seeing the latter shoot at Carlito, and if appellant refrained
from doing anything else after than, he could have validly invoked
the mitigating circumstance of passion and obfuscation. But when,
upon seeing his brother Carlito dead, Marcelo went back to Jose,
who by then was already prostrate on the ground and hardly moving,
hacking Jose again was a clear case of someone acting out of anger
in the spirit of revenge. (People vs. Bates, G.R. No. 139907, March

The offender must act under the impulse of special motives.

Excitement is the natural feeling of all persons engaged in a fight,
especially those who had received a beating, and the impulse in that
state is not considered in law so powerful as to produce obfuscation
sufficient to mitigate liability. (People vs. De Guia, C.A., 36 O.G.
1151)
Two individuals had been wrestling together and after being
separated, one of them followed up the other and wounded him with
a knife as he was entering a vehicle. Held: The aggressor cannot
claim in his favor that the previous struggle produced in him entire
loss of reason or self-control, for the existence of such excitement as

293
Art. 13 MITIGATING CIRCUMSTANCES
Par. 6 Passion or Obfuscation

is inherent in all who quarrel and come to blows does not constitute
a mitigating circumstance. The guilty party must have acted under
the impulse of special motives. (U.S. vs. Herrera, 13 Phil. U.S.
vs. Fitzgerald, 2 Phil. 419)

But the ruling is different in the following case:

While the Attorney-General hesitates to accept the conclusion
of the lower court with reference to the attenuating circumstances
of unjust provocation and arrebato y obcecacion, we are inclined to
accept that theory. The record discloses that each used very insulting
language concerning the other and that they must have been very
greatly excited as a result of the quarrel, or otherwise the other
people present would not have intervened. The acts complained of
were committed by the defendant soon after the quarrel had taken
place. (People vs. Flores, 50 Phil. 548)

Illustration of impulse of special motives.

The accused killed P, because the latter did not deliver the letter
of F to A, on which (letter) the accused had pinned his hopes of settling
the case against him amicably. The failure of P to deliver the letter is
a prior unjust and improper act sufficient to produce great excitement
and passion in the accused as to confuse his reason and impel him
to kill P. It was a legitimate and natural cause of indignation and
anger. (People vs. Mil, 92 SCRA 89)

Obfuscation arising from jealousy.

The mitigating circumstance of obfuscation arising from jealousy
cannot be invoked in favor of the accused whose relationship with the
woman (his common-law wife) was illegitimate. (People vs. Salazar,
105 Phil. 1058, citing U.S. vs. Hicks, 14 Phil. 217; People vs. Olgado,
et L-4406, March 31 , 1952)
Where the killing of the deceased by the accused arose out
of rivalry for the hand of a woman , passion or obfuscation is
mitigating.
The feeling of resentment resulting from rivalry in amorous rela-
tions with a woman is a powerful instigator of jealousy and prone to
produce anger and obfuscation. (People vs. Marasigan, 70 Phil. 583;
People vs. Macabangon, 63 Phil. 1062)

294
 MITIGATING CIRCUMSTANCES Art. 13
Passion or Obfuscation Par. 6

In an early case, it was held that the loss of reason and self-
control due to jealousy between rival lovers was not mitigating. (U.S.
vs. De la 12 Phil. 698)

Obfuscation — when relationship is illegitimate — not miti-

gating.
The relations of the accused with Rianzales were ille-
gitimate. The injured party made indecent propositions to her which
provoked the accused. The accused attacked the injured party. The
obfuscation of the accused is not mitigating, because his relations
with Rosario Rianzales were illegitimate. (People vs. Olgado, et
G.R. No. L-4406, March 31 , 1952)

The cause producing passion or obfuscation must come from

the offended party.
The two sons, believing that S would inflict other wounds upon
their father, who was already wounded, in defense of their father, im-
mediately killed Under this great excitement, the two sons also pro-
ceeded to attack and did kill C who was near the scene at the time.
Held: Since C had taken no part in the quarrel and had not in
any manner provoked the sons, passion or obfuscation cannot miti-
gate their liability with respect to the killing of This extenuating
circumstance is applied to reduce the penalty in cases where the
provocation which caused the heated passion was made by the injured
party. (U.S. vs. et 17 Phil. 260)
Where passion or obfuscation of the accused is not caused by
the offended party but by the latter's relatives who mauled the wife
of the accused, the same may not be considered as a mitigating cir-
cumstance in his favor. (People vs. Lao, C.A., 64 O.G. 7873)

May passion or obfuscation lawfully arise from causes exist-

ing only in the honest belief of the offender?
Yes.
(1) Thus, the belief of the defendant that the deceased had
caused his dismissal from his employment is sufficient to
confuse his reason and impel him to commit the crime.
(U.S. vs. Ferrer, 1 Phil. 56, 62)

295
Art. 13 MITIGATING CIRCUMSTANCES
Par. 6 Passion or Obfuscation

(2) It has also been held that the belief entertained in good
faith by the defendants that the deceased cast upon their
mother a spell of witchcraft which was the cause of her
serious illness, is so powerful a motive as to naturally
produce passion or obfuscation. (U.S. vs. Macalintal, 2 Phil.
448, 451; People vs. Zapata, 107 Phil. 103, 109)
(3) One of the accused, a self-anointed representative of God who
claims supernatural powers, demanded of the deceased kiss
and awake her dead sister who, she said, was merely asleep.
The deceased, an old lady, refused. The accused thought that
the deceased had become a devil. Then she commanded her
companions to surround the deceased and pray to drive the
evil spirits away, but, allegedly without success. The accused
barked an order to beat the victim to death as she had turned
into Satan or Lucifer. Held: The accused and her sisters are
entitled to the mitigating circumstance of passion or obfusca-
tion. Her order to kiss and awake her sister was challenged
by the victim. This generated a false belief in the minds of
the three sisters that in the victim's person resided the evil
spirit — Satan or Lucifer. And this triggered "an impulse so
powerful as naturally to have produced passion or obfusca-
tion." (People vs. Torres, 3 CAR [2s] 43, 56, 57)

Basis of paragraph 6.
Passion or obfuscation is a mitigating circumstance because the
offender who acts with passion or obfuscation suffers a diminution of
his intelligence and intent.

Provocation and obfuscation arising from one and the same

cause should be treated as only one mitigating circumstance.
Since the alleged provocation which caused the obfuscation
of the appellants arose from the same incident, that is, the alleged
maltreatment and/or ill-treatment of the appellants by the deceased,
those two mitigating circumstances cannot be considered as two
distinct and separate circumstances but should be treated as one.
(People vs. No. L-32040, Oct. 25, 1977, 79 SCRA 570, 575)
Thus, where the accused killed his wife during a quarrel, because
he, who had no work, resented her suggestion to join her brother in

296
 MITIGATING CIRCUMSTANCES
Art. 13
Passion or Obfuscation
Par. 6

the business of cutting logs, the court erred in considering in favor

of the accused the two mitigating circumstances of provocation and
obfuscation.

Vindication of grave offense cannot co-exist with passion

and obfuscation.
In the case of People vs. Yaon, C.A., 43 O.G. 4142, it was held
that if the accused assailed his victim in the proximate vindication of
a grave offense, he cannot successfully allege that he was also, in the
same breath, blinded by passion and obfuscation, because these two
mitigating circumstances cannot both exist and be based on one and
the same fact or motive. At most, only one of them could be considered
in favor of the appellant, but not both simultaneously. Viada, citing
more than one dozen cases, says that it is the constant doctrine of
the Spanish Supreme Court that one single fact cannot be made the
basis of different modifying circumstances.

Exception — When there are other facts, although closely

connected.
But where there are other facts, although closely connected
with the fact upon which one circumstance is premised, the other
circumstance may be appreciated as based on the other fact. (People
vs. 63 Phil. 601)
Thus, where the deceased, a Chinaman, had eloped with the
daughter of the accused, and later when the deceased saw the accused
coming, the deceased ran upstairs in his house, there are two facts
which are closely connected, namely: elopement, which is a grave
offense to a family of old customs, and (2) refusal to deal with him, a
stimulus strong enough to produce in his mind a fit of passion. Two
mitigating circumstances of (1) vindication, and (2) passion were
considered in favor of the accused. The mitigating circumstance of
vindication of a grave offense was based on the fact of elopement and
that of passion on the fact that the deceased, instead of meeting him
and asking for forgiveness, ran away from the accused.

Passion or obfuscation compatible with lack of intention

to commit so grave a wrong.
So, it has been held in People vs. 5 CAR [2s] 507, 515.

297
Art. 13 MITIGATING CIRCUMSTANCES
Par. 6 Passion or Obfuscation

Passion or obfuscation incompatible with treachery.

Passion or obfuscation cannot co-exist with treachery, for while
in the mitigating circumstance of passion or obfuscation the offender
loses his reason and self-control, in the aggravating circumstance of
treachery, the mode of attack must be consciously adopted. One who
loses his reason and self-control cannot deliberately employ a par-
ticular means, method or form of attack in the execution of a crime.
(People vs. Wong, 18 CAR [2s] 934, 940-941)

Vindication or obfuscation cannot be considered when the person

attacked is not the one who gave cause therefor.
Vindication and obfuscation cannot be considered, not only
because the elopement of Lucila Dagatan with Eleuterio Yara
and her ab an d on men t by the latter took place long before the
commission of the crime, but also because the deceased was not
the one who eloped with and abandoned her. (People vs. Dagatan ,
et 106 Phil. 88)

Passion and obfuscation cannot co-exist with evident pre-

meditation.
The aggravating circumstance of evident premeditation cannot
co-exist with the circumstance of passion and obfuscation. The essence
of premeditation is that the execution of the criminal act must be
preceded by calm thought and reflection upon the resolution to carry
out the criminal intent during the space of time sufficent to arrive
at a composed judgment. (People vs. et. G.R. No. L-32040,
Oct. 25, 1977)

Passion or obfuscation distinguished from irresistible force.

While passion or obfuscation is a mitigating circumstance,
irresistible force is an exempting circumstance.
2. Passion or obfuscation cannot give rise to an irresistible
force because irresistible force requires physical force.
3. Passion or obfuscation, is in the offender himself, while
irresistible force must come from a third person.
4. Passion or obfuscation must arise from lawful sentiments;
whereas, the irresistible force is unlawful.

298
 MITIGATING CIRCUMSTANCES Art. 13
Surrender and of Guilt Par. 7

Passion or obfuscation distinguished from provocation.

Provocation comes from the injured party; passion or ob-
fuscation is produced by an impulse which may be caused
by provocation.

2. Provocation must immediately precede the commission

of the crime; in passion or the offense which
engenders perturbation of mind need not be immediate. It
is only required that the influence thereof lasts until the
moment the crime is committed.

3. In both, the effect is the loss of reason and self-control on

the part of the offender.

Par. 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 mitigating circumstances are provided in this paragraph.

1. Volun tary 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.
Although these circumstances are considered mitigating in the
same subsection of Article 13, when both are present, they should
have the effect of mitigating as two independent circumstances. If any
of them must mitigate the penalty to a certain extent, when both are
present, they should produce this effect to a greater extent. (People
vs. Fontabla, 61 Phil. 589, 590)

Requisites of voluntary surrender.

a. That the offender had not been actually arrested.
b. That the offender surrendered himself to a person in
authority or to the latter's agent.
That the surrender was voluntary. (Estacio vs.
bayan, G.R. No. 75362, March 6, 1990, 183 SCRA 12, 24,

299
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

citing People vs. 138 SCRA 141, 145 and People

vs. Hanasan, No. L-25989, Sept. 30, 1969, 29 SCRA 534,
541-542)

Requisite of
For voluntary surrender to be appreciated, the same must be
spontaneous in such a manner that it shows the interest of the accused
to surrender unconditionally to the authorities, either because he
acknowledged his guilt or because he wishes to save them the trouble
and expenses necessarily incurred in his search and capture. (People
vs.No.Aug People vs.61 Phil. 27) . 30, 1968, 24 SCRA 960, 977, citing

Merely requesting a policeman to accompany the accused to

the police headquarters is not equivalent to the requirement that
he "voluntarily surrendered himself to a person in authority or his
agents." The accused must actually surrender his own person to the
authorities, admitting complicity in the crime. His conduct, after the
commission of the crime, must indicate a desire on his part to own
the responsibility for the crime. (People vs. Flores, 21 CAR [2s] 417 ,
424-425)

Cases of voluntary surrender.

1. The accused, after p lu n gin g a bolo into the victim' s
chest, ran toward the municipal building. Upon seeing a
patrolman, he immediately threw away his bolo, raised his
two hands, offered no resistance and said to the patrolman
"here is my bolo, I stabbed the victim." There was intent or
desire to surrender voluntarily to the authorities. (People
vs. No. March 30, 1962, 4 SCRA 700,
703)
2. After the commission of the crime, the accused fled to a
hotel to hide not from the police authorities but from the
companions of the deceased who pursued him to the hotel
but could not get to him because the door was closed after
the accused had entered. Once in the hotel, the accused
dropped his weapon at the door and when the policemen
came to investigate, he readily admitted ownership of the
weapon and then voluntarily went with them. He was

300
 MITIGATING CIRCUMSTANCES
Art. 13
Surrender and Confession of Guilt
Par. 7

investigated by the fiscal the following day. No warrant

had been issued for his arrest. The accused was granted
the benefit of the mitigating circumstance of voluntary
surrender. (People vs. 108 Phil. 100, 103)
3. . I m m e d i a t e l y after the shooting, the accused
having all the opportunity to escape, did not do so but
instead called up the police department. When the
policemen went to the scene of the crime to investigate, he
voluntarily approached them and without revealing his
identity, told them that he would help in connection
with the case as he knew the suspect and the latter's
motive. When brought to the police station immediately
thereafter as a possible witness, he confided to the
investigators that he was voluntarily surrendering and
also surrendering the fatal gun used in the shooting of
the These acts of the accused were held strongly
indicative of his intent or desire to surrender voluntarily
to the authorities. (People vs. Benito, No. L-32042 , Feb.
13, 1975, 62 SCRA 351 ,
355)

4. The two accused left the scene of the crime but made
several attempts to surrender to various local officials
which somehow did not materialize for one reason or
another. It was already a week after when they were
finally able to surrender. Voluntary surrender After
committing the crime, the accused defied no law or agent
of the authority, and when they surrendered, they did so
with meekness and repentance. (People vs. Magpantay,
No. Nov. 27, 1964, 12 SCRA 389, 392, 393)
5. Tempered justice suggests that appellants be credited
with voluntary surrender in mitigation. That they had no
opportunity to surrender because the peace officers came,
should not be charged against them. For one thing is
yielded their weapons at the time. Not only
that. They voluntarily went with the peace officers to the
municipal building. These acts, in legal effect, amount to
voluntary surrender. (People vs. Torres, 3 CAR
citing earlier cases)
6. The accused did not offer any resistance nor try to hide

301
when a policeman ordered him to come down his house.

301
 Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

He even brought his bolo used to commit the crime and

voluntarily gave himself up to the authorities before he
could be arrested. These circumstances are sufficient
to consider the mitigating circumstance of voluntary
surrender in his favor. (People vs. Radomes, No.
March 20, 1986, 141 SCRA 548, 562)

7. All that the records reveal is that the accused trooped to

the police headquarters to surrender the firearm used in
committing the crime. It is not clear whether or not he also
sought to submit his very person to the authorities. The
accused is given the benefit of the doubt and his arrival
at the police station is considered as an act of surrender.
(People vs. Jereza, G.R. No. 86230, Sept. 18, 1990, 189
SCRA 690, 698-699)
8. Where there is nothing on record to show that the warrant
for the arrest of the accused had actually been served on
him, or that it had been returned unserved for failure of the
server to locate said accused, and there is direct evidence
to show that he voluntarily presented himself to the police
when he was taken into custody. (People vs. No.
Oct. 31 , 1969, 30 SCRA 307, 316-317)

Cases not constituting voluntary surrender.

The warrant of arrest showed that the accused was in fact
arrested. Pueblo contra Conwi, 71 Phil. 595, 597)
The accused surrendered only after the warrant of arrest
was served upon him. (People vs. Roldan, No. L-22030,
May 23 SCRA 907, 910)
Where the accused was actually arrested by his own admis-
sion or that he yielded because of the warrant of arrest,
there is no voluntary surrender although the police blotter
euphemistically used the word "surrender." (People vs.
No. L-30038, July 18, 1974, 58 SCRA 21, 30)
4. The accused went into hiding and surrendered only when
they realized that the forces of the law were closing in on
them. (People vs. Mationg, No. L-33488, March 29, 1982,
113 SCRA 167, 178)

302
 MITIGATING CIRCUMSTANCES
Art. 13
Surrender and Confession of Guilt Par. 7

5. Where the accused were asked to surrender by the police

and military authorities but they refused until only much
later when they could no longer do otherwise by force
of circumstances when they knew they were completely
surrounded and there was no chance of escape. Their
surrender was not spontaneous as it was motivated more by
an intent to insure their safety. (People vs. G.R. No.
86163, April 26, 1990, 184 SCRA 671 , 678-679; People vs.
No. April SCRA 834, 844)

6. Where the search for the accused had lasted four (4) years,
which belies the spontaneity of the surrender. (People vs.
De la Cruz, No. L-30059, Dec. 19, 1970, 36 SCRA 452,
455)

7. Where other than the accused's version in court that he

went to a police officer in Dagupan City and asked the
latter to accompany him to Olongapo City after he was
told by someone that his picture was seen posted in the
municipal building, no other evidence was presented to
establish indubitably that he deliberately surrendered to
the police. (People vs. Garcia, No. July 9, 1981,
105 SCRA 325, 343)
8. Where the accused only went to the police station to report
that his wife was stabbed by another person and to seek
protection as he feared that the same assailant would also
stab him. (People vs. G.R. No. 74515, June
174 SCRA 93 , 99)
9. Where the accused went to the PC headquarters not to
surrender but merely to report the incident which does not
evince any desire to own the responsibility for the killing
of the deceased. (People vs. Rogales, No. Nov. 30,
1962, 6 SCRA 830, 835)
10. Where the Chief of Police placed the accused under arrest
in his employer's home to which that officer was summoned
and it does not appear that it was the idea of the accused
to send for the police for the purpose of giving himself up.
(People vs. Canoy, 90 Phil. 633, 643)
Where the accused accompanied the Chief of Police to the
scene of the crimes and he was not yet charged with, or
303
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

suspected of having taken any part in, said crimes, and the
authorities were not looking for him, and would not have
looked for him if he had not been present at the investiga-
tion by the Chief of Police. (People vs. Canoy, 90 Phil.
644)
Where the accused was arrested in his boarding house and
upon being caught, pretended to say that he was on his way
to the municipal building to surrender to the authorities,
for that is not the nature of voluntary surrender that may
serve to mitigate one's liability in contemplation of law.
(People vs. Rubinal, 110 Phil. 119, 127)

Not mitigating when defendant was in fact arrested.

There was no voluntary surrender if the warrant of arrest
showed that the defendant was in fact arrested. (People vs.
71 Phil. 595)
But where a person, after committing the offense and having
opportunity to escape, voluntarily waited for the agents of the
authorities and voluntarily gave himself up, he is entitled to the
benefit of this circumstance, even if he was placed under arrest by a
policeman then and there. (People vs. 64 Phil. 331)
And when the accused helped in his victim to the hospital
where he was disarmed and arrested, it is tantamount to voluntary
surrender. (People vs. Babiera, C.A., 45 O.G., Supp. 5, 311)
The facts of Conwi case, supra, should be distinguished from the
facts of the cases of People vs. Parana and People vs. Babiera, supra,
where the arrest of the offender was after his voluntary surrender
or after his doing an act amounting to a voluntary surrender to the
agent of a person in authority.

The accused who ran to the municipal building after the commission
of the crime had the intention or desire to surrender.
If the accused wanted to run away or escape, he would not have
run to the municipal building. The fact that on seeing a patrolman,
the accused threw away his bolo, raised his two hands, and admitted
having stabbed the injured party, is indicative of his intent or desire
to surrender voluntarily to the authorities. (People vs. G.R.
No. March 30, 1962)
 MITIGATING CIRCUMSTANCES
Art. 13
Surrender and Confession of Guilt
Par. 7

The accused who fled and hid himself to avoid reprisals from the
companions the deceased, but upon meeting a policeman voluntarily
went with him to the jail, is entitled to the benefit of the mitigating
circumstance of voluntary surrender.
Thus, when the accused, after the commission of the crime, fled
to the Imperial Hotel for security purposes, as there was no policeman
around and the companions of the deceased were pursuing him to that
place, and once inside he hid himself there, his going voluntarily to
the with the policeman who had gone to the hotel to investigate
the incident, was held to be a mitigating circumstance. (People vs.
G.R. No. May 20, 1960)

When the accused surrendered only after the warrant of arrest had
been served upon him, it is not mitigating.
It appears that appellant surrendered only after the warrant
of arrest was served upon him, which cannot be considered as a
surrender." (People vs. Roldan, G.R. No. May

When the warrant of arrest had not been served or not re-
turned unserved because the accused cannot be located, the
surrender is mitigating.
While it is true that the warrant for the arrest of the accused
was dated March and the police authorities were able to take
custody of the accused only on March there is nothing in the
record to show that the warrant had actually been served on him, or
that it had been returned unserved for failure of the server to locate
said accused. Upon the other hand, there is direct evidence that the
accused voluntarily presented himself to the police on March
1967. And the fact that it was effected sometime after the warrant of
arrest had been issued does not in the least detract from the voluntary
character of the surrender in the absence of proof to the contrary.
(People vs. 30 SCRA 308)

The law does not require that the surrender be prior to the
order of arrest.
People vs. Yeda, 68 Phil. 740 [1939] People vs. Turalba,
G.R. No. Feb. 28, 1974, it was held that when after the
305
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

commission of the crime and the issuance of the warrant of arrest,

the accused presented himself in the municipal building to post the
bond for his temporary release, voluntary surrender is mitigating.
The fact that the order of arrest had already been issued is no bar
to the consideration of the circumstance because the law does not
require that the surrender be prior to the order of arrest. (Rivera
vs. Court of Appeals, G.R. No. 125867, May 31 , 2000)

"Voluntarily surrendered himself."

After the incident, the accused reported it to the councilor; that
he stayed in the councilor's place for about an hour; and that thereafter
he went to the chief of police to whom he related what had happened
between him and the injured party and surrendered the bolo — not
his person — to said chief of police.
Held: The foregoing facts do not constitute voluntary surrender.
The law requires that the offender must have "voluntarily surrendered
himself to a person in authority or his agents." (People vs. Jose de
Ramos, CA-G.R. No. April 26, 1956)
Surrender of weap on s cannot be equated with volun tary
surrender. (People vs. Verges, No. L-36882-84, July 24, 1981, 105
SCRA 744, 756)
Where the accused merely surrendered the gun used in the
killing, without surrendering his own person to the authorities, such
act of the accused does not constitute voluntary surrender. (People
vs. Palo, 101 Phil. 963 , 968)
The fact that the accused did not escape or go into hiding after
the commission of the murder and in fact he accompanied the chief of
police to the scene of the crime without however surrendering to him
and admitting complicity in the killing did not amount to voluntary
surrender to the authorities and this circumstance would not be
extenuating in that case. (People vs. Canoy, 90 Phil. 633; People vs.
Rubinal, G.R. No. Nov. 29, 1960)
Appellant did not go to the PC headquarters after the shooting to
surrender but merely to report the incident. he never evinced
any desire to own the responsibility for the killing of the deceased.
(People vs. Rogales, 6 SCRA 830)

306
 MITIGATING CIRCUMSTANCES
Art. 13
Surrender and Confession of Guilt
Par. 7

The surrender must be made to a person in authority or his

agent.
A in is one directly vested with jurisdiction,
that is, a public officer who has the power to govern and execute
the laws whether as an individual or as a member of some court or
governmental corporation, board or commission. A barrio captain and
a barangay chairman are also persons in authority. (Art. 152, RPC,
as amended by P.D. No. 299)

An "agent of a person in authority" is a person, who, by direct provi-

sion of the law, or by election or by appointment by competent author-
ity, is charged with the maintenance of public order and the protection
and security life and property and any person who comes to the aid of
persons in authority. (Art. 152, as amended by Rep. Act No. 1978)

Voluntary surrender to commanding officer of the accused is

mitigating, because the commanding officer is an agent of a person
in authority.
Voluntary surrender to the chief clerk of a district engineer is not
mitigating, because such chief clerk is neither a person in authority
nor his agent.
An accused who surrendered first to the Justice of the Peace
(now Municipal Court), with whom he posted a bond, and then to the
Constabulary headquarters of the province, is entitled to the mitiga-
tion of voluntary surrender. (People vs. Casalme, No. July
26, 1966, 17 SCRA 717, 720-721)

Voluntary surrender does not simply mean non-flight.

Voluntary surrender does not simply mean non-flight. As a
matter of law, it does not matter if the accused never avoided arrest
and never hid or fled. What the law considers as mitigating is the
voluntary surrender of an accused before his arrest, showing either
acknowledgment of his guilt or an intention to save the authorities
from the trouble and expense that his search and capture would re-
quire. vs. Court of Appeals, No. L-63564, Nov. 28, 1983, 126
SCRA 28, 30; People vs. No. March 20,
SCRA 548, 560)
The fact that the accused did not escape or go into hiding after
the commission of the murder and in fact he accompanied the chief
307
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

of police to the scene of the crime without however surrendering to

him and admitting complicity in the killing did not amount to volun-
tary surrender to the authorities and this circumstance would not be
extenuating in that case. (People vs. Canoy and People vs. Rubinal,
supra)

Time and place of surrender.

The Revised Penal Code does not make any distinction among
the various moments when the surrender may occur.
Five days after the commission of the crime of homicide and
two days after the issuance of the order for his arrest, the accused
presented himself in the municipal building to post the bond for his
temporary release.
Held: This is a voluntary surrender constituting a mitigating
circumstance. The law does not require that the surrender be prior
to the issuance of the order of arrest. Moreover, the surrender of the
accused to post a bond for his temporary release was in obedience to
the order of arrest and was tantamount to the delivery of his person
to the authorities to answer for the crime for which his arrest was
ordered. (People vs. 68 Phil. 740, 741; People vs. No.
Oct. 31 , 1969, 30 SCRA 307, 316-317; People vs. Turalba,
No. Feb. 28, 1974, 55 SCRA 697, 704-705)

Note: In these cases, there is nothing in the record to show that

the warrant had actually been served on the accused,
or that it had been returned unserved for failure of the
server to locate the accused. The implication is that if
the accused cannot be located by the server of the war-
rant, the ruling should be different.

In the case People vs. G.R. No. June

the accused committed robbery with homicide on September
and surrendered on June It was held that the surrender was
voluntary and a mitigating circumstance.
But if the appellants surrendered because, after having been
fugitives from justice for more than 7 years, they found it impossible
to live in hostility and resistance to the authorities, martial law
having been declared, the surrender was not spontaneous. (People
vs. Sabater, 81 SCRA 564)

308
 MITIGATING CIRCUMSTANCES
Art. 13
Surrender and Confession of Guilt
Par. 7

an accused was held entitled to the mitigating circum-

stance of voluntary surrender where it appeared that he posted the
bond for his provisional liberty eighteen days after the commission of
the crime and fourteen and sixteen days, respectively, after the first
and second warrants for his arrest were issued, the court declaring
that the fact that the warrant for his arrest had already been issued
is no bar to the consideration of this mitigating circumstance because
the law does not require that the surrender be prior to the order of
arrest. (People vs. Valera, et Aug. By parity of
reasoning, therefore, appellant Maximo Diva's voluntary surrender to
the chief of police of the municipality of Poro should be considered to
mitigate his criminal liability because the law does not require him
to surrender to the authorities of the municipality of San Francisco
where the offense was committed. (People vs. Diva, et 23 SCRA
332)

In a homicide case where after the killing of the deceased

which took place in Janiu ay, Iloilo, the two accused fled, took ref-
uge in the house of a lawyer, and surrendered to the constabulary
in Iloilo City, after passing three municipalities, it was held that
there was voluntary surrender. (People vs. Cogulio, C.A., 54 O.G.
5516 )

The surrender must be by reason of the commission of the

crime for which defendant is prosecuted.
Defendant cannot claim the circumstance of voluntary surrender
because he did not surrender to the authority or its agents by reason
of the commission of the crime for which he was prosecuted, but for
being a Huk who wanted to come within the pale of the law. (People
vs. etc., G.R. No. May 26, 1958)
Thus, if the defendant surrendered as a Huk to take advantage of
the amnesty, but the crime for which he was prosecuted was distinct
and separate from rebellion, his surrender is not mitigating.

Surrender through an intermediary.

The accused surrendered through the mediation of his father
before any warrant of arrest had been issued. His surrender was
appreciated as mitigating. (People vs. De la Cruz, No. L-45485, Sept.
85 SCRA 285, 292)

309
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

When is surrender voluntary?

A surrender to be voluntary must be spontaneous, showing the
intent of the accused to submit himself unconditionally to the authori-
ties, either (1) because he acknowledges his guilt, or (2) because he
wishes to save them the trouble and expenses necessarily incurred in
his search and capture. (Quoted in People vs. No. L-68790,
Jan. 23, 1987, 147 SCRA 281 , 285)
If none of these two reasons impelled the accused to surrender,
because his surrender was obviously motivated more by an intention
to insure his safety, his arrest being inevitable, the surrender is not
spontaneous and therefore not voluntary. (People vs. Laurel,
59 O.G. 7618)

The surrender must be spontaneous.

The word "spontaneous" emphasizes the idea of an inner impulse,
acting without external stimulus. The conduct of the accused, not his
intention alone, after the commission of the offense, determines the
spontaneity of the surrender.
The circumstances surrounding the surrender of Simplicio
do not meet this standard, because immediately after the
commission of the robbery-slaying attributed to him and Atanacio
they fled together to the province of Leyte which neces-
sitated the authorities of Quezon City to go to the place and search
for them. In fact, Simplicio Gervacio surrendered to the Mayor of
Biliran twelve days after the commission of the crime, and only after
had been discovered in a far away sitio which led to the
arrest of Atanacio Mocorro. (People vs. Gervacio, No. August
30, 1968, 24 SCRA 960, 977)
The circumstance that the accused did not resist arrest or strug-
gle to free himself after he was taken to custody by the authorities
cannot amount to voluntary surrender. (People vs. Siojo, 61 Phil.
307, 318; People vs. Yuman, 61 Phil. 786, 787, 791) And while it is
claimed that the accused intended to surrender, the fact is that he did
not, despite several opportunities to do so, and was in fact arrested.
(People vs. 106 Phil. 391 , 397)

Voluntary surrender cannot be appreciated in favor of an accused

who surrenders only after a warrant of arrest is issued and he finds it

310
 MITIGATING CIRCUMSTANCES
Art. 13
Surrender and Confession of Guilt
Par. 7

futile to continue being a fugitive from justice. (People vs. Rodriguez,

No. Dec. 15, 1982, 119 SCRA 254, 258)

For voluntary surrender to be appreciated, it is necessary that

the same be spontaneous in such manner that it shows the intent of
the accused to surrender 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. (People vs. Lingatong, G.R. No. 34019, Jan. 29, 1990, 181
SCRA 424 , 430, citing earlier cases)

The surrender is not spontaneous where the accused took almost

nine months after the issuance of the warrant of arrest against him
before he presented himself to the police authorities. (People vs.
Mabuyo, No. May 8, 1975, 63 SCRA 532, 542).
Neither is voluntary surrender spontaneous where the accused
had gone into hiding for 2 1/2 years before surrendering. (People vs.
G.R. No. 69184 , March 183 SCRA 658, 669).

Intention to surrender, without actually surrendering, is not mitigat-

ing.
The mitigating circumstance of voluntary surrender cannot be
appreciated in favor of the accused who claims to have intended to
surrender but did not, despite several opportunities to do so, and was
in fact arrested. (People vs. Dimdiman, supra)

Note: The law requires that the accused must surrender him-
self.

There is spontaneity even if the surrender is induced by fear of retali-

ation by the victim's relatives.
The fact that the accused gave himself up to the police imme-
diately after the incident was not considered in his favor, because
during the trial, he declared that he did so out of fear of retaliatory
action from the relatives of the deceased. This, according to the trial
Judge, is not the kind of surrender that entitles the accused to the
benefit of voluntary surrender.

Held: That the surrender was induced by his fear of retaliation by

the victim's relatives does not gainsay the spontaneity of the surrender,
311
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

nor alter the fact that by giving himself up, this accused saved the State
the time and trouble of searching for him until arrested. (People vs.
No. L-23463, Sept. 28, 1967, 21 SCRA 261, 268-269)

When the offender imposed a condition or acted with external stimulus,

his surrender is not voluntary.
There could have been no voluntary surrender because the ac-
cused went into hiding after having committed the crimes and refused
to surrender without having first conferred with the town councilor.
(People vs. Mutya, G.R. Nos. 1255-56, Sept. 30, 1959)
A surrender is not voluntary when forced by as
when the culprits it impossible to live in hostility and
resistance to the constituted authorities and their agents in view of
the fact that the said authorities had neither given them rest nor left
them in peace for a (People vs. 61 Phil. 27, 34)
When they started negotiations for their surrender, the roads
through which their escape could be attempted were blocked and the
house where they were hiding was surrounded by the Constabulary
forces. They surrendered, because of their belief that their escape was
impossible under the circumstances. The surrender was not voluntary.
(People vs. G.R. Nos. Aug.

Requisites of plea of guilty.

In order that the plea of guilty may be mitigating, the three
requisites must be present:
That the offender spontaneously confessed his guilt;

2. That the confession of guilt was made in open court, that

is, before the competent court that is to try the case; and
3. That the confession of guilt was made prior to the pres-
entation of evidence for the prosecution. (See People vs.
No. L-32243, April 15, 1988, 160 SCRA 47,
56, citing earlier cases. Also, People vs. Bueza, G.R. No.
79619, Aug. 20, 1990, 188 SCRA 683, 689)

The plea must be made before trial begins.

The trial on the merits had commenced and the prosecution had
already presented evidence proving the guilt of the accused when he
manifested that he would change his plea of not guilty to a plea of
312
 MITIGATING CIRCUMSTANCES
Art. 13
Surrender and of Guilt
Par. 7

guilty. He was properly As ruled in People vs. Kayanan

(83 SCRA 437), a plea of guilty made after arraignment and after trial
had begun does not entitle the accused to have such plea considered
as a mitigating circumstance. (People vs. Lungbos, No. L-57293, June
SCRA People vs. Verano, Jr., No. L-45589,
July 28, 1988, 163 SCRA 614, 621)

Plea of guilty on appeal, not mitigating.

Plea of guilty in the Court of First Instance (now RTC) in a case
appealed from the Municipal Court is not mitigating, because the
plea of guilty must be made at the first opportunity, that is, in the
Municipal Court. (People vs. 64 Phil. 403 , 407-408; People
vs. De la 66 Phil. 451 , 453)

It cannot be properly stated that the appeal taken by the accused

from the Municipal Court to the Court of First Instance again restored
the case to its original state for the reason that the law requires a trial
de novo, because a trial de novo necessarily implies the existence of a
previous trial where evidence was presented by the prosecution.

Philosophy behind the rule.

If an accused, charged with an offense cognizable by the mu-
nicipal court, pleads not guilty therein, and on appeal to the court of
first instance, changes his plea to that of guilty upon
he should not be entitled to the mitigating circumstance of confession
of guilt. The philosophy behind this rule is obvious. For the spon-
taneous willingness of the accused to admit the commission of the
offense charged, which is rewarded by the mitigating circumstance,
is absent. (People vs. 73 Phil. 597) Indeed, if the rule were
otherwise, an accused, who naturally nourishes the hope of acquittal,
could deliberately plead not guilty in the municipal court, and upon
conviction and on appeal to the court of first instance, plead guilty
just so he can avail himself of the benefit of a mitigating circumstance.
This cannot be countenanced. The accused should not be allowed to
speculate. (People vs. Oandasan, 25 SCRA 277)

Plea of not guilty at the preliminary investigation is no

plea at all.
If an accused is charged with an offense cognizable by the court
of first instance, and pleads not guilty before the municipal court at
313
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

its preliminary investigation, and after the elevation of the case to

the court of first court of competent
pleads guilty upon arraignment before this latter court, the plea of
not guilty upon arraignment at the preliminary investigation in the
municipal court is no plea at all. Hence, the accused could claim his
plea of guilty in the court of first instance as mitigating circumstance
pursuant to Article 13(7) of the Revised Penal Code. (People vs.
supra)

The confession of guilt must be made in open court.

The extrajudicial confession made by the accused is not the
voluntary confession which the Code contemplates. Such confession
was made outside of the court. The confession of guilt must be made
in open court. (People vs. Pardo, et 79 Phil. 568)

The confession of guilt must be made prior to the presentation of the

evidence for the prosecution.
Plea of guilty after the fiscal had presented evidence is not miti-
gating because the third requisite is lacking. (People vs. Co Chang,
60 Phil. 293)

The benefit of plea of guilty is not deserved the accused who

submits to the law only after the presentation of some evidence for
the prosecution, believing that in the end the trial will result in his
conviction by virtue thereof. (People vs. De la Cruz, 63 Phil. 874;
People vs. 103 Phil. 504)
It is not necessary that all the evidence of the prosecution have
been Even if the first witness presented by the prosecution
had not finished testifying during the direct examination when the
accused withdrew his former plea of and substituted it
with the plea of "guilty," the plea of guilty is not mitigating. (People
vs. Lambino, 103 Phil. 504)

Withdrawal of plea of not guilty and pleading guilty before

presentation of evidence by prosecution is still
All that the law requires is voluntary plea of guilty prior to the
presentation of the evidence by the prosecution. Thus, even if dur-
ing the arraignment, the accused pleaded not guilty, he is entitled
to this mitigating circumstance as long as he withdraws his plea of
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 MITIGATING CIRCUMSTANCES Art. 13
Surrender and Confession of Guilt
Par. 7

not guilty and thereafter pleads guilty to the charge before the fiscal
could present his evidence.

The change of plea should be made at the first opportunity.

But in a case where the accused committed the crime on March
and when arraigned on May he pleaded not guilty,
and it was only on August 11, 1957, or about 1 year, 3 months and
7 days that he felt contrite and repentant by changing his former
plea of not guilty to that of guilty, his plea of guilty was obviously
not spontaneous, and was apparently done not because of his sincere
desire to repent but because of his fear of eventual conviction. If it
was his desire to repent and reform, he could have pleaded guilty at
the very first opportunity when his arraignment was first set. (People
vs. Quesada, 58 O.G. 6112)

A conditional plea of guilty is not a mitigating circumstance.

The plea of guilty was conditioned upon the allegation that the
killing was done when the appellant surprised his wife in the act of
sexual intercourse with the deceased Moro We already pointed
out that accused may not enter a conditional plea of guilty in
the sense that he admits his guilt provided that a certain penalty be
imposed upon him." We are, therefore, constrained to hold that the
appellant in this case must be considered as having entered a plea
of not guilty. (People vs. Moro Sabilul, 89 Phil. 283, 285)

Death penalty changed to life imprisonment because of plea

of guilty, even if done during the presentation of evidence.
While the accused entered a plea of guilty, he did it only dur-
ing the continuation of the trial so that this circumstance may not,
under the law, be considered to mitigate the liability of the accused.
However, such an admission of guilt indicates his submission to the
law and a moral disposition on his part to reform, hence, the death
penalty imposed is changed to life imprisonment. (People vs. Coronel,
No. June 30, 1966, 17 SCRA 509, 513)

Plea of guilty to amended information.

Trial had already begun on the original information for murder
and frustrated murder. However, in view of the willingness of the

315
 Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and of Guilt

accused to plead guilty for a lesser offense, the prosecution, with

leave of court, amended said information to make it one for homicide
and frustrated homicide, and the accused pleaded guilty thereto.
That was an entirely new information and no evidence was presented
in connection with the charges made therein before the accused
entered his plea of guilty. The accused is entitled to the mitigating
circumstance of plea of guilty. (People vs. Ortiz, No. Nov.
29, 1965, 15 SCRA 352 , 354)

Plea of guilty to lesser offense than that charged, not miti-

gating.
Plea of guilty to a lesser offense is not a mitigating circumstance,
because to be voluntary, the plea of guilty must be to the offense
charged. (People vs. Noble, 77 Phil. 93)
For voluntary confession to be appreciated as an extenuating
circumstance, the same must not only be made unconditionally but
the accused must admit to the offense charged, i.e., robbery with
homicide in the present case, and not to either robbery or homicide
only. Hence, if the voluntary confession is conditional or qualified, it
is not mitigating. (People vs. Gano, et G.R. No. 134373, February
28, 2001)
But when the defendant pleaded guilty, only manifesting that
evident premeditation alleged in the information did not attend the
commission of the crime, and when the court required the presentation
of evidence on premeditation the prosecution failed to prove it, the plea
of guilty is mitigating, because although the confession was qualified
and introduction of evidence became necessary, the qualification did
not deny the defendant's guilt and, what is more, was subsequently
ju sti fi ed . I t wa s not th e d efen d an t' s fault tha t a g g r a v a t i n g
circumstances were erroneously alleged in the information. (People
vs. 86 Phil. 534, 539; People vs. Ong, No. L-34497, Jan.
30, 1975, 62 SCRA 174, 216)

Plea of guilty to the offense charged in the amended

informa- tion, lesser than that charged in the original
information, is mitigating.
Charged with double murder, the accused moved the Court to
permit him to withdraw his former plea of not guilty to be substituted

316
 MITIGATING CIRCUMSTANCES Art. 13
Surrender and Confession of Guilt Par. 7

with that of guilty to the lesser crime of double homicide. The pros-
ecution moved to amend the information so as to change the crime
from double murder to double homicide. Both motions were granted
by the court.

Held: The plea of guilty to the lesser offense charged in the

amended information is mitigating. (People vs. 101 Phil. 306,
307-308)

When the accused is charged with a grave offense, the court should
take his testimony in spite of his plea of guilty.
The trial court should "determine whether the accused really and
truly comprehended the meaning, full significance and consequences
of his plea and that the same was voluntarily and intelligently entered
or given by the accused." (People vs. Lacson, No. L-33060, Feb. 25,
1974, 55 SCRA 589, 593)
Because there is no law prohibiting the taking of testimony af-
ter a plea of guilty, where a grave offense is charged, this Court has
deemed such taking of testimony the prudent and proper course to
follow for the purpose of establishing the guilt and the precise degree
of culpability of the defendant. (People vs. Saligan, No. L-35792, Nov.
29, 1973, 54 SCRA 190, 195; People vs. Domingo, Nos. L-30464-5,
Jan. 55 SCRA 237, 243-245)

Mandatory presentation of evidence in plea of guilty to capital

offense.
The Revised Rules of Criminal Procedure (Rule 116, Sec. 3)
provides that where the accused pleads guilty to a capital offense, that
court shall conduct a searching inquiry into the voluntariness and
full comprehension of the consequences of his plea and shall require
the prosecution to prove his guilt and the precise degree of culpability.
The accused may present evidence in his behalf.

Searching Inquiry.
The guidelines in the conduct of a searching inquiry are as fol-
lows:
Ascertain from the accused himself (a) how he was brought
into the custody of the law; (b) whether he had the assistance of a
competent counsel during the custodial and preliminary investiga-

317
Art. 13 MITIGATING CIRCUMSTANCES
Par. 7 Surrender and Confession of Guilt

tions; and (c) under what conditions he was detained and interrogated
during the This is intended to rule out the possibility
that the accused has been coerced or placed under a state of duress
either by actual threats of physical harm coming from malevolent
quarters or simply because of the judge's intimidating robes.
(2) Ask the defense counsel a series of questions as to whether
he had conferred with, and completely explained to, the accused the
meaning and consequences of a plea of guilty.
(3) Elicit information about the personality profile of the
accused, such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his capacity
to give a free and informed plea of guilty.
(4) Inform the accused of the exact length of imprisonment or
nature of the penalty under the law and the certainty that he will serve
such sentence. For not infrequently, an accused pleads guilty in the
hope of a lenient treatment or upon bad advice or because of promises
of the authorities or parties of a lighter penalty should he admit guilt
or express remorse. It is the duty of the judge to ensure that the
accused does not labor under these mistaken impressions because a
plea of guilty carries with it not only the admission of authorship of
the crime proper but also of the aggravating circumstances attending
it, that increase punishment.
(5) Inquire if the accused knows the crime with which he is
charged and to fully explain to him the elements of the crime which
is the basis of his indictment. Failure of the court to do so would
constitute a violation of his fundamental right to be informed of the
precise nature of the accusation against him and a denial of his right
to due process.
(6) All questions posed to the accused should be in a language
known and understood by the latter.
(7) The trial judge must satisfy himself that the accused, in
pleading guilty, is truly guilty. The accused must be required to nar-
rate the tragedy or reenact the crime or furnish its missing details.
(People vs. G.R. No. 174056, Feb. 27, 2007)

Reasons why plea of guilty is mitigating.

It is an act of repentance and respect for the law; it indicates a

318
 MITIGATING CIRCUMSTANCES
Art. 13
Physical Defect
Par. 8

moral disposition in the accused, favorable to his reform. (People vs.

De la Cruz, 63 Phil. 874, 876)

Basis of paragraph 7.
The basis of the mitigating circumstances of voluntary surrender
and plea of guilty is the lesser perversity of the offender.

Plea of guilty is not mitigating in culpable felonies and in

crimes punished by special laws.
Art. 365, par. 5, of the Revised Penal Code, which prescribes
the penalties for culpable felonies, provides that "in the imposition
of these penalties, the courts shall exercise their sound discretion,
without regard to the rules prescribed in Art. 64." This last mentioned
article states, among other rules, that when there is a mitigating
circumstance without any aggravating circumstance, the penalty to
be imposed is the minimum period of the divisible penalty. (People
vs. 103 Phil. 526, 529)

When the crime is punished by a special law, the court shall also
exercise its sound discretion, as Art. 64 is not applicable. The penalty
prescribed by special laws is usually not divisible into three periods.
Art. 64 is applicable only when the penalty has three periods.

Par. 8. — That the offender is and dumb, blind or otherwise

suffering from some physical defect which thus restricts
his means of defense, or communication with
his fellow beings.

Deaf and dumb.

In a criminal case charging robbery in an inhabited house, the
accused is deaf and dumb. Held: He is entitled to the mitigating
circumstance of being deaf and dumb under Article 13, paragraph 8.
(People vs. Nazario, 97 Phil. 990)

Physical defect must restrict means of action, defense, or

communication with fellow beings.
Physical defect referred to in this paragraph is such as being
armless, cripple, or a stutterer, whereby his means to act, defend

319
 Art. 13 MITIGATING CIRCUMSTANCES
Par. 9 Illness of the Offender

himself or communicate with his fellow beings are limited. (Al-

bert)
Question: Does this paragraph apply when the deaf-mute or the
blind is educated?
This paragraph does not distinguish between educated and
uneducated deaf-mute or blind persons.
The Code considers them as being on equal footing.

Basis of paragraph 8.
Paragraph 8 of Art. 13 considers the fact that one suffering
from physical defect, which restricts one's means of action, defense,
or communication with one's fellow beings, does not have complete
freedom of action and, therefore, there is a diminution of that element
of voluntariness.

Par. 9. — Such illness of the offender as would diminish the

exercise of the will-power of the offender without
however depriving him of consciousness of his acts.

Requisites:

That the illness of the offender must diminish the exercise

of his will-power.
2. That such illness should not deprive the offender of con-
sciousness of his acts.

When the offender completely lost the exercise of will-

power, it may be an exempting circumstance.
When a person becomes affected either by dementia praecox or
by manic depressive psychosis, during the period of excitement, he
has no control whatsoever of his acts. (Opinion of Dr. Domingo,
cited in the case of People vs. Bonoan, 64 Phil. 95)

In such case, the person affected, acted upon an irresistible

homicidal impulse.
In the Bonoan case, the Supreme Court found the accused de-
mented at the time he perpetrated the crime of murder acquitted
the accused.
320
 MITIGATING CIRCUMSTANCES Art. 13
Illness of the Offender Par. 9

Does this circumstance include illness of the

mind?
Question: Does this paragraph refer to the mental condition
more or less disturbed?
It is said that the foregoing legal provision refers only to diseases
of pathological state that trouble the conscience or will. (Albert)
Thus, this paragraph was applied to a mother who, under the
influence of a puerperal fever, killed her child the day following her
delivery. (Dec. Sup. Ct. Spain, Sept. 28, 1897)

But in the case People vs. Francisco, 78 Phil. 694, it was held
that this paragraph applies to defendant who committed the crime
while suffering from some illness (of the body, the mind, the nerves,
or the moral faculty).
Note that in accordance with the ruling in the above-mentioned
case, illness of the mind is included. It would seem that a diseased
mind, not amounting to insanity, may give place to mitigation.

Illness of the offender considered mitigating.

The mistaken belief of the accused that the killing of a witch
was for the public good may be considered a mitigating
circumstance for the reason that those who have obsession
that witches are to be eliminated are in the same condition
as one who, attacked with a morbid infirmity but still
retaining consciousness of his acts, does not have real
control over his will. (People vs. Balneg, et 79 Phil.
805)
2. Example of illness of the nerves or moral faculty.

she is mentally sane, we, however, are

inclined to extend our sympathy to the appellant because
of her misfortunes and weak character. According to the
report she is suffering from a mild behaviour disorder as
a consequence of the illness she had in early life. We are
willing to regard this as a mitigating circumstance under
Art. 13, Revised Penal Code, either in paragraph 9 or in
paragraph 10." (People vs. 82 Phil. 820)
One who was suffering from acute neurosis which made

321
him ill-tempered and easily angered is entitled to this

322
Art. 13 MITIGATING CIRCUMSTANCES
Par. 10 Similar and Analogous Circumstances

mitigating circumstance, because such illness diminished

his exercise of will power. (People vs. Carpenter, C.A., G.R.
No. 4168, April 22, 1940)
4. The fact that the accused is feebleminded warrants the
finding in his favor of the mitigating circumstance either
under paragraph 8 or under paragraph 9 of Art. 13. (People
vs. Formigones, 87 Phil. 658)
5. The evidence of accused-appellant shows that while there
was some impairment of his mental faculties, since he was
shown to suffer from the chronic mental disease called
disorder or psychosis, such impairment
was not so complete as to deprive him of his intelligence or
the consciousness of his acts. The schizo-affective disorder
or psychosis of accused-appellant may be classified as an
illness which diminishes the exercise of his will-power but
without depriving him of the consciousness of his acts. He
may thus be credited with this mitigating circumstance but
will not exempt him from his criminal liability. (People vs.
Antonio, Jr., G.R. No. 144266, Nov. 27, 2002)

Basis of paragraph 9.
The circumstance in paragraph 9 of Art. 13 is mitigating because
there is a diminution of intelligence and intent.

Par. 10. — And, finally, any other circumstance of a similar

nature and analogous to those abovementioned.

Must be of similar nature and analogous to those

mentioned in paragraphs 1 to 9 of Art.
This paragraph authorizes the court to consider in favor of the
accused other circumstance of a similar nature and analogous
to those mentioned" in paragraphs 1 to 9 of Art. 13.

Over years old with failing sight, similar to over 70

years of age mentioned in paragraph 2.
The fact that the defendant was over 60 years old and with fail-
ing sight, is analogous to circumstance No. 2 of Art. 13, as similar to

323
 MITIGATING CIRCUMSTANCES
Art. 13
Similar and Analogous Circumstances
Par. 10

the case of one over 70 years of age. (People vs. Reantillo and Ruiz,
C.A., G.R. No. 301 , July 27, 1938)

Outraged feeling of owner of animal taken for ransom analo-

gous to vindication of a grave offense.
The accused is entitled to the mi ti gati ng circumstance of
analogous to, if not the same as, vindication of a grave offense
committed by the deceased where the latter took away the carabao
of the accused and held it for ransom, and thereafter failed to fulfill
his promise to pay its value after the carabao had died. (People vs.
No. L-38528, Nov. 19, SCRA 466, 476)

Outraged feeling of creditor, similar to passion

and tion mentioned in paragraph 6.
A person who killed his debtor who had tried to escape and
refused to pay his debt is entitled to mitigating circumstance similar to
passion and obfuscation. (People vs. Merenillo, C.A., 36 O.G. 2283)

Impulse of jealous feeling, similar to passion and obfuscation.

The fact that the accused committed slander by charging the
offended party with the concubine of the husband of the accused
under the impulse of a jealous feeling apparently justified, though later
discovered to be unfounded, because the complainant, as verified by
physical examination, was a virgin, may be taken, under Article 13,
paragraph 10, of the Revised Penal Code, as a mitigating circumstance
similar to passion and obfuscation. (People vs. Ubengen, C.A., 36 O.G.
763)
It is not difficult to see that boxing appellant during a dance
and in the presence of so many people, and he, an ex-soldier and ex-
member of a military organization and unit, well-known and respected,
undoubtedly produced rancour in the breast of who must have felt
deeply insulted; and to vindicate himself and appease his self-respect, he
committed the crime. The mitigation may well be found under paragraph
10 of the same article. (People vs. Libria, 95 Phil. 389)

Manifestations of Battered Wife Syndrome, analogous to an

illness that diminishes the exercise of will power.
The cyclical nature and the severity of the violence inflicted upon
appellant resulted in "cumulative provocation which broke down her
324
Art. 13 MITIGATING CIRCUMSTANCES
Par. 10 Similar and Analogous Circumstances

psychological resistance and natural pa-

ralysis," and "difficulty in concentrating or impairment of memory."
Based on the explanations of the expert witnesses, such
manifestations were analogous to an illness that diminished the
exercise by appellant her will power without, however, depriving her
of consciousness her acts. There was, thus, a resulting diminution of
her freedom of action, intelligence or intent. Pursuant to paragraphs
9 and 10 of Article 13 of the Revised Penal Code, this circumstance
should be taken in her favor and considered as a mitigating factor.
(People vs. Genosa, G.R. No. 135981, Jan. 14, 2004)

Esprit de corps, similar to passion and obfuscation.

Mass psychology and appeal to esprit de corps is similar to
passion or obfuscation. In this case, many of the soldiers who took
part in the killing of the deceased responded to the call and appeal
of their lieutenant who urged them to avenge the outrage committed
by the deceased who had summarily ejected certain soldiers from the
dance hall. They considered the act of the deceased a grave insult
against their organization. (People vs. Villamora, 86 Phil. 287)

Voluntary restitution of stolen property, similar to voluntary

surrender mentioned in paragraph 7.
On the other hand, voluntary restitution of the property stolen
by the accused or immediately reimbursing the amount malversed
(People vs. Luntao, C.A., 50 O.G. 1182) is a mitigating circumstance
as analogous to voluntary surrender.
The act of testifying for the prosecution, without previous dis-
charge, by Lorenzo Soberano (one of the accused) should be considered
in his favor as a mitigating circumstance analogous to a plea of guilty.
(People vs. Navasca, 76 SCRA 72)

Extreme poverty and necessity, similar to incomplete justifi-

cation based on state of necessity.
The accused, on account of extreme poverty and of the economic
difficulties then prevailing, was forced to pilfer two sacks of paper
valued at from the Customhouse. He sold the two sacks of
paper for Held: The right to life is more sacred than a mere
property right. That is not to encourage or even countenance theft,

325
 MITIGATING CIRCUMSTANCES Art. 13
Similar and Analogous Circumstances Par. 10

but merely to dull somewhat the keen and pain-producing edges

of the stark realities of life. (People vs. Macbul, 74 Phil. 436, 438-
439)
State of necessity is a justifying circumstance under Art.
paragraph 4. Incomplete justification is a mitigating circumstance
under paragraph 1 of Article 13.

Extreme poverty may mitigate a crime against property, such as

theft, but not a crime of violence such as murder. (People vs. Agustin,
No. March 16 SCRA 467, 474-475)

But it is not mitigating where the accused had impoverished

himself and lost his gainful occupation by committing crimes and
not driven to crime due to want and poverty. (People vs. Pujinio, No.
April 29, 1969, 27 SCRA

Testifying for the prosecution, analogous to plea of guilty.

The act of the accused of testifying for the prosecution, without
previous discharge, is a mitigating circumstance analogous to a plea
of guilty. (People vs. Navasca, No. March 76 SCRA
70, 81)

Killing the wrong man is not mitigating.

Neither do we believe that the fact that he made a mistake in
killing the wrong man should be considered as a mitigating circum-
stance. (People vs. Gona, 54 Phil. 605, 606-607)

Not analogous mitigating circumstance.

In parricide, the fact that the husband of the accused was
unworthy or was a rascal and a bully and was bad (People vs. Canja,
86 Phil. 518, 521), or that the victim was a bad or quarrelsome
person (People vs. Fajardo, C.A., 36 O.G. 2256) is not a circumstance
of a similar nature and analogous to any of those mentioned in the
preceding paragraphs of Art. 13.
The accused, who was charged with the crime of falsification,
pleaded guilty and invoked as mitigating circumstance the lack
of irreparable material damage. Held: This is not recognized as a
mitigating circumstance in the Revised Penal Code. Neither is it
among those which may be considered as similar in nature and

326
 Art. 13 MITIGATING CIRCUMSTANCES
Personal Nature

analogous to those expressly prescribed as mitigating circumstances.

(People vs. Dy Pol, 64 Phil. 563, 565)

Not resisting arrest, not analogous to voluntary surrender.

Yielding to arrest the slightest attempt to resist is not
analogous to voluntary surrender. (People vs. Rabuya, No.
Nov. 7, 1979, 94 SCRA 123, 138)

The condition of running amuck is not mitigating.

The Revised Penal Code enumerates the circumstances which
mitigate criminal liability, and the condition of running amuck is not
one of them, or one by analogy. The defense contended that running
amuck is a cult among the Moros that is age-old and deeply rooted.
Insofar as they are applicable, mitigating circumstances must be
applied alike to all criminals be they Christians, Moros or Pagans.
(People vs. Salazar, 105 Phil. 1058)

Mitigating circumstances which are personal to the offenders.

Mitigating ci rcu mstan ces which arise (1) from the moral
attributes of the offender, or (2) from his private relations with the
offended party, or (3) from any other personal cause, shall only serve
to mitigate the liability of the principals, accomplices, and accessories
as to whom such circumstances are attendant. (Art. 62, par. 3)

Mitigating circumstances which arise from the moral attributes of

the offender.
A and B killed C, A acting under an impulse which produced
obfuscation. The circumstance of obfuscation arose from the moral
attribute of A and it shall mitigate the liability of A only. It shall not
mitigate the liability of B.

Mitigating circumstances which arise from the private relations the

offender with the offended party.
A, son of B, committed robbery against the latter, while C, a
stranger, bought the property taken by A from B, knowing that the
property was the effect of the crime of robbery. The circumstance
of relationship (Art. 15) arose from the private relation of A with B
and it shall mitigate the liability of A only. It shall not mitigate the
liability of C, an accessory. (Art. 19)

327
 AGGRAVATING CIRCUMSTANCES Art. 13
Definition

Mitigating circumstances which arise from any other personal cause.

A, 14 years old and acting with discernment, inflicted serious
physical injuries on seeing what A had done to C, kicked the
latter, thereby concurring in the criminal purpose of A and cooperating
with him by simultaneous act. (Art. 18) The circumstance of minority
arose from other personal cause and it shall mitigate the liability of
A only. It shall not mitigate the liability of B, an

Note: It seems that all mitigating circumstances are personal

to the offenders.

Circumstances which are neither exempting nor mitigating.

Mistake in the blow or ictus, for under Art. 48, there

is a complex crime committed. The penalty is even higher.
2. Mistake in the identity of the victim, for under Art. 4, par.
1, the accused is criminally liable even if the wrong done
is different from that which is intended. See Art. 49 as to
its effect on the penalty.

Entrapment of the accused.

4. The accused is over 18 years of age. If the offender is over
18 years old, his age is neither exempting nor mitigating.
(People vs. Marasigan, 70 Phil. 583)
5. Performance of righteous action.
The performance of righteous action, no matter how
meritorious it may be, is not justifying, exempting, or
mitigating circumstance in the commission of wrongs, and
although the accused had saved the lives of a thousand
and one persons, if he caused the killing of a single human
being, he is, nonetheless, criminally liable. (People vs.
Victoria, 78 Phil. 122)

IV. Aggravatin g Circumstances .

1. Defi ni ti on
Aggravati n g ci rcu mstan ces are those which, i f
attendant in the commission of the serve to increase

328
Art. 13 AGGRAVATING CIRCUMSTANCES
Basis and Kinds

the penalty without, however, exceeding the maximum of

the penalty provided by law for the offense.
2. Ba si s
They are based on the greater perversity of the offender
manifested in the commission of the felony as shown by:
(1) the motivating power itself, (2) the place of commission,
(3) the means and ways employed, (4) the time, or (5) the
personal circumstances of the offender, or of the offended
party.

Four kinds of aggravating circumstances.

Generic — Those that can generally apply to all crimes.
Example — Dwelling, nighttime, or recidivism.
In Art. 14, the circumstances in paragraphs Nos. 1,
2, 3 (dwelling), 4, 5, 6, and 20, except
means of motor vehicles," are generic aggravating circum-
stances.
2. Specific — Those that apply only to particular crimes.
Example — Ignominy in crimes against chastity or
cruelty and treachery in crimes against persons.
In Art. 14, the circumstances in paragraphs Nos. 3
(except dwelling), and 21 are specific aggravating
circumstances.
3. Qualifying — Those tha t change the nature of the
crime.
Example — Alevosia (treachery) or evident premedi-
tation qualifies the killing of a person to murder.
Art. 248 en u me ra t es the qualifying aggravati ng
circumstances which qualify the killing of person to mur-
der.
4. Inherent — Those that must of necessity accompany the
commission of the crime. (Art. 62, par. 2)
Example — Evident premeditation is inherent in
robbery, theft, estafa, adultery and concubinage.
329
 AGGRAVATING CIRCUMSTANCES Art. 13
Distinctions Between Qualifying and Generic

Qualifying aggravating circumstance distinguished from

generic aggravating circumstance.
The effect of a generic aggravating circumstance, not offset by
any mitigating circumstance, is to increase the penalty which
should be imposed upon the accused to the maximum period,
but without exceeding the limit prescribed by law; while that of
a qualifying circumstance is not only to give the crime its proper
and exclusive name but also to place the author thereof in such
a situation as to deserve no other penalty than that specially
prescribed by law for said crime. (People vs. Bayot, 64 Phil. 269,
273)
2. A qualifying aggravating circumstance cannot be offset by a
mitigating circumstance; a generic aggravating circumstance
may be compensated by a mitigating circumstance.
A qualifying aggravating circumstance to be such must be alleged
in the information. If it is not alleged, it is a generic aggravating
circumstance only.

Aggravating circumstance not alleged.

An aggravating circumstance, even if not alleged in the infor-
mation, may be proved over the objection of the defense. (People vs.
Gabitanan, C.A., 43 O.G. 3209; People vs. Martinez Godinez, 106 Phil.
606-607) This is true only as regards a generic aggravating circum-
stance. As regards a qualifying aggravating circumstance, the same
must be alleged in the information because it is an integral part of
the offense.
Generic aggravating circumstances, even if not alleged in the
information, may be proven during the trial over the objection of the
defense and may be appreciated in imposing the sentence. Such evi-
dence merely forms part of the proof of the actual commission of the
offense and does not violate the constitutional right of the accused
to be informed of the nature and cause of accusation against him.
(People vs. 139 SCRA 115, 121, L-62833, Oct. 8, 1985, citing
earlier cases)
Where, in an information for simple theft, the qualifying cir-
cumstance of grave abuse of confidence has not been alleged, said cir-
cumstance cannot qualify the crime committed but must be regarded

330
Art. 13 AGGRAVATING CIRCUMSTANCES
Effect and Penalty

only as a generic aggravating circumstance. (People vs. Abella, C.A.,

45 O.G. 1802)

If not alleged in the information, treachery is only generic aggravat-

ing circumstance.
What is not clear to us is, why the prosecuting attorney did not
in this case charge the crime of murder, instead of mere homicide.
Although this circumstance of treachery is proven, inasmuch as it
was not expressly alleged in the information, it may be used only as
an aggravating circumstance but not to qualify the killing as murder.
(People vs. Alcantara, 45 O.G. 3451; People vs. Jovellano, No.
March 27, 1974, 56 SCRA 156, 163)
Treachery is merely a generic aggravati n g ci rcu mstan ce
when not alleged in the information but just proven at the trial.
(People vs. Estillore, No. L-68459, March 4, 1986, 141 SCRA 456
,
461 ; People vs. Cantre, G.R. No. 70743 , June 4 , 1990 , 186
76, 79)

Aggravating circumstances which do not have the effect

of increasing the penalty.
Aggravating circumstances (a) which in themselves constitute a
crime specially punishable by law, or (b) which are included by
the law in a crime and prescribing the penalty therefor
shall not be taken into account for the purpose of increasing the
penalty. (Art. 62, par. 1)
Examples:
a. "That the crime be committed by means of fire, x x
x explosion" (Art. 14, par. 12) is in itself a crime of arson
(Art. or crime involving destruction. (Art. 324) It is
not to be considered to increase the penalty for the crime
of arson or for the crime involving destruction.
b. "That the act x x x be committed in the dwelling of the
offended party" (Art. 14, par. 3) or "that the crime be com-
mitted after an unlawful entry" (Art. 14, par. 18), or "that
as a means to the commission of a crime a wall, roof, floor,
door, or window be broken (Art. 14, par. 19) is included by
Art. 299 in robbery in an inhabited house. It shall
331
 AGGRAVATING CIRCUMSTANCES Art. 13
Application

not be taken into account for the purpose of increasing the

penalty for that kind of robbery.
2. The same rule shall apply with respect to any aggravating
circumstance inherent in the crime to such a degree that it must
of necessity accompany the commission thereof. (Art. 62, par. 2)
Examples:

a. Evident premeditation is inherent in theft, robbery, estafa,

adultery and concubinage.
b. Taking advantage of public position is inherent in crimes
where the offenders, who are public officers, committed the
crime in the exercise of their functions, such as in bribery,
malversation, etc.

Aggravating circumstances which are personal to the of-

fenders.
Aggravating circumstances which arise: (a) from the moral
attributes of the offender, or (b) from his private relations with the
offended party, or (c) from any other personal shall only serve to
aggravate the liability of the principals, accomplices, and accessories
as to whom such circumstances are attendant. (Art. 62, par. 3)
Examples:

1. A, with evident premeditation, gave B to kill

B i mmed i atel y killed Evident premeditation is an
aggravating circumstance which arises from the moral
attribute of A. It shall serve to aggravate only the liability
of A, but not that of B.
2. A, stepson of B, killed the latter. C, knowing that A killed B
without justification, buried the dead body of B to prevent
the discovery of the crime. The private relation of A with B
shall serve to aggravate only the liability of A. It shall not
serve to aggravate the liability of C, the accessory. (Art.
19, par. 2)
3. A, who was previously convicted by final judgment of theft
and served sentence therefor, and B committed robbery.
Both were prosecuted and found guilty after trial. Upon
his conviction for robbery, A was a recidivist. Recidivism

332
Art. 13 AGGRAVATING CIRCUMSTANCES
Aggravating Circumstances Not Presumed

is an aggravating circumstance which arises from personal

cause. It shall serve to aggravate only the liability of A,
but not that of B.

Aggravating circumstances which depend their

application upon the knowledge of the offenders.
The circumstances which consist in the material execution
of the act, or (2) in the means employed to accomplish it, shall serve
to aggravate the liability of those persons only who had knowledge
of them at the time of the execution of the act or their cooperation
therein. (Art. 62, par. 4)

Illustrations:
1. In his house, A ordered B to kill A and B did not talk
about the manner C would be killed. B left the house of
A and looked for B found C and killed the latter with
treachery. (Art. 14, par. 16) The aggravating circumstance
of treachery consists in the material execution of the
act. Since A had no knowledge of it, treachery shall only
aggravate the liability of B.
2. A ordered B and C to kill D, instructing them to wait
until nighttime so that the crime could be committed with
impunity. B and C killed D at nighttime. Although A did
not take direct part in the commission of the crime, the
aggravating circumstance of nighttime shall also aggravate
his liability, because he had knowledge of it at the time of
the execution of the act by B and

Aggravating circumstances not presumed.

An aggravating circumstance should be proved as fully as the
crime itself in order to increase the penalty. (People vs. Barrios, No.
L-34785, July SCRA citing People vs.
77 SCRA 238, 246; People vs. G.R. No. 69374 , March 16,
1989, 171 SCRA 291 , 302)

333
 Chapter Four
CIRCUMSTANCES WHICH AGGRAVATE
CRIMINAL LIABILITY

Art. 14 . Aggravating circumstances. — Th e f o l l o w i n g ar

e aggravatin g circumstances :
Tha t a d v a n t a g e b e t a k e n b y th e o f hi s public
position .
2 . Th a t th e c r i m e b e c o m m i t t e d i n c o n t e m p t o f o r wi t h
i n s u l t t o th e p u b l i c a u t h o r i t i e s .
3 . Tha t th e ac t b e c o m m i t t e d w i t h in sul t o r i n d i sr eg ar
d o f th e r e s p e c t du e th e o f f e n d e d p ar t y o n a c c o u n t o f hi s
age , o r sex , o r tha t i t b e c o m m i t t e d i n th e d w e l l i n g o f
th e of- f e n d e d p arty , i f th e l a t t e r ha s no t g i v e n p r o v o c a t i o n .
4 . Th a t th e ac t b e c o m m i t t e d w i t h a b u s e o f c o n f i d e n c
e o r obviou s ungratefulness .
5. T h a t th e c r i m e b e c o m m i t t e d i n th e p a l a c e o
f th e C h i e f E x e c u t i v e , o r i n hi s p r e s e n c e , o r w h e r e p u b l i c
a u t h o r i t i e s ar e e n g a g e d i n th e d i s c h a r g e o f t h e i r d u t i e s o r i
n a p l a c e d e d i c a t e d to r e l i g i o u s w o r s h i p .
6 . Tha t th e c ri m e b e c o m m i t t e d i n th e n i g h t t i m e o r i
n a n u n i n h a b i t e d p l a ce , o r b y a b an d , w h e n e v e r su c h ci rcu m
- s t a n c e s ma y f a c i l i t a t e th e c o m m i s s i o n o f th e o ff en se .
W h e n e v e r mor e th a n th re e a r m e d m a l e f a c t o r s shall hav e
a ct e d t o g e t h e r i n th e c o m m i s s i o n o f a n offen se, i t shall b e
d e e m e d t o hav e b e e n c o m m i t t e d b y a band .
7 . Tha t th e cr i m e be c o m m i t t e d on th e o c c a s i o n of a
c o n f l a g r a t i o n , s h i p w r e c k , e a r t h q u a k e , e p i d e m i c , o r ot h e r
calamit y o r misfortune .
8 . Tha t th e cr i m e b e c o m m i t t e d wi t h th e aid o f arme
d me n o r p e r s o n s wh o i n s u r e o r afford i mp u n i t y .

333
 Art. 14 AGGRAVATING CIRCUMSTANCES
Provisions

9. . T h a t t h e a c c u s e d is a r e c i d i v i s t .
A re ci d i vi st i s on e wh o , at th e tim e of hi s trial for on e
crime, shall hav e b ee n p r e v i o u s l y c o n v i c t e d b y final j u d g m e n
t o f a n o t h e r crim e e m b r a c e d i n th e sam e title o f thi s Cod e.
10. Tha t th e o ff en d e r ha s b ee n p r e v i o u s l y p u n i s h e d
for a n offense t o w h i c h th e la w a t t a c h e s a n equa l o r g r e a t e r
pen - alty or for tw o or mor e c r i m e s to w h i c h i t a t t a c h e s a
l i gh te r p en a l t y .
Tha t th e c ri m e be c o m m i t t e d in c o n s i d e r a t i o n of a
p ri ce, r e w a r d , o r p r o m i s e .
12. That th e cri m e b e c o m m i t t e d b y m e a n s o f i n u n d a t i o n
, fire, p o i s o n , e x p l o s i o n , s t r a n d i n g of a v e s s e l or i n t e n t i o n a l
d a m a g e t h e r e t o , d e r a i l m e n t o f a l o c o m o t i v e , o r b y th e us e o
f an y ot h e r artifice i n v o l v i n g gr ea t w a s t e an d ruin .
13. Tha t th e ac t b e c o m m i t t e d wi t h e v i d e n t p r e m e d i t a -
tion
.
14. Tha t craft, frau d , o r d i s g u i s e b e e m p l o y e d .
15. Tha t a d v a n t a g e b e t a k e n o f s u p e r i o r s t r e n g t h , o r
m e a n s b e e m p l o y e d t o w e a k e n th e d e f e n s e .
16. Tha t th e ac t b e c o m m i t t e d w i t h t r e a c h e r y

T h e r e i s t r e a c h e r y w h e n th e o f f e n d e r c o m m i t s an y o f th
e cri me s a ga i n s t th e p erson , e m p l o y i n g m e a n s , m e t h o d s o r
form s i n th e e x e c u t i o n t h e r e o f w h i c h ten d d i r e c t l y an d
s p e c i a l l y t o i n s u r e it s e x e c u t i o n , w i t h o u t ris k t o h i m s e l f
a r i s i n g fro m th e d e f e n s e w h i c h th e o f f e n d e d p a rt y m i gh t
make .
Tha t m e a n s b e e m p l o y e d o r c i r c u m s t a n c e s b r o u g h t
ab ou t w h i c h ad d i g n o m i n y t o th e n a t u r a l effec ts o f th e act.
18. Tha t th e c r i m e b e c o m m i t t e d after a n u n l a w f u l en -
try.
T h er e i s a n u n l a w f u l e n t r y w h e n a n e n t r a n c e i s e f f e c t e d
b y a wa y no t i n t e n d e d for th e p u r p o s e .
19. Tha t as a m e a n s to th e c o m m i s s i o n of a cr i m e a wall

334
, roof, f l o or , door , o r w i n d o w b e b r o k e n .

334
 AGGRAVATING CIRCUMSTANCES Art. 14
Advantage Taken of Public Position Par. 1

20. . Tha t th e c r i m e b e c o m m i t t e d w i t h th e ai d o f
p e r s o n s u n d e r f i f t e e n y e a r s o f age , o r b y m e a n s o f m o t o r
v e h i c l e , air- sh i p s , o r o t h e r s i m i l a r m e a n s .
Tha t th e w r o n g d o n e i n th e c o m m i s s i o n o f th e c ri m
e b e d e l i b e r a t e l y a u g m e n t e d b y c a u s i n g o th e r w r o n g no t
n e c e s - sar y for it s c o m m i s s i o n .

To be appreciated, qualifying and aggravating circumstances

must be alleged in the information.
Pu rsuan t to the 2000 Revised Rules of Criminal Procedure,
every Complaint or Information must state not only the qualifying
but also the aggravati ng circumstances. This rule may be given
retroactive effect in the light of the w el l - estab lished rule that
statutes regulating the procedure of the courts will be construed
as applicable to actions pending and und etermi ned at the time of
their passage. The aggravatin g circumstances of evident preme-
ditation, dwelling and unlawful entry, not having been alleged in the
Information, may not now be appreciated to enhance the liability of
accused-appellant. (People vs. Antonio, G.R. No. 144266, November
27, 2002)

If not they may still be considered in the award of

damages.
Although the aggravating circumstances in question cannot
be appreciated for the purpose of fixing a heavier penalty in this
case, they should, however, be considered as bases for the award of
exemplary damages, conformably to current jurisprudence. (People
vs. G.R. Nos. 124830-31, June 27, 2003)

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

position.

Basis of this aggravating circumstance.

This is based on the greater perversity of the offender, as shown
by the personal circumstance of the offender and also by the means
used to secure the commission of the crime.

335
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 1 Advantage Taken of Public Position

Applicable only when the offender is a public

The aggravating circumstance that advantage be taken by the
offender of his public position applies only when the person commit-
ting the crime is a public officer who takes advantage of his public
position.

Meaning of "advantage be taken by the offender of his public

position."
The public officer must use the influence, prestige or ascend-
ancy which his office gives him as the means by which he realizes his
purpose. The essence of the matter is presented in the inquiry,
the accused abuse his office in order to commit the (U.S. vs.
Rodriguez, 19 Phil. 150, 156-157)
Examples:
a. The accused took advantage of his public position. He could
not have maltreated the victim if he was not a policeman
on guard duty. Because of his position, he had access to
the cell where the victim was confined. The prisoner was
under his custody. (People vs. Ural, No. March
27, 1974, 56 SCRA 138, 145)
b. There is abuse of public position where a police officer in
the course of investigation of a charge against him for grave
threats shot the complainant in a treacherous manner.
(People vs. Reyes, No. Feb. 27, 1976, 69 SCRA
474, 480-481)
Advantage of public position is present where the accused used
their authority as members of the police and constabulary to
disarm the victim before shooting him. (People vs. Asuncion,
G.R. No. 83870, Nov. SCRA 396, 402)

This aggravating circumstance is not present when a Con-

gressman offered resistance to a peace
In the case of a Congressman who offered resistance to his
captor upon being surprised in a gambling house, this aggravating
circumstance is not present. (People vs. Veloso, 48 Phil. The
reason for this ruling is that the Congressman did not take advantage
of the influence or reputation of his office.

336
 AGGRAVATING CIRCUMSTANCES Art. 14
Advantage Taken of Public Position
Par. 1

This aggravating circumstance is present when a councilor

collects fines and misappropriates them.

U.S. vs. Torrida

(23 Phil. 189)

Facts: The accused, shortly after entering upon his duties as

councilor of the town of ordered that deaths of all large animals
must be reported to him as councilman. As a result of this instruction,
the owners of several such animals were induced to pay the accused
supposed fines on the belief that such were required by a municipal
ordinance. He spent the money paid to, and received by him as fines.
Held: The fact that the accused was councilor at the time placed
him in a position to commit these crimes. If he were not a councilor he
could not have induced the injured parties to pay these alleged fines. It
was on account of his being councilor that the parties believed that he
had the right to collect fines and it was for this reason that they made
the payments. It is true that he had no right to either impose or collect
any fine whatsoever and it is likewise true that a municipal councilor is
not an official designated by law to collect public fines, but these facts
do not destroy or disprove the important fact that the accused did, by
taking advantage of his public position, deceive and defraud the injured
parties out of the money they paid him.
Note: The crime committed by Torrida is estafa by means of
deceit. (Art. 315, par. 2)

When the public did not take advantage of the

of his position, this aggravating circumstance is not present.

U.S. vs. Dacuycuy

(9 Phil. 84)

Facts: Thirty-nine (39) persons requested the accused, then a

councilor, to purchase cedulas for them giving him He took
only 16 cedulas, and spent the rest of the money.
Held: When a public officer commits a common crime independ-
ent of his official functions and does acts that are not connected with
the duties of his office, he should be punished as a private individual
without this aggravating circumstance.
Note: In this case, Dacuycuy did not avail himself of the influ-
ence, prestige or ascendancy which his position carried with it, when

337
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 1 Advantage Taken of Public Position

he committed the crime of estafa with abuse of confidence. (Art. 315,

par. He received the money in his private capacity. He was requested
by the people to buy cedula certificates for them.

Likewise, the mere fact that the defendant, a justice of the peace,
misappropriated the money he received from the debtor in an extra-
judicial agreement under obligation to turn it over to the creditor,
does not aggravate his liability, inasmuch as no legal proceedings were
pending at the time of this agreement and the debt was not reduced
to judgment. He did not take advantage of his official position in the
commission of the crime of estafa. (U.S. vs. Estabaya, 36 Phil. 64,
67)

There must be proof that the accused took advantage of his public
position.
It is not shown that accused-appellant took advantage of his
position as confidential agent of Mayor Claudio in shooting the victim,
or that he used his "influence, prestige or ascendancy" in killing the
deceased. Accused-appellant could have been shot by Bayona without
having occupied the said position. Thus, in the absence of proof that
advantage was taken by accused-appellant of his being a confidential
agent, the aggravating circumstance of abuse of public position could
not be properly appreciated against him. (People vs. Ordiales, No.
L-30956, Nov. 23, 1971, 42 SCRA 238, 245-246)

Peace officers taking advantage of their public positions.

A policeman in uniform who abducted a girl by availing himself
of his position (U.S. vs. 34 Phil. or the chief of police
who, during the search of a boat by means of intimidation, obtained
money from the crew (People vs. 51 Phil. 393 , 394-395), or
a special agent of the military police who committed robbery with
homicide with the gun which he had been authorized to carry as a
peace officer (People vs. Madrid, 88 Phil. committed the crime
by taking advantage of his public position.
In the case of Fortuna vs. People, G.R. No. 135784 , Dec. 4,
2000 , it was held that mere fact that the three (3) accused
were all police officers at the time of the robbery placed them in a
position to perpetrate the offense. If they were not police officers,
they could not have terrified the Montecillos into hording the mobile

338
 AGGRAVATING CIRCUMSTANCES
Art. 14
Advantage Taken of Public Position
Par. 1

patrol car and forced the m to hand over their money. Precisely it
was on account of their authority that the Montecillos believed
that Mario had in fact committed a crime and would be brought
to the police station for in vestigation unless they gave them what
they demanded."

Wearing uniform is immaterial in certain cases.

Although he was off-duty and there is evidence that he was in
civilian clothes at the time, it is nonetheless obvious that knowing that
the offended party was aware of his being a policeman, and sought to
impose, illegally, his authority as such, the penalty provided by law
must be meted out in its maximum period. (People vs. Tongco, 3 C.A.
Rep. 1071)
The mere fact that he was in fatigue uniform and had army rifle
at the time is not sufficient to establish that he misused his public
position in the commission of the crimes. (People vs. No. L-
18793, Oct. 1968, 25 SCRA 468 , 471-472)

Failure in official duties is tantamount to abusing of office.

But even if defendant did not abuse his office, if it is proven that
he has failed in his duties as such public officer, this circumstance
would warrant the aggravation of his penalty.
Thus, the fact that defendant was the vice-president of a town
at the time he voluntarily joined a band of brigands made his liability
greater. (U.S. vs. Cagayan, 4 Phil. 424, 426)

Not aggravating when it is an integral element of, or

inherent in, the offense.
This circumstance, taking advantage of public position, cannot
be taken into consideration in offenses where taking advantage of
official-position is made by law an integral element of the crime, such
as in malversation under Art. or in falsification of document
committed by public officers under Art. 171. (People vs. Tevez, 44
Phil. 275, 277)
Taking advantage of public position is inherent in the case of
accessories under Art. 19, par. 3, and in crimes committed by public
officers. (Arts. 204 to 245)

339
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 2 Contempt or Insult to Public Authorities

Not aggravating if accused could have perpetrated the crime

without occupying police position.
In this case, there was no showing that accused-appellant took
advantage of his being a policeman to shoot Jelord Velez or that he
used his "influence, prestige or ascendancy" in killing the victim. Ac-
cused-appellant could have shot Velez even without being a policeman.
In other words, if the accused could have perpetrated the crime even
without occupying his position, there is no abuse of public position.
In People vs. Herrera, the Court emphatically said that the mere fact
that accused-appellant is a policeman and used his government is-
sued .38 caliber revolver to kill is not sufficient to establish that he
misused his public position in the commission of the crime. (People
vs. G.R. Nos. 140407-08, January 15, 2002)

Par. 2. — That the crime be committed in contempt of or with

insult to the public authorities.

Basis of this aggravating circumstance.

This is based on the greater perversity of the offender, as shown
by his lack of respect for the public authorities.

Requisites of this circumstance:

That the public authority is engaged in the exercise of his
functions.
That he who is thus engaged in the exercise of said functions
is not the person against whom the crime is committed.
(U.S. vs. Rodriguez, 19 Phil. People vs. Siojo, 61
Phil. 307, 317)
3. The offender knows him to be a public authority.
4. His presence has not prevented the offender from commit-
ting the criminal act.

Example of this aggravating circumstance:

A and B are quarreling on a street and the municipal mayor,
upon passing by, attempts to separate them to stop the quarrel. Not-
withstanding the intervention and the presence of the mayor, A and

340
 AGGRAVATING CIRCUMSTANCES Art. 14
Contempt or Insult to Public Authorities Par. 2

B continued to quarrel until A succeeds in killing B. In this case, A

commits the crime of homicide with the aggravating circumstance of
a contempt of or with insult to the public authority."

Meaning of "public authority."

A public authority, sometimes also called a person in authority,
is a public officer who is directly vested with jurisdiction, that is, a
public officer who has the power to govern and execute the laws. The
councilor, the mayor, the governor, etc., are persons in authority.
The barangay captain and barangay chairman are also persons in
authority. (Art. 152, as amended by P.D. No. 1232, Nov. 7, 1977)

Not applicable when crime is committed in the presence of

an agent only.
Paragraph 2 of Art. 14 was not applied in a case where the crime
was committed in the presence of the chief of police of a town, because
he is not a public authority, but an agent of the authorities. (People
vs. Siojo, 61 Phil. 307, 311 , 317; People vs. Verzo, No. Dec.
26, 1967, 21 SCRA 1403, 1410)
An agent of a person in authority is "any person who, by direct
provision of law or by election or by appointment by competent
authority, is charged with the maintenance of public order and
the protection and security of life and property, such as barrio
councilman, barrio policeman and barangay leader, and any person
who comes to the aid of persons in authority." (Art. 152, as amended
by BP 873)

The crime should not be committed against the public

thority.
If the crime is committed against a public authority while he is
in the performance of his official duty, the offender commits direct
assault (Art. 148) without this aggravating circumstance, because it
is not a crime committed "in contempt of or with insult" to him, but
a crime directly committed against him.
This rule was not followed in the case of People vs. Santok,
G.R. No. May 30, 1963, where it was held that the crime
committed was homicide with the aggravating circumstance of the
commission of the offense in contempt of the public authority, since

341
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Party
the deceased was shot while in the performance of his official duty
as barrio lieutenant.
The accused should have been prosecuted for and convicted of a
complex crime of homicide with direct assault (Art. in relation to
Art. 48 and Art. 148, Revised Penal Code), without the aggravating
circumstance.

Knowledge that a public authority is present is essential.

Lack of knowledge on the part of the offender that a public author-
ity is present indicates lack of intention to insult the public authority.
Thus, if A killed B in the presence of the town mayor, but A did
not know of the presence of the mayor, this aggravating circumstance
should not be considered against A.

Presence of public authority has not prevented offender

committing the crime.
An offense may be said to have been committed in contempt of
a public authority when his presence, made known to the offender,
has not prevented the latter from committing the criminal act.

Par. 3. — That the act be committed (1) with insult or in

disregard of the respect due the offended party on
account of his (a) rank, (b) age, or (c) sex, or (2) that
it be committed in the dwelling of the offended party,
if the latter has not given provocation.

When all the four aggravating circumstances are present,

must they be considered as one?
Four circumstances are enumerated in this paragraph, which
can be considered single or together. If all the four circumstances are
present, they have the weight of one aggravating circumstance only.
(Albert) But see the case of People vs. Santos, 91 Phil. 320, cited under
paragraph 6, Art. 14.
The aggravating circumstances of sex and age of the injured
party as well as those of dwelling place and nighttime must also be
taken into account. (People vs. Taga, 53 Phil. 273)

342
 AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
Basis of these aggravating circumstances.
These circumstances are based on the greater perversity of the
offender, as shown by the personal circumstances of the offended
party and the place of the commission of the crime.

Applicable only to crimes against persons or honor.

This circumstance (rank, age or sex) may be taken into account
only in crimes against persons or honor.
Thus, in the case of the robbery of a thing belonging to the
President, the aggravating circumstance of disregard of respect due
the offended party cannot be taken into account, because the mere
fact that the thing belongs to the President does not make it more
valuable than the things belonging to a private person.

Disregard of the respect due the offended party on account of

his rank, age or sex may be taken into account only in crimes against
persons or honor, when in the commission of the crime, there is some
insult or disrespect to rank, age or sex. It is not proper to consider
this aggravating circumstance in crimes against property. Robbery
with homicide is primarily a crime against property and not against
persons. Homicide is a mere incident of the robbery, the latter being
the main purpose and object of the criminal. (People vs. No.
L-32040, Oct. 25, 1977, 79 SCRA 570, 576-577)

Meaning of "with insult or in disregard."

It is necessary to prove the specific fact or circumstance, other
than that the victim is a woman (or an old man or one of high rank),
showing insult or disregard of sex (or age or rank) in order that it
may be considered as aggravating circumstance. (People vs. Valencia,
C.A., 43 O.G. 3740) There must be evidence that in the commission
of the crime, the accused deliberately intended to offend or insult the
sex or age of the offended party. (People vs. 65 Phil. 548,
550-551)
The circumstance of old age cannot be considered aggravating.
There was no evidence that the accused deliberately intended to of-
fend or insult the age of the victim. (People vs. Diaz, 70 O.G. 4173,
citing People vs. Gervacio, 24 SCRA 960; People vs. Mangsant, 65
Phil. 548; People vs. 88 Phil. 35, 44)

343
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
With insult or in disregard of the respect due the offended
party on account —
1. of the rank of the offended party.
There must be a difference in the social condition of
the offender and the offended party.
For example, a private citizen who attacked and in-
jured a person in authority, or a pupil who attacked and
injured his teacher (U.S. vs. Cabiling, 7 Phil. 469, 474),
the act not constituting direct assault under Art. 148 of
the Revised Penal Code.
Also, killing a judge because he was strict or because
of resentment which the accused harbored against him
as a judge, constitutes the aggravating circumstance of
disregard of the respect due the offended party on account
of his rank. (People vs. Valeriano, 90 Phil. 15, 34-35)
Also, an attempt upon the life of a general of the Philip-
pine Army is committed in disregard of his rank. (People
vs. Torres, G.R. No. L-4642, May
Rank was aggravating in the following cases: the
killing of a staff sergeant by his corporal; the killing of
the Assistant Chief of Personnel Transaction of the Civil
Service Commission by a clerk therein; the murder by a
pupil of his teacher; the murder of a municipal mayor; the
murder of a city chief of police by the chief of the secret
service division; assault upon a 66-year-old (now RTC)
judge by a justice of the peace (now municipal judge); the
killing of a consul by a mere chancellor; and the killing of
an army general. (People vs. No. Nov. 20,
SCRA 308, 330-331)

Meaning of rank.
"Rank" refers to a high social position or standing as
a grade in the armed forces; or to a graded official standing
or social position or station; or to the order or place in which
said officers are placed in the army and navy in relation to
others; or to the designation or title of distinction conferred
upon an officer in order to fix his relative position in refer-

344
 AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
to other officers in matters of privileges, precedence,
and sometimes of command or by which to determine his
pay and emoluments as in the case of army staff officers;
or to a grade or official standing, relative position in civil
or social life, or in any scale of comparison, status, grade,
including its grade, status or scale of comparison within a
position. (People vs. supra, at 330)

Proof of fact of disregard and deliberate intent to insult re-

quired.
Disregard of the rank of the victim who was a baran-
gay captain cannot be appreciated as an aggravating
circumstance there being no proof of the specific fact or
circumstance that the accused disregarded the respect due
to the offended party, nor does it appear that the accused
deliberately intended to insult the rank of the victim as
barrio captain. (People vs. No. Nov. 28,
1980, 101 SCRA 332, 347)

2. of the age of the offended

This circumstance is present whe n the offended
person, by reason of his age, could be the father of the
offender. (Viada, 1 Cod. Pen. 326; U.S. vs. 17
Phil. 260 , 264-265 ; U.S. vs. Reguera, 41 Phil. 506 , 517-
518)
This aggravating circumstance applies to an aggres-
sor, 45 years old, while the victim was an octogenarian.
(People vs. Orbillo, G.R. No. L-2444, April 29, 1950)
This aggravating circumstance was applied also in
the case where the person killed was eighty years old and
very weak. (People vs. Gummuac, 93 Phil. 657)
The aggravating circumstance of disregard of age
attended the commission of the crime when the deceased
was 65 while the offenders were 32 and 27 years of age,
respectively. (People vs. Zapata, G.R. No. Feb.
27, 1960, 107 Phil. 103, 108)
The crime was committed in disregard of the respect
due to the victim on account of age and relationship,

345
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
the accused being a grandson of the deceased. (People
vs. No. May 16, 1980, 97 SCRA 549,
556)
The circumstance of lack of respect due to age applies
in cases where the victim is of tender age as well as of old
age. This circumstance was applied in a case where one of
the victims in a murder case was a 12-year-old boy. Here,
the victim was only 3 years old. (People vs. No. L-
49430, March SCRA citing U.S. vs.
38 Phil. 746. Also, People vs. Enot, No. Oct.
30, 1962, 6 SCRA 325, 329-330, where one of the victims
was only five years old, another, a minor, and the third, a
baby)
But when the injuries inflicted upon a 9-year-old girl
were any thought or intention x x x of heaping
contumely or insult upon the child because of her sex or
her tender this circumstance was not considered ag-
gravating. (U.S. vs. Dacquel, 781 ,

Deliberate intent to offend or insult required.

The circumstance of old age cannot be considered
aggravating in the absence of evidence that the accused
deliberately intended to offend or insult the age of the
victim. (People vs. Diaz, No. L-24002, Jan. 21 , 1974, 55
SCRA

Disregard of old age not aggravating in robbery with homi-

cide.
It is not proper to consider disregard of old age in
crimes against property. Robbery with homicide is pri-
marily a crime against property and not against persons.
Homicide is a mere incident of the robbery, the latter be-
ing the main purpose and object of the criminal. (People
vs. Nabaluna, No. L-60087, July 7, 1986, 142 SCRA 446,
458)

This circumstance applies to tender age as well as to

old age. This circumstance was applied in a murder case
where one of the victims was a boy twelve years of age.
(U.S. vs. Butag, 38 Phil. 746)

346
 AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
3. of the sex of the offended party.
This refers to the female sex, not to the male sex.
Examples:
a. When a person compels a woman to go to his house
against her will, the crime of coercion with the aggra-
vating circumstance of disrespect to sex is committed.
(U.S. vs. Quevengco, 2 Phil. 412, 413)

b. The accused who, upon knowing the death of their

relative, and not being able to take revenge on the
killers, because of their imprisonment, selected and
killed a female relative of the killers in retaliation,
committed the act with this aggravating circum-
stance. (People vs. Dayug, 49 Phil. 423 , 427)

Direct assault upon a lady teacher. (Sarcepuedes vs.

People, 90 Phil. 230; People vs. Manapat, C.A., 51 O.G.
894)

No disregard of respect due to sex.

A and B (a woman) were sweethearts. B told A that she no
longer cared for him and that she loved another man. A stabbed B to
death. Held: It was not proved or admitted by the accused that when
he committed the crime, he had the intention to offend or disregard
the sex of the victim. (People vs. Mangsant, 65 Phil. 548, 550)

Killing a woman is not attended by this aggravating circumstance if

the offender did not manifest any specific insult or disrespect towards
her sex.
Disregard of sex is not aggravating in the absence of evidence
that the accused deliberately intended to offend or insult the sex of the
victim or showed manifest disrespect to her womanhood. (People vs.
Puno, No. June 29, 1981, 105 SCRA citing People
vs. Mangsant, 65 Phil. 548; People vs. Mori, January 31,
1974, 55 SCRA 382; People vs. 90 Phil. 379; U.S. vs. De Jesus,
14 Phil. 190)

Not applicable in certain cases.

This aggravating circumstance is not to be considered in the
following cases:
347
 AGGRAVATING CIRCUMSTANCES
Disregard of Rank, Age, Sex or Dwelling
of Offended Party
When the offender acted with passion and obfuscation.
When a man is blinded with passion or obfuscation,
this being the condition of the mind, he could not have
been conscious that his act was done with disrespect to the
offended party. (People vs. Ibahez, No.
March 20, 1948)
When there exists a relationship between the offended party
and the offender.
Facts: After a decree of divorce, the wife was given the
custody of their baby girl. Thereafter, the accused meeting
his former wife, asked her to allow him to visit their daugh-
ter, but she turned down his request. The accused became
infuriated and pointed his gun at her as she boarded a
The gun went off and she was injured.
Held: Notwithstanding the divorce decree, there still
existed some relationship between the accused and his
divorced wife, which had direct bearing with their only
child, for which reason, the accused was asking his former
wife to allow him to visit their daughter entrusted to her
by order of the court. The accused had to deal with no
other person but with his former wife to visit his daughter.
(People vs. Valencia, C.A., 43 O.G. 3740)

The record does not show that the commission of

crime in question was attended by any offense to or
disregard of the age of the offended party, about 75 or 65
years old, taking into account the circumstances under
which the act in question developed and the pre-existing
relations between the accused and the deceased. (People
vs. 51 Phil. 963 , 965)
There existed in this case a relation of employer and
laborer, because the deceased was a laborer of the offender.
When the condition of being a woman is indispensable in
the commission of the crime.
Thus, in (a) parricide, (b) rape, (c) abduction, or (d)
seduction, sex is not aggravating.
Rape being a sex crime or one committed against a
woman, the trial court erred in considering sex as an ag-

348
 AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
circumstance in imposing the penalty, it being
inherent in the crime of rape. (People vs. Lopez, 107 Phil.

Disregard of sex absorbed in treachery.

There was disregard of sex because the blouse of the victim was
needlessly removed, but the circumstance is absorbed in treachery
which is attendant. (People vs. Clementer, No. L-33490, Aug.
58 SCRA 742, 749, citing People vs. Mangsant, 65 Phil. 548; People
vs. 88 Phil. 35)

But see People vs. Lapaz, G.R. No. 68898, March 31, 1989, 171
SCRA 539, at 550, where it was held that the aggravating circumstanc-
es of disregard of sex and age are not absorbed in treachery because
treachery refers to the manner of the commission of the crime, while
disregard of sex and age pertains to the relationship of the victim.

That the crime be committed in the dwelling of the offended

party.
Dwelling must be a building or structure, exclusively used for rest
and comfort. A house and store" (People vs.
89 Phil. 233 , 239), or a market stall where the victim slept is not a
dwelling.

Basis of this aggravating circumstance.

This is based on the greater perversity of the offender, as shown
by the place of the commission of the offense.
Dwelling is considered an aggravating circumstance primarily
because of the sanctity of privacy the law accords to human abode.
According to one commentator, one's dwelling place is a "sanctuary
worthy of respect" and that one who slanders another in the latter's
house is more guilty than he who offends him elsewhere. (People vs.
Balansi, G.R. No. 77284, July 19, 1990, 187 SCRA 566, 575)

What aggravates the commission of the crime in one's dwell-

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

349
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Party
2. The violation of the sanctity of the home by trespassing
therein with violence or against the will of the owner. (Dis-
senting opinion of Justice Villareal, People vs. 68
Phil. 635, 637)
home is a sort of sacred place for its owner. He who goes
to another's house to slander hurt him or do him wrong, is more
guilty than he who offends him elsewhere." (Viada, 5th edition, Vol.
II, pp. 323-324)
The evidence must show clearly that the defendant entered the
house of the deceased to attack him. (People vs. Lumasag, 56 Phil.
19, 22; People vs. Manuel, Nos. Aug. 29, 1969, 29 SCRA
337, 345)

Offended party must not give provocation.

As may be seen, a condition sine qua non of this circumstance,
is that the offended party "has not given provocation" to the offender.
When it is the offended party who has provoked the incident, he loses
his right to the respect and consideration due him in his own house.
(People vs. Ambis, supra)

Meaning of provocation in the aggravating circumstance of

dwelling.
The provocation must be:
Given by the owner of the dwelling,

(2) Sufficient, and

(3) Immediate to the commission of the crime.
If all thes e conditions are present, the offended party is
deemed to have given provocation, and the fact that the crime is
committed in the dwelling of the offended party is not an aggravating
circumstance.
On the other hand, if any of those conditions is not present, the
offended party is deemed not to have given provocation, and the fact
that the crime is committed in the dwelling of the offended party is
an aggravating circumstance.

350
 AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
There must be close relation between provocation and com-
mission of crime in the dwelling.
Although the Code provides that the aggravating circumstance
of dwelling cannot be properly taken into account if the provocation
was given by the offended party, this is true only when there exists
a close relation between the provocation and the commission of the
crime in the dwelling of the person from whom the provocation came.
(People vs. 60 Phil. 279, 288)

Because the provocation is not immediate, dwelling is ag-

gravating.
The defendant learned that the deceased and the former's wife
were maintaining illicit relations. One night, he went to the house of
the deceased and killed him then and there. During the trial of the
case, the defense contended that the deceased provoked the crime
by his illicit relations with the wife. Held: That the
provocation (the illicit relations) was not given immediately prior to
the commission of the crime. Dwelling is still aggravating. (People
vs. Dequina, 60 Phil. 279, 288-289)
Even if the defendant came to know of the illicit relations
i mmed i atel y before he went to the house of the deceased, the
aggravating circumstance of dwelling may still be considered against
the defendant because the provocation (the illicit relations) did not
take place in that house.
If the defendant surprised the deceased and the wife of the
defendant in the act of adultery in the house of the deceased, the
aggravating circumstance of dwelling would not exist. (People vs.
Dequina, supra)

Owner of dwelling gave immediate provocation — dwelling

is not aggravating.
Dwelling is not aggravating, although the incident happened in
the house of the victim, where the stabbing was triggered off by his
provocative and insulting acts, for having given sufficient provocation
before the commission of the he has lost his right to the respect
and consideration due him in his own house. (People vs. Atienza, No.
L-39777, Aug. 31 , 1982, SCRA 379, 385)

351
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
in her house, the offended party began to abuse the
daughter of the accused and to call her vile names. The accused
heard the insulting words and appeared in front of the offended
party's house and demanded an explanation. A quarrel ensued, and
the accused, becoming very angry and excited, entered the house
of the offended party and struck her with a bolo. In that case, the
invasion of the privacy of the offended party's home was the direct
and immediate consequence of the provocation given by her. No
aggravating circumstance of dwelling. (U.S. vs. 23 Phil. 10,
12)

Prosecution must prove that no provocation was given by

the offended party.
Tha t th e offen ded party ha s not give n p r o v o c a t i o n i n
his house is a fact that mus t be shown by the evidence of the
prosecution, as i t cannot be assu med . It is an essen ti al el emen t
of the aggravati ng ci rcumstan ce of dwelling. (People vs. Pak ah ,
81 Phil. 426 , 429 )

Even if the offender did not enter the dwelling, this circum-
stance applies.
The aggravating circumstance of dwelling should be taken into
account. Although the triggerman fired the shot from outside the
house, his victim was inside. For this circumstance to be considered,
it is not necessary that the accused should have actually entered the
dwelling of the victim to commit the offense; it is enough that the
victim was attacked inside his own house, although the assailant
may have devised means to perpetrate the assault from without.
(People vs. No. Jan. 31 , 1969 , 26 SCRA 750
,
760, citing People vs. 86 Phil. 36) Thus, dwelling was held
aggravating where the victim who was asleep in his house was shot
as he opened the door of his house upon being called and awakened
by the accused. (People vs. No. L-24852, Nov. 28 , 1980, 101
SCRA 332 , 346)
Dwelling is aggravating, even if the offender did not enter the
upper part of the house where the victim was, but shot from under
the house. (People vs. Bautista, 79 Phil. 652, 653 , 657)

352
 AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
Even if the killing took place outside the dwelling, it is
vating provided that the commission of the crime was
begun in the dwelling.
Thus, where the accused began the aggression upon the person of
the deceased in the latter's dwelling by binding his hands or by drag-
ging him from his house and after taking him to a place near the house
he killed him, dwelling is aggravating, since the act performed cannot
be divided or the unity resulting from its details be broken up. (U.S. vs.
27 Phil. 432, 438; People vs. Mendova, 100 Phil. 811, 818)

Dwelling is aggravating in abduction or illegal detention.

In abduction or illegal detention where the victim was taken
from her or his house and carried away to another place, dwelling is
aggravating. (U.S. vs. Banila, 19 Phil. U.S. vs. Velasquez,
8 Phil. 321 , 324 ; People vs. Masi lu n gan , 104 Phil. 621 , 635)
But dwelling was not aggravating in a case where the deceased
was called down from his house and he was murdered in the vicinity
of the house. (U.S. vs. Ramos, 1 Phil. 192, 193; People vs. Lumasag,
56 Phil. 19, 22-23)

What dwelling includes.

Dwelling includes dependencies, the foot of the staircase and
enclosure under the house. (U.S. vs. Tapan, 20 Phil. 211 , 213; People
vs. Alcala, 46 Phil. 739, 744)
But, in People vs. L-38094, Nov. 7, 1979, 94 SCRA
where the victim was stabbed at the foot of their stairs,
dwelling was not aggravating. Aquino, concurring and dissenting,
said that dwelling is aggravating because the killing took place at
the foot of the stairs of the victim's (p. 241)
If the deceased was only about to step on the first rung the lad-
der when he was assaulted, the aggravating circumstance of dwelling
will not be applicable. (People vs. 102 Phil. 199, 210)

When the deceased had two houses where he used to

live, the commission of the crime in any of them is
attended by the aggravating circumstance of dwelling.
In a case, it was held that the aggravating circumstance of

353
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
dwelling was present, because the deceased was murdered in the
house at Franco Street in Tondo, which was one of the two houses
(the other being at Sampaloc) where the deceased used
to live and have his place of abode during his stay in Manila. (People
vs. Rodriguez, 103 Phil. 1015)

Dwelling is not aggravating in the following cases:

When both offender and offended party are occupants of
the same house (U.S. vs. Rodriguez, 9 Phil.
and this is true even if offender is a servant in the house.
(People vs. Caliso, 58 Phil. 283, 294-295)
Thus, dwelling is not aggravating in rape where the
accused and the offended party are domiciled in the same
house. (People vs. Morales, No. Nov. 94
SCRA 191, 201)
2. When the robbery is committed by the use of force upon
things, dwelling is not aggravating because it is inher-
ent. To commit robbery by the use of force upon things, the
offender must enter the dwelling house, or other building,
of the offended party. (U.S. vs. Cas, 14 Phil. 21 , 22)
But dwelling is aggravating in robbery with violence
against or intimidati on of persons because this class
of robbery can be committed without the necessity of
trespassing the sanctity of the offended party's house.
Entrance into the dwelling house of the offended party
is not an element of the offense. (People vs. Cabato, No.
L-37400, April 15, 1988, 160 SCRA 98, 110; People vs.
Apduhan, Jr., No. Aug. 30, 1968, 24 SCRA 798,
815; People vs. Valdez, 64 Phil. 860, 867)

Dwel li ng is not inherent, hence, aggravating, in

robbery with homicide since the author thereof could
have accomplished the heinous deed without having to
violate the domicile of the victim. (People vs. Mesias, G.R.
No. 67823 , July 9, 1991, 199 SCRA 20, 27, citing earlier
cases)

Note: There are two kinds of robbery: (1) robbery with

violence against or intimidation of persons; and (2)

354
 AGGRAVATING CIRCUMSTANCES Art. 14
Disregard of Rank, Age, Sex or Dwelling Par. 3
of Offended Party
robbery with force upon things in inhabited house.
(Arts. 294 and 299)

3. In the crime of trespass to dwelling, it is inherent or

included by law in defining the crime. This crime can be
committed only in the dwelling of another.
4. . When the owner of t h e dwelling gave sufficient
and
immediate provocation.

5. When the dwelling where the crime was committed did

not belong to the offended party. Thus, when the accused,
upon hearing that their sister was dead, went to her house,
and then and there, upon seeing their sister lying on the
floor with her head resting on the lap of her paramour, and
thinking that the latter had killed her, attacked and killed
him, the aggravating circumstance of dwelling cannot be
considered against the accused. The dwelling did not belong
to the paramour, the person whom they killed. (People vs.
88 Phil. 672 , 675)

6. When the rape was committed in the ground floor of a

two-story structure, the lower floor being used as a video
rental store and not as a private place of abode or residence.
(People vs. G.R. No. 133872, May 5, 2000)

Dwelling was found aggravating in the following cases al-

though the crimes were committed not in the dwelling of
the victims.
The victim was raped in the boarding house where she
was a bedspacer. Her room constituted a as the
term is used in Article 14(3) of the Revised Penal Code.
(People vs. Daniel, No. L-40330, Nov. 20, 1978, 86 SCRA
511 , 531)
The victims were raped in their paternal home where they
were guests at the time and did not reside there. (2 CAR
[2s] 675)
But in People vs. Ramolete, No. March 27,
1974, 56 SCRA 66, dwelling was not considered aggra-
vating because the victim was a mere visitor in the house

355
where he was killed.

356
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 3 Disregard of Rank, Age, Sex or Dwelling
of Offended Party
3. The victim was killed in the house of her aunt where she
was living with her niece. Dwelling was considered aggra-
vating because dwelling may mean temporary dwelling.
(People vs. Badilla, G.R. No. 69317, May 21 , 1990, 185
SCRA 554, 570)
4. The victims, while sleeping as guests in the house of an-
other person, were shot to death in that house. Dwelling
was held aggravating. The Code speaks of not
domicile. (People vs. Basa, 83 Phil. 622, 624)

Dwelling is aggravating when the husband killed his es-

tranged wife in the house solely occupied by her.
The aggravating circumstance of dwelling is present when the
husband killed his estranged wife in the house occupied by her, other
than the conjugal home. (People vs. Galapia, Nos. L-39303-05, Aug.
1, 1978, 84 SCRA 526, 532)

In case of adultery.
When adultery is committed in the dwelling of the husband, even
if it is also the dwelling of the unfaithful wife, it is aggravating because
besides the latter's breach of the fidelity she owes her she
and her paramour violated the respect due to the conjugal home and
they both thereby injured and commited a very grave offense against
the head of the house. (U.S. vs. 33 Phil. 611 , 613)

Note: Adultery is committed by a married woman who shall

have sexual intercourse with a man not her husband and
by the man who has carnal knowledge of her, knowing
her to be married. (Art. 333 , Revised Penal Code)

Dwelling not aggravating in adultery when paramour also lives there.

But the rule is different if both the defendants (the wife and
her paramour) and the offended party were living in the same house
because the defendants had a right to be in the house.
The aggravatin g circumstance of abuse of confidence was
properly applied, when the offended husband took the paramour into
his home, furnished him with food and lodging without charge, and
treated him like a son. (U.S. vs. 23 Phil. 28, 33)

357
 AGGRAVATING CIRCUMSTANCES Art. 14
Abuse of Confidence and Obvious Par. 4
Ungratefulness
The aggravating circumstance present in such case is abuse of
confidence, if the offender availed himself of the favorable position in
which he was placed by the very act of the injured party, thus grossly
abusing the confidence of the latter in admitting him into his dwell-
ing. (U.S. vs. Barbicho, 13 Phil. 616, 620-621)

Dwelling is not included in treachery.

Although and abuse of superior strength are always
included in the qualifying circumstance of treachery, dwelling cannot
be included therein. (People vs. 100 Phil. 537, 544)

Par. 4. — That the act be committed with (1) abuse of confidence,

or (2) obvious ungratefulness.

There are two aggravating circumstances in this paragraph.

Basis of these aggravating circumstances.

They are based on the greater perversity of the offender, as
shown by the means and ways employed.

Abuse of
This circumstance exists only when the offended party has
trusted the offender who later abuses such trust by committing
the crime. The abuse of confidence must be a means of facilitat-
ing the commission of the crime, the culprit taking advantage of
the offended party's belief that the former would not abuse said
confidence.

Requisites:
That the offended party had trusted the offender.
2. That the offender abused such trust by committing a crime
against the offended party.
3. That the abuse of confidence facilitated the commission of
the crime. (People vs. Luchico, 49 Phil. 689, 697; People
vs. Zea, No. June 29, 1984, 130 SCRA 77, 90)

358
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 4 Abuse of Confidence and Obvious
Ungratefulness
Example:
A jealous lover, who had already determined to kill his sweet-
heart, invited her to a ride in the country. The girl, unsuspecting
of his plans, went with him. While they were in the car, the jealous
lover stabbed her. It was held that this aggravating circumstance
was present. (People vs. Marasigan, 70 Phil. 583, 594)

Confidence does not exist.

Facts: After preliminary advances of the master, the female
servant refused and fled. The master followed and after catching up
with her, threw her on the ground and committed the crime of rape.
When the master raped the offended party, she had already lost her
confidence in him from the moment he made an indecent proposal
and offended her with a kiss.

Held: The confidence must facilitate the commission the crime,

the culprit taking advantage of offended belief that the former
would not abuse said confidence. No aggravating circumstance in this
case. (People vs. Luchico, 49 Phil. 689, 697)
There is no abuse of confidence in attempted rape where on the
day of the crime, the accused was in the company of the offended girl,
not because of her confidence in him, but because they were partners
in a certain business. (People vs. Brocal, C.A., 46 O.G. 6163)

Special relation of between accused and victim.

There is no abuse of confidence where the deceased and the
accused happened to be together because the former invited the latter
nightclubbing and to bring with him the money the latter owed the
former. (People vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174,
213-214)

Betrayal of confidence is not aggravating.

Facts: The offended party was living in the house of the ac-
cused, her parents having entrusted her to the care of said accused.
One day, at about 6:30 in the evening, while the offended party was
standing in front of a store watching some children who were play-
ing, the accused approached her, took her by the arm and forcibly
led her to an isolated toilet, hidden from public view by some

359
 AGGRAVATING CIRCUMSTANCES Art. 14
Abuse of Confidence and Obvious Par. 4
Ungratefulness
grasses, and once in the spot, he intimidated her with a knife and
through the use of force and violence succeeded in having sexual
intercourse with her.
Held: There is no showing that the accused was able to commit
the crime by abusing the confidence reposed in him by the offended
party. The accused betrayed the confidence reposed in him by the
parents of the girl. But this is not an aggravating circumstance. It
must be an abuse of confidence that facilitated the commission of the
crime which is aggravating. (People vs. Arthur Crumb, C.A., 46 O.G.
6163)

Killing of child by an amah is aggravated by abuse of confidence.

When the killer of the child is the domestic servant of the
family and is sometimes the deceased child's amah, the aggravating
circumstance of grave abuse of confidence is present. (People vs.
Caliso, 58 Phil. 283 , 294)
Compare this case with the Crumb case. In the Crumb case,
the confidence reposed by the parents of the girl in the offender
could not have facilitated the commission of the crime, because the
offended girl could resist, although unsuccessfully, the commission
of the crime.
In the Caliso case, the victim, being a nine-month-old child,
could not resist the commission of the crime. The confidence reposed
by the parents of the child in the offender facilitated the commission
of the crime.

The between the offender and the offended

party must be immediate and personal.
In the case U.S. vs. Torrida, 23 Phil. it was held that
the mere fact that the voters had reposed confidence in the defendant
by electing him to a public office does not mean that he abused their
confidence when he committed estafa against them.

Abuse of confidence inherent in some felonies.

It is inherent in malversation (Art. 217), qualified theft (Art.
310), estafa by conversion or misappropriation (Art. 315), and qualified
seduction. (Art. 337)

360
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 4 Abuse of Confidence and Obvious
Ungratefulness
Ungratefulness must be obvious, i.e., manifest and clear.
The other aggravating circumstance in paragraph 4 of Art. 14
is that the act be committed with obvious ungratefulness.
This aggravating circumstance was present in the case of the
accused who killed his father-in-law in whose house he lived and who
partially supported him. (People vs. Floresca, G.R. Nos.
May 31 , 1956, 99 Phil. 1044)
The circumstance was present where the accused was living
in the house of the victim who employed him as an overseer and in
charge of carpentry work, and had free access to the house of the
victim who was very kind to him, his family, and who helped him
solve his problems. (People vs. No. L-32633, Nov.
109 SCRA 109, 126)

The circumstance was present where a security guard killed a

bank officer and robbed the bank. (People vs. No.
June 25, 1982, 114 SCRA 487, 494-495)
The circumstance was present where the victim was suddenly
attacked while in the act of giving the assai l an ts their bread and
coffee for breakfast. Instead of being grateful to the victim, at least
by doing him no harm, they took advantage of his h e l p l e s s n e s s
whe n his two arm s wer e use d for c ar ry i n g thei r food, thu s
preventing him from defending hi msel f from the sudden attack.
(People vs. Bautista, No. L - 38624 , July 25 , 1975 , 65 SCRA 460
,
470)

The circumstance exists when a visitor commits robbery or theft

in the house of his host.
But in the case of Mariano vs. People, 68 Phil. 724, 726, the act
of stealing the property of the host is considered as committed with
abuse of confidence.
The mere fact, however, that the accused and the offended
party live in the same house is not in itself enough to hold that
there was present abuse of confidence where the house was not
the property of the offended party. (People vs. Alqueza, 51 Phil.
817 , 819-820 )

361
 AGGRAVATING CIRCUMSTANCES Art. 14
Palace and Places of Commission of Offense Par. 5

Par. 5. — That the crime be committed in the palace of the

Executive, or in his presence, or where public
authorities are engaged in the discharge of their
duties, or in a place dedicated to religious worship.

Basis of the aggravating circumstances.

They are based on the greater perversity of the offender, as
shown by the place of the commission of the crime, which must be
respected.

Place where public authorities are engaged in the

discharge of their duties (par. 5), distinguished from
contempt or insult to public (par. 2)
In both, the public authorities are in the performance of
their duties.
2. . Unde r par. 5 , the public au th ori ti es who are in
the performance of their duties must be in their office;
while in par. the public authorities are performing their
duties outside of their office.
3. Under par. 2, the public authority should not be the of-
fended party; while under par. 5, he may be the offended
party. (U.S. vs. Baluyot, 40 Phil. 385, 395)

Official or religious functions, not necessary.

The place of the commission of the felony (par. 5), if it is
Malacahang palace or a church, is aggravating, regardless of whether
State or official or religious functions are being held.

The Chief Executive need not be in palace. His

presence alone in any place where the crime is committed is enough
to constitute the aggravating circumstance. This aggravating cir-
cumstance is present even if he is not engaged in the discharge of his
duties in the place where the crime is committed.

Other public authorities must be actually engaged in the

performance of duty.
But as regards the place where the public authorities are engaged
in the discharge of their duties, there must be some performance of
public

362
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 5 Palace and Places of Commission of

Thus, where the accused and the deceased who were respectively
plaintiff and defendant in a civil case in the court of a justice of the
peace, having gotten into some trouble, left the courtroom and went
into an adjoining room, where the accused, without any warning,
attacked the deceased with a knife and killed him on the spot, it has
been held that it was error to consider the aggravating circumstance of
having committed the offense in the place where the public authority
was exercising his functions. (U.S. vs. Punsalan, 3 Phil. 260, 261)
Undoubtedly, the reason for not applying the circumstance was
that the court had already adjourned when the crime was committed,
and the attack was made in the adjoining room, not in the very place
where the justice of the peace was engaged in the discharge of his
duties.

An electoral precinct during election day is a place "where public

authorities are engaged in the discharge of their duties."
Thus, the aggravating circumstance the crime be commit-
ted where public authorities are engaged in the discharge of
their duties" was appreciated in the murder of a person in an electoral
precinct or polling place during election day. (People vs. Canoy, G.R.
No. L-6037, Sept.

Place dedicated to religious worship.

Cemeteries are not such a place, however respectable they may
be, as they are not dedicated to the worship of God. The church is a
place dedicated to religious worship.
The aggravating circumstance the crime be committed
x x x in a place dedicated to religious worship" was appreciated in a
case where the accused shot the victims inside the church or in a case
of unjust vexation where the accused kissed a girl inside a church
when a religious service was being solemnized. (People vs.
C.A., 36 O.G. 2018; People vs. CA-G.R. No. April 4,
1951)

Offender must have intention to commit a crime when he

entered the place.
Facts: At the time of the commission of the crime, both the
deceased and defendant were inside a chapel. The deceased placed

363
 AGGRAVATING CIRCUMSTANCES Art. 14
Nighttime, Uninhabited Place or Band Par. 6

his hand on the right thigh of defendant girl, who pulled out with her
right hand a fan knife and stabbed him.
Held: The aggravating circumstance that the killing was done
in a place dedicated to religious worship cannot be legally
where there is no evidence to show that the defendant had murder
in her heart when she entered the chapel on the fatal night. (People
vs. 76 Phil. 174, 182)
This ruling seems to be applicable also in case a crime is com-
mitted in palace or where public authorities are engaged
in the discharge of their duties.

Par. 6. — That the crime be committed in the nighttime, or

(2) in an uninhabited place, (3) by a band, whenever
such circumstance may facilitate the commission of
the offense.

Basis of the aggravating circumstances.

They are based on the time and place of the commission of the
crime and means and ways employed.

Should these circumstances be considered as one only or

three separately?
In its decision of April 5, 1884, the Supreme Court of Spain
held that they constitute only one aggravating circumstance if they
concur in the commission of felony. But in its decision of April 27,
1897, the same court held that its former decision did not declare
an absolute and general rule which would exclude the possibility of
their being considered separately when their elements are distinctly
perceived and can subsist revealing a greater degree
of perversity. (People vs. Santos, 91 Phil. 320, 327-328)
Thus, vs. Cunanan, 110 Phil. 313, 318, nighttime and
band were considered separately.

When aggravating.
Nighttime, uninhabited place or band is aggravating —

364
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 6 Nighttime, Uninhabited Place or Band

When it facilitated the commission of the crime; or

(2) When especially sought for by the offender to insure the
commission of the crime or for the purpose of impunity
(People vs. 79 Phil. 568, 578); or
(3) When the offender took advantage thereof for the purpose
of impunity. (U.S. vs. Billedo, 32 Phil. 574, 579; People vs.
Matbagon, 60 Phil. 887, 893)

Although should not be estimated as an aggravating

circumstance, since the time for the commission of the crime was not
deliberately chosen by the accused; yet, if it appears that the accused
took advantage of the darkness for the more successful consummation
of his plans, to prevent his being recognized, and that the crime
might be perpetrated unmolested, the aggravating circumstance of
nocturnity should be applied.

To take advantage of a fact or circumstance in committing a

crime clearly implies an intention to do so, and one does not avail
oneself of the darkness unless one intended to do so. (People vs.
Matbagon, 60 Phil. 887, 893; People vs. Apduhan, Jr., No.
Aug. 30, 1968, 24 SCRA 798, 816)

Illustration of taking advantage of nighttime.

A, with intent to kill B, had hidden behind a tree and availed
himself of the darkness to prevent his being recognized or to escape
more readily. As soon as B came, A stabbed him to death.

"Whenever such circumstances may facilitate the commis-

sion of the offense."
Paragrap h 6 of Article 14 req ui res only tha t n i g h t t i m e ,
uninhabited place, or band "may facilitate the commission of the
The test fixed by the statute is an objective one. (Dissenting
opinion in People vs. Matbagon, 60 Phil. 887, 894)
Nighttime may facilitate the commission of the crime, when
because of the darkness of the night the crime can be perpetrated
unmolested, or interference can be avoided, or there would be greater
certainty in attaining the ends of the offender. (People vs. Matbagon,
supra)

365
 AGGRAVATING CIRCUMSTANCES Art. 14
Nighttime, Uninhabited Place or Band Par. 6

Nighttime facilitated the commission of the crime to such an

extent that the defendant was able to consummate it with all its
dastardly details without anyone of the persons living in the same
premises becoming aware of what was going on. (People vs. Villas,
No. L-20953, April 21 , 1969, 27 SCRA 947, 952-953)

Meaning of "especially sought for," "for the purpose of im-

punity," and "took advantage thereof."
The Supreme Court considered other tests for the application
of the aggravating circumstances under this paragraph. They are
aggravating when they are "especially sought or when the offender
"took advantage
The offender especially sought for nighttime, when he sought
for it in order to realize the crime with more ease. (People vs. Aquino,
68 Phil. 615, 618)
Nighttime is not especially sought for, when the notion to commit
the crime was conceived only shortly before its commission (People
vs. Pardo, 79 Phil. 568, 578-579), or when the crime was committed
at night upon a mere casual encounter. (People vs. Cayabyab, 274
SCRA 387)
But where the accused waited for the night before committing
robbery with homicide, nighttime is especially sought for. (People vs.
87 Phil. 800)
Nighttime was appreciated against the accused who was living
only 150 meters away from the victim's house and evidently waited
for nightfall to hide his identity and facilitate his escape, knowing
that most barrio folks are already asleep, or getting ready to sleep,
at 9:00 p.m. (People vs. Baring, G.R. No. 87017, July 20, 1990, 187
SCRA 629, 636)
Nighttime was sought for where the accused lingered for almost
three hours in the evening at the restaurant before carrying out their
plan to rob it. (People vs. No. L-57293, June 21 , 1988, 162
SCRA 383, 388)
There is proof that the offenders purposely sought
nighttime to commit the crime. Consider the facts that the accused
tried to ascertain whether the occupants of the house were asleep,
thereby indicating the desire to carry out the plot with the least

366
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 6 Nighttime, Uninhabited Place or Band

detection or to insure its consummation with a minimum of resistance

from the inmates of the house. (People vs. Atencio, No.
January 17, 1968, 22 SCRA 88, 102-103)
The circumstance of nighttime was aggravating where i t
is self- evident that it was sought to facilitate the commission of
the offense, when all the members of the household were asleep.
(People vs. Berbal, G.R. No. 71527 , Aug. 10, 1989, 176 SCRA 202
,
216)

Nighttime need not be specifically sought for when (1) it

facilitated the commission of the offense, or (2) the
offender took advantage of the same to commit the crime.
It is the constant jurisprudence in this jurisdiction that the
circumstance of nocturnity, although not specifically sought for by
the culprit, shall aggravate his criminal liability if it facilitated
the commission of the offense or the offender took advantage of
the same to commit the crime. (People vs. Corpus, C.A., 43 O.G.
2249 , citing U.S. vs. Perez, 32 Phil. 163; People vs. Pineda, 56 Phil.
688)
Nocturnity, even though not specially sought, if it facilitated
the commission of the crime and the accused took advantage thereof
to commit it, may be considered as an aggravating circumstance.
(People vs. Lungbos, supra, citing People vs. Galapia, 84 SCRA
530)
"For the purpose of impunity" means to prevent his (accused's)
being recognized, or to secure himself against detection and punish-
ment. (People vs. Matbagon, 60 Phil. 887, 891-892, 893)
Thus, it was held that the commission of the crime was attended
by the aggravating circumstance of nighttime, because of the silence
and darkness of the night which enabled the offender to take away
the girl with thing which undoubtedly the offender could
not have done in the daytime and in sight of people. (U.S. vs.
34 Phil. 169, 175)
The offender took advantage of any of the circumstances of
nighttime, uninhabited place, or by a band when he availed himself
thereof at the time of the commission of the crime for the purpose of
impunity or for the more successful consummation of his plans.
367
 AGGRAVATING CIRCUMSTANCES Art. 14
Nighttime, Uninhabited Place or Band Par. 6

(a) Nighttime.

By the word should be understood, according to

Viada, that period of darkness beginning at end dusk and ending
at dawn. Ni ghts are from sunset to sunrise. (Art. 13, Civil Code)

Nighttime by and of itself is not an aggravating circumstance.

The lower court appreciated nocturnity against appellants solely
on the basis of the fact on record that the crime was committed at
about 5 o'clock in the morning. This particular finding stands correc-
tion. By and of itself, nighttime is not an aggravating circumstance.
It becomes so only when it is especially sought by the offender, or
taken advantage of by him to facilitate the commission of the crime
or to insure his immunity from capture. In the instant case, other
than the time of the crime, nothing else whatsoever suggests that
the aggravating circumstance of nighttime was deliberately availed
of by appellants. In view of this deficiency, said circumstance should
be disallowed even as, technically, it may have been accepted by
them when they pleaded guilty on arraignment. (People vs. Boyles,
No. May 29, 1964, 11 SCRA 88, 94)

Where the darkness of the night was merely incidental to the

collision between two vehicles which caused the heated argument and
the eventual stabbing of the victim, nighttime is not aggravating. To
be aggravating, the prosecution must show that the accused purposely
sought to commit the crime at nighttime in order to facilitate the
achievement of his objectives, prevent discovery or evade capture.
(People vs. Velaga, Jr., G.R. No. 87202, July SCRA 518,
523-524)

The information must allege that nighttime was sought for

or taken advantage of by the accused or that it facilitated
the commission of the crime.
The jurisprudence on this subject is to the effect that nocturnity
must have been sought or taken advantage of to improve the chances
of success in the commission of the crime or to provide impunity for
the offenders. The bare statement in the information that the crime
was committed in the darkness of the night fails to satisfy the crite-
rion. (People vs. Fernandez, No. L-32623, June 29, 1972, 45 SCRA
535, 537)

368
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 6 Nighttime, Uninhabited Place or Band

Not aggravating when crime began at daytime.

When the crime was the result of a succession acts which took
place within the period of two hours, commencing at 5:00 p.m. and
ending at 7:00 p.m., without a moment's interruption in which it can
be said that the thought of nighttime, being the most favorable oc-
casion for committing the crime, occurred to the accused, there is no
aggravating circumstance of nighttime. (People vs. Luchico, 49 Phil.
689, 697)

The commission of the crime must begin and be accomplished in the

nighttime.
Thus, although the safe was thrown into the bay at night, but the
money, the taking of which constituted the offense, was withdrawn
from the treasury during the daytime, the crime of malversation was
not attended by the aggravating circumstance of nighttime. (U.S. vs.
Dowdell, 11 Phil. 4, 7)

The offense must be actually committed in the darkness of the night.

Thus, when the defendants did not intentionally seek the cover
of darkness for the purpose of committing murder and they were car-
rying a light of sufficient brilliance which made it easy for the people
nearby to recognize them (U.S. vs. Paraiso, 17 Phil. or
when the crime of robbery with homicide was committed at daybreak
when the defendants could be recognized (U.S. vs. Tampacan, 19 Phil.
185, 188), nighttime is not aggravating.

When the place of the crime is illuminated by nighttime is not

aggravating.
The fact that the scene of the incident was illuminated by the
light on the street as well as that inside the vehicle of which the vic-
tim was a passenger, negates the notion that accused had especially
sought or had taken advantage of nighttime in order to facilitate the
commission of the crime of theft or for purposes of impunity. (People
vs. Joson, C.A., 62 O.G. 4604)

Although the offense was committed at nighttime, the record

does not show that appellant had sought it purposely or taken advan-
tage thereof to facilitate the perpetration of the offense. In fact, the
place from which he fired at Laguna seemed to be sufficiently lighted

369
 AGGRAVATING CIRCUMSTANCES Art. 14
Nighttime, Uninhabited Place or Band Par. 6

for him to be clearly visible to, as well as recognized by, all of those
who happened to be nearby. (People vs. Bato, G.R. No. L-23405, Dec.
29, 1967, 21 SCRA 1445, 1448)

Nocturnity is not aggravating where there is no evidence that the

accused had purposely sought the cover of the darkness of the night
to commit the crime; nor is there evidence that nighttime facilitated
the commission of the crime, aside from the fact that the scene of the
crime was illuminated. (People vs. Moral, No. Oct.
132 SCRA 474, 487. Also, People vs. G.R. No. 56358, Oct. 26,
1990, 191 SCRA 38, 47; People vs. Aspili, G.R. Nos. 89418-19, Nov.
21 , 1990, 191 SCRA 530, 543)

The lighting of a or use of flashlights does not

negate the aggravating circumstance of nighttime.
It is self-evident that nighttime was sought by appellant to
facilitate the commission of the offense, when all the members of the
household were asleep. The fact that Restituto hit a matchstick
does not negate the presence of said aggravating circumstance. Thus,
People vs. Rogelio Soriano, G.R. No. L-32244, June
122 SCRA 740, this Court rejected the contention that nocturnity
could not be appreciated because flashlights were used. (People vs.
Berbal, G.R. No. 71527, Aug. 10, 1989)

(b) Uninhabited place.

What is uninhabited place?

An uninhabited place is one where there are no houses at all, a
place at a considerable distance from town, or where the houses are
scattered at a great distance from each other.
This aggravating circumstance should not be considered when
the place where the crime was committed could be seen and the voice
of the deceased could be heard from a nearby house. (People vs. Laoto,
52 Phil. 401 , 408)
Whether or not the crime committed is attended by this ag-
gravating circumstance should be determined not by the distance
of the nearest house from the scene of the crime, but whether or not
in the place of the commission of the offense there was a reasonable
possibility of the victim receiving some help.

370
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 6 Nighttime, Uninhabited Place or Band

That the place is uninhabited is determined, not by the distance

of the nearest house to the scene of the crime, but whether or not
in the place of its commission, there was reasonable possibility of
the victim receiving some help. Thus, the crime is committed in an
uninhabited place where the killing was done during nighttime, in a
sugarcane plantation about a hundred meters from the nearest house,
and the sugarcane in the field was tall enough to obstruct the view of
neighbors and passersby. (People vs. Fausto 75 O.G. 4979,
No. 25, June 18, 1979)
The purely accidental circumstance that on the day in question
another banca, namely, that of the witnesses for the prosecution,
was also at sea, is not an argument against the consideration of such
aggravating circumstance. It was difficult for the victim to receive any
help and it was easy for the assailants to escape punishment. (People
vs. Rubia, 52 Phil. 172, 175-176; People vs. No. L-26789, April
27 SCRA 1037, 1044)

U n i n h ab i t e d place i s a gg ra va ti n g wh ere the felony wa s

perpetrated in the open sea, where no help could be expected by
the victim from other persons and the offenders could easily escape
punishment. (People vs. Nulla, No. L-69346, Aug. SCRA
471 , 483)
The fact that persons occasionally passed in the uninhabited
place and that on the night of the murder another hunting party was
not a great distance away, does not matter. It is the nature of the
place which is decisive. (People vs. Bangug, 52 Phil. 87, 92)
A place about a kilometer from the nearest house or other
inhabited place is considered an uninhabited place. (People vs.
Aguinaldo, 55 Phil. 610, 616; People vs. Mendova, 100 Phil. 811 ,
818)
With the finding of the body of the victim in a solitary place off
the road and hidden among the trees and tall grasses on a hill, some
500 meters away from the toll gate where help to the victim was dif-
ficult and the escape of the accused seemed easy, it is correct to ap-
preciate the aggravating circumstance of uninhabited place. (People
vs. Atitiw, C.A., 66 O.G. 4040)
The killing was done in Barrio Makatipo, Novaliches,
City, an isol ated place that resemb l ed that of an aban don ed

371
 AGGRAVATING CIRCUMSTANCES
Art. 14
Nighttime, Uninhabited Place or Band
Par. 6

subdivision. The place was ideal not merely for burying the victim
but also for killing him for it was a place where the possibility of the
victim receiving some help from third persons was completely absent.
The accused sought the solitude of the place in order to better attain
their purpose without and to secure themselves against
detection and punishment. (People vs. Ong, No. L-34497, Jan. 30,
1975, 62 SCRA 174, 212-213)

When the victims are the occupants of the only house in

the place, the crime is committed in an uninhabited place.
In the case of People vs. Piring, 63 Phil. 546, where the accused
attacked and killed a couple in their house, the circumstance of
uninhabited place was not taken into consideration as aggravating
circumstance, because it was not proven that there were no houses
near the house of the deceased. The implication is that, if it was
shown that there were no houses there, it would be considered an
uninhabited place, even if there was a house there and the victims
were living in that house.

Solitude must be sought to better attain the criminal purpose.

It must appear that the accused sought the solitude of the place
where the crime was committed, in order to better attain his purpose.
(People vs. Aguinaldo, 55 Phil. 610, 616) The offenders must choose
the place as an aid either (1) to an easy and uninterrupted accom-
plishment of their criminal designs, or (2) to insure concealment of
the offense, that he might thereby be better secured against detection
and punishment. (U.S. vs. Vitug, 17 Phil. 1, 20; People vs.
No. July 31 , 1987, 152 SCRA 570, 578)
Hence, this aggravating circumstance is not present even if the
crime was committed in an uninhabited place, if the offended party
was casually encountered by the accused and the latter did not take
advantage of the place or there is no showing that it facilitated the
commission of the crime. (People vs. Luneta, 79 Phil. 815, 818)
The aggravating circumstance of uninhabited place cannot be
considered against the although the house nearest to the
dwelling of the victim was about a kilometer away, if the defendants
did not select the place either to better attain their object without
interference or to secure themselves against detection and punish-
ment. (People vs. Deguia, 88 Phil. 520, 526)

372
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 6 Nighttime, Uninhabited Place or Band

(c) By a band.

What is a band?
Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have
been committed by a band.

The armed men must act together in the commission of the crime.
The mere fact that there are more than three armed men at the
scene of the crime does not prove the existence of a band, if only one of
them committed the crime while the others were not aware of the com-
mission of the crime. The definition of "by a band" says that the armed
men "shall have acted together in the commission of the offense."
The band must be composed more than three armed persons.
Hence, even if there are 20 persons, but only 3 are armed, this ag-
gravating circumstance by a band cannot be considered. (U.S. vs.
Mendigoren, 1 Phil. 658, 659; See also U.S. vs. 11 Phil.
229, 231; People vs. Pakah, 81 Phil. 426, 429; People vs. Ga, G.R. No.
49831 , June 27, 1990, 186 SCRA 790, 797; People vs. Lungbos, No.
L-57293, June 21 , SCRA 383 , 388)

is included in the term "arms."

We held in the case of People vs. Bautista (28 SCRA 184) that
there is an intention to cause death if the accused throws a stone at
the victims, thus including stone under the term arms in the phrase
"more than 3 armed malefactors acted together." (People vs. Manlolo,
G.R. No. 40778, Jan. 26, 1989)

If one of the four armed persons is a principal by

inducement, they do not form a band.
What is more, the supposed participation of the petitioner herein,
Modesto as in the same information, was that of
principal by inducement, which undoubtedly connotes that he has no
direct participation in the perpetration thereof. (Gamara vs. Valero,
No. June 25, 1973, 51 SCRA 322, 326)

Note: All the armed men, at least four in number, must take
direct part in the execution of the act constituting the
crime. (Art. 17, paragraph 1, Revised Penal Code)
373
 AGGRAVATING CIRCUMSTANCES
Art. 14
Nighttime, Uninhabited Place or Band
Par. 6

When nighttime, uninhabited place, or by a band did not

facilitate the commission of the crime, was not especially
sought for, or was not taken advantage of.
When four armed who casually met another group of
three armed persons in an uninhabited place at nighttime, quarreled
with the latter and, in the heat of anger, the two groups fought against
each other, resulting in the death of one of the three which formed
the other group, nighttime, uninhabited place, and by a band are not
aggravating circumstances.

Reason: When the meeti ng between the offenders and the

group of the deceased was casual, the offenders could not have
sought for the circumstances of nighttime, uninhabited place and
their forming a band. When the offenders attacked the group of the
deceased in the heat of anger, they could not have taken advantage
of such circumstances. And since they did not afford the offenders
any advantage, such circumstances could not have facilitated the
commission of the crime.

"By a band" is aggravating in crimes against property or

against persons or in the crime of illegal detention or
treason.
The aggravating circumstance of by a band is considered in
crimes against property (People vs. Corpus, C.A., 43 O.G. 2249) and
in crimes against persons. (People vs. Laoto, 52 Phil. People
vs. Alcaraz, 103 Phil. 533 , 549; People vs. Aspili, G.R. Nos. 89418-19,
Nov. 1990, 191 SCRA 530, 543) It was taken into account also
in illegal detention (U.S. vs. Santiago, 2 Phil. 6, 8), and in treason.
(People vs. Manayao, 44 O.G. 4868)

Not applicable to crimes against chastity.

Thus, in the crime of rape committed by four armed persons, this cir-
cumstance was not considered. (People vs. Corpus, C.A., 43 O.G. 2249)

Abuse of superior strength and use of absorbed

in aggravating circumstance of "by a band."
The aggravating circumstance of taking advantage of their
superior strength and with the use of firearms is absorbed by the
generic aggravating circumstance of the commission of the offense
by a band. (People vs. G.R. No. 42964, March 14, 1988)
374
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 7 On Occasion of Calamity or Misfortune

"By a band" is inherent in brigandage.

In the crime of brigandage, which is committed by more than
three armed persons forming a band of robbers (Art. 306), the cir-
cumstance that the crime was committed by a band should not be
considered as aggravating, because it is inherent in or is necessarily
included in the crime.

"By a band" is aggravating in robbery with homicide.

In the cases of People vs. Sawajan, 53 Phil. and People
vs. 85 Phil. 498, 503, it was held that in the imposition of the
penalty for the crime of robbery with homicide, the aggravating
circumstance that the crime was committed by a band should be
taken into consideration.

Par. 7. — That the crime be committed on the occasion of a

conflagration, shipwreck, earthquake, epidemic or
other calamity or misfortune.

Basis of this aggravating circumstance.

The basis of this aggravating circumstance has reference to the
time of the commission of the crime.

Reason for the aggravation.

The reason for the existence of this circumstance is found in the
debased form of criminality met in one who, in the midst of a great
calamity, instead of lending aid to the afflicted, adds to their suffering
by taking advantage of their misfortune to despoil them. (U.S. vs.
Rodriguez, 19 Phil. 150, 157)

Example:
An example of this circumstance is the case of a fireman who
commits robbery in a burned house, or that of a thief who immediately
after a destructive typhoon steal s personal property from the
demolished houses.

375
 AGGRAVATING CIRCUMSTANCES Art. 14
Aid of Armed Men, etc. Par. 8

The offender must take advantage of the calamity or misfor-

tune.
Thus, if the accused was provoked by the offended party to commit
the crime during the calamity or misfortune, this aggravating circum-
stance may not be taken into consideration for the purpose of increasing
the penalty because the accused did not take advantage of it.

"Chaotic condition" as an aggravating circumstance.

The phrase other calamity or misfortune" refers to other
conditions of distress similar to those precedingly enumerated, that
is, "conflagration, shipwreck, earthquake or epidemic." Hence, cha-
otic conditions after liberation is not included under this paragraph.
(People vs. Corpus, 43 O.G. 2249)

But in the case of People vs. Penjan, C.A., 44 O.G. 3349, the
chaotic condition resulting from the liberation of San Pablo was con-
sidered a calamity.
The development of engine trouble at sea is a misfortune, but
it does not come within the context of the phrase "other calamity or
misfortune," as used in Art. 14, par. 7 of the Revised Penal Code,
which refers to other conditions of distress similar to those precedingly
enumerated therein, namely, "conflagration, shipwreck, earthquake
or epidemic," such as the chaotic conditions resulting from war or
the liberation of the Philippines during the last World War. Clearly,
no condition of great calamity or misfortune existed when the motor
banca developed engine trouble. (People vs. No. L-26789, April
25, 1969, 27 SCRA 1037, 1045)

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

Basis of this aggravating circumstance.

It is based on the means and ways of committing the crime.

Requisites of this aggravating circumstance.

That armed men or persons took part in the commission
of the crime, directly or indirectly.
376
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 8 Aid of Armed Men, etc.

2. That the accused availed of their aid or relied upon

them when the crime was committed.

Rule for the application of this circumstance.

The casual presence of armed men near the place where the crime
was committed does not constitute an aggravating circumstance when
it appears that the accused did not avail himself of their aid or rely
upon them to commit the crime.

The armed men must take part directly or indirectly.

The accused stabbed the deceased to death.
"The testimony of the accused, corroborated by that of the
witness for the prosecution, is that the crime was committed by
him (accused) alone, without assistance from any one. It is true
that in the house near the place where the crime was committed
there were ten men armed with daggers, and five without arms, but
these men took no part, directly or indirectly, in the commission of
the crime, and it does not appear that they heard the conversation
which caused the sudden determination on the part of the accused
to kill the deceased. The accused, therefore, did not avail himself of
their aid or rely upon them to commit the (U.S. vs. Abaigar,
2 Phil. 417, 418)

Examples of "with the aid of armed men."

A, in order to get rid of her husband, secured the services of
other Moros by promising them rewards and had them kill her
husband. In accordance with the plan, they armed themsel ves with
clubs, went to the house of the victim and clubbed him to death
while A held a lighted lamp. A also supplied them with rope with
which to tie her husband. In this case, A committed parricide "with
the aid of armed men." (People vs. G.R. No. L-45902 , May
31 , 1938)
and L were prosecuted for robbery with rape. It appeared from
their written confessions that they had companions who were armed
when they committed the crime. It was held that they were guilty of
robbery with rape with the aggravating circumstance of aid of armed
men. (People vs. Ortiz, 103 Phil. 944, 949)

377
 AGGRAVATING CIRCUMSTANCES Art. 14
Aid of Armed Men, etc. Par. 8

Exceptions:
(1) This aggravating circumstance shall not be considered
when both the attacking party and the party attacked were
equally armed. (Albert)

(2) This aggravating circumstance is not present when the

accused as well as those who cooperated with him in the
commission of the crime acted under the same plan and
for the same purpose. (People vs. 63 Phil. 546, 553;
People vs. Candado, No. L-34089, Aug. 1, 1978, 84 SCRA
508, 524)

"With the aid of armed men" (Par. 8), distinguished from

"by a band." (Par.
By a band requires that more than three armed malefactors shall
have acted together in the commission of an offense. Aid of armed men
is present even if one of the offenders merely relied on their aid, for
actual aid is not necessary.

"Aid of armed men" is absorbed by "employment of a

band."
Thus, it is improper to separately take into account against the
accused the aggravating circumstances of (1) the aid of armed men,
and (2) employment of a band in appraising the gravity of the offense,
in view of the definition of band which includes any group of armed
men, provided they are at least four in number. (People vs. Manayao,
78 Phil. 721, 728)

Note: If there are four armed men, aid of armed men is ab-
sorbed in employment of a band. If there are three armed
men or aid of armed men may be the aggravating
circumstance.

"Aid of armed men" includes "armed women."

Aid of armed women is aggravating in kidnapping and serious
illegal detention. (People vs. 94 Phil. 839, 846)
But see People vs. 98 Phil. where it was opined
that some use of arms or show of armed strength is necessary to guard

378
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 9 Recidivist

a kidnap victim to prevent or discourage escape and so in a sense,

it may be justly regarded as included in or absorbed by the offense
(p. 340)

Par. 9. — That the accused is a recidivist.

Basis of this aggravating circumstance.

This is based on the greater perversity of the offender, as shown
by his inclination to crimes.

Who is a recidivist?
A recidivist is one who, at the time of his trial for one crime,
shall have been previously convicted by final judgment of another
crime embraced in the same title of the Revised Penal Code. (People
vs. G.R. No. 65833 , May 196 SCRA 611 , 619)

Requisites:
That the offender is on trial for an offense;
2. That he was previously convicted by final judgment of
another crime;
3. That both the first and the second offenses are embraced
in the same title of the Code;

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

"At the time of his trial for one crime."

What is controlling is the time of trial, not the time of the
commission of the crime. It is not required that at the time of the
commission of the crime, the accused should have been previously
convicted by final judgment of another crime.

Meaning of "at the time of his trial for one crime."

The phrase "at the time of his trial" should not be restrictively
construed as to mean the date of arraignment. It is employed in its
general sense, including the rendering of the judgment. It is meant
to include everything that is done in the course of the trial, from

379
 AGGRAVATING CIRCUMSTANCES
Art. 14
Recidivist
Par. 9

arraignment until after sentence is announced by the judge in open

court. (People vs. supra)
Held: The accused was not a recidivist. (People vs. Baldera, 86
Phil. 189, 193)

No recidivism the subsequent conviction is for an offense committed

before the offense involved in the prior conviction.
The accused was convicted of robbery with homicide committed
on December He was previously convicted of theft committed
on December 30, 1947.

Held: The accused was not a recidivist. (People vs. Baldera, 86

Phil. 189)

"Previously convicted by final judgment."

The accused was prosecuted and tried for theft, estafa and
robbery. Judgments for three offenses were read on the same day.
Is he a recidivist? No, because the judgment in any of the first two
offenses was not yet final when he was tried for the third offense.
Sec. 7 of Rule 120 of the Revised Rules of Criminal Procedure
provides that except where the death penalty is imposed, a judgment
in a criminal case becomes final (1) after the lapse of the period for
perfecting an appeal, or (2) when the sentence has been partially or
totally satisfied or served, or (3) the accused has waived in writing
his right to appeal, or (4) the accused has applied for probation. Sec. 6
of Rule 122 of the Revised Rules of Criminal Procedure provides that
appeal must be taken within fifteen days from promulgation
or notice of the judgment or order appealed from."

The present crime and the previous crime must be "embraced

in the same title of this Code."
Thus, if the accused had been twice convicted of violation of section
824 of the Revised Ordinances of the City of Manila and subsequently
he was prosecuted for violation of Article 195 of the Revised Penal
Code concerning gambling, is not a recidivist. (People vs. Lauleco,
C.A., 36 O.G. 956) When one offense is punishable by an ordinance or
special law and the other by the Revised Penal Code, the two offenses
are not embraced in the same title of the Code.

380
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 9 Recidivist

But recidivism was considered aggravating in a usury case where

the accused was previously convicted of the same offense. Under its
Art. 10, the Revised Penal Code should be deemed as supplementing
special laws of a penal character. (People vs. Hodges, 68 Phil. 178,
188)

Examples of crimes embraced in the same title of the

Revised Penal Code.
Robbery and theft are embraced in Title Ten, referring to crimes
against property. Homicide and physical injuries are embraced in
Title Eight, referring to crimes against persons. The felonies
and penalized in Book II of the Revised Penal Code are grouped in
different titles. Title Ten and Title Eight are among them.

There is recidivism even if the lapse of time between two

felonies is more than years.
Recidivism must be taken into account as an aggravating
circumstance no matter how many years have intervened between
the first and second felonies. (People vs. Colocar, 60 Phil. 878, 884;
See also People vs. No. L-28547, Feb. 22, 1974, 55 SCRA
563, 575, where the accused admitted their previous convictions.)

Pardon does not obliterate the fact that the accused was a
recidivist; but amnesty extinguishes the penalty and its ef-
fects.
This is the ruling in the case of U.S. vs. Sotelo, 28 Phil. 147,
160. According to Art. 89, amnesty extinguishes the penalty and all
its effects. There is no such provision with respect to pardon.
Therefore, pardon does not prevent a former conviction from
being considered as an aggravating circumstance.
The accused-appellant admitted during the trial that he was
once convicted of the crime of homicide but he was granted an abso-
lute pardon therefor. The lower court properly considered recidivism
since a pardon for a preceding offense does not obliterate the fact
that the accused is recidivist upon his conviction of a second of-
fense embraced in the same title of the Revised Penal Code. (People
vs. Lacao, Sr., G.R. No. 95320 , Sept. 4, 1991, 201 SCRA 317, 330)

381
 AGGRAVATING CIRCUMSTANCES Art. 14
or Habituality Par. 10

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

Basis of this aggravating circumstance.

The basis is the same as that of recidivism, i.e., the greater
perversity of the offender as shown by his inclination to crimes.
Requisites:
That the accused is on trial for an offense;
2. That he previously served sentence for another offense to
which the law attaches an equal greater penalty, or for
two or more crimes to which it attaches lighter penalty
than that for the new offense; and
3. That he is convicted of the new offense.
The accused was convicted of homicide, less serious physical
injuries, and slight physical injuries, all committed on January 14.
1979. He was found by the trial court to have committed offenses prior
to and after that date, as follows: (1) prior to January, 1979, he was
arrested and accused of the crime of theft; (2) on May 15, 1973, he
was likewise charged for physical injuries but said case was amicably
settled; (3) on January he was likewise charged for the crime
of theft and was convicted of said offense; (4) he was likewise charged
and convicted in another criminal case; (5) he was also charged for
theft but said case was settled amicably; and (6) he was charged and
convicted for theft on October In reiteracion or habituality,
it is essential that the offender be previously punished, that is, he
has served sentence, for an offense in which the law attaches, or
provides for an equal or greater penalty than that attached by law
to the second offense, or for two or more offenses, in which the law
attaches a lighter penalty. The records did not disclose that the
accused has been so previously punished. Reiteracion or habituality
is not attendant. (People vs. Villapando, G.R. No. Oct.
178 SCRA 341, 355)

"Has been previously punished."

This phrase in paragraph 10 means that the accused previ-
ously served sentence for another offense or sentences for other

382
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 10 Reiteracion or Habituality

offenses before his trial for the new offense. (See People vs. Abella,
No. L-32205, Aug. 31 , 1979, 93 SCRA 25, 48, where the rule was
applied.)
The second requisite is present: (1) when the penalty pro-
vided by law for the previous offense is equal to that for the new
offense; or (2) when the penalty provided by law for the previous
offense is greater; or (3) when the accused served at least two
even if the penalties provided by law for the crimes
are lighter.

"Punished for an offense to which the law attaches an equal

penalty."
A served sentence for forcible abduction (Art. 342) punishable
by reclusion temporal, that is from 12 years and 1 day to 20 years.
Later, after A was released from prison, he committed homicide
249) punishable also by reclusion temporal. In fixing the penalty for
homicide, the court will have to consider the aggravating circumstance
of habituality against A.

"Punished for an offense to which the law attaches

greater penalty."
The accused once served sentence for homicide punishable by
a penalty ranging from 12 years and 1 day to 20 years. Now, he
is convicted of falsification punish abl e by a penalty ranging
6 years and 1 day to 12 years. Is there reiteracion or h ab i tu al i ty
in this case? Yes, because the penalty for homicide for which he
served sentence greater than that for the new offense (falsifica-
tion).
Suppose it was falsification first and homicide now? Then, there
is no habituality, because the penalty for the first offense is less than
that for the second offense. The penalty for the first offense must at
least be equal to that for the second offense.
Suppose it was homicide before and homicide now? Then, there
is recidivism, because the first and the second offenses are embraced
in the same title of the Code. Although the law requires only final
judgment in recidivism, even if the convict served sentence for one
offense, there is still recidivism, provided the first and the second
offenses are embraced in the same title of the Code.

383
 AGGRAVATING CIRCUMSTANCES Art. 14
Reiteracion or Habituality Par. 10

"Punished x x x for two or more crimes to which it

attaches a lighter penalty."
A served 30 days imprisonment for theft; later, he served 2
months for estafa; now he is tried for homicide which is punishable
with reclusion temporal, that is, 12 years and 1 day to 20 years.
Note that for the previous two offenses, the law provides lesser
penalties.

It is the penalty attached to the offense, not the penalty

actu- ally imposed.
Paragraph No. 10 of Art. 14 speaks of penalty attached to the
offense, which may have several periods. Hence, even if the accused
served the penalty of prision mayor in its minimum period and is
now convicted of an offense for which the penalty of prision mayor
maximum is imposed, there is still habituality, provided that the
penalty attached to the two offenses is prision mayor in its full
extent.

Reiteracion or habituality, not always aggravating.

If, as a result of taking this circumstance into account, the
penalty for the crime of murder would be death and the offenses
for which the offender has been previously convicted are against
property and not directly against persons, the court should exercise
its discretion in favor of the accused by not taking this aggravating
circumstance into account. (1 Viada, 310)

Recidivism and reiteracion, distinguished.

The circumstance of reiteracion may be distinguished from that
of recidivism as follows:
(a) In reiteracion, it is necessary that the offender shall have
served out his sentence for the first offense; whereas, in
recidivism, it is enough that a final judgment has been
rendered in the first offense.
(b) In reiteracion, the previous and subsequent offenses must
not be embraced in the same title of the Code; whereas,
recidivism, requires that the offenses be included in the
same title of the Code.

384
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 10 Reiteracion or Habituality

(c) Reiteracion is not always an aggravating circumstance;

whereas, recidivism is always to be taken into consideration
in fixing the penalty to be imposed upon the accused.

The four forms of repetition are:

1. Recidivism. (Paragraph 9, Art. 14)
2. Reiteracion or habituality. (Paragraph 10, Art. 14)
3. Multi-recidivism or habitual delinquency. (Art. 62, para-
graph
4. Quasi-recidivism. (Art. 160)
The first two are generic aggravating while the
third is an extraordinary aggravating circumstance. The fourth is a
special aggravating circumstance.

Habitual delinquency.
There is habitual delinquency when a person, within a period of
ten years from the date of his release or last conviction of the crimes
of serious or less serious physical injuries, robbery, theft, estafa or
falsification, is found guilty of any of said crimes a third time or of-
tener. (Art. 62, last paragraph) In habitual delinquency, the offender
is either a recidivist or one who has been previously punished for two
or more offenses (habituality). He shall suffer an additional penalty
for being a habitual delinquent.

Quasi-recidivism.
Any person who shall commit a felony after having been con-
victed by final judgment, before beginning to serve such sentence, or
while serving the same, shall be punished by the maximum period
of the penalty prescribed by law for the new felony. (Art. 160)
Defendant, while serving sentence in Bilibid for one crime, struck
and stabbed the foreman of the brigade of prisoners. Under Article
160 of the Code, he shall be punished with the maximum period of the
penalty prescribed by the law for the new felony. (People vs. Durante,
53 Phil. 363 , 372)

385
 AGGRAVATING CIRCUMSTANCES Art. 14
Price, Reward or Promise Par. 11

Par. 11. — That the crime be committed in consideration of a

price, reward or promise.

Basis:
This is based on the greater perversity of the offender, as shown
by the motivating power itself.

This aggravating circumstance presupposes the concurrence

of two or more offenders.
When this aggravating circumstance is present, there must
be two or more principals, the one who gives or offers the price or
promise and the one who accepts it, both of whom are
the former, because he directly induces the latter to commit the crime,
and the latter because he commits it. (1 Viada, 262)

this paragraph applicable to the one who gave the price

or
When this aggravating circumstance is present, it affects not only
the person who received the price or the reward, but also the person
who gave it. (U.S. vs. 36 Phil. 923 , 924; U.S. vs. Maharaja
38 Phil. 1, 7)

The established rule in Spanish jurisprudence is to the effect

that the aggravating circumstance of price, reward or promise thereof
affects equally the offeror and the acceptor. (People vs. Alincastre,
No. Aug. 30, 1971, 40 SCRA 391 , 408; People vs. Canete,
No. L-37945, May 28, SCRA 451 , 459)

P procured an ignorant man to kill the brother and of

P for a reward of P60. The ignorant man, following the instruction of
P, killed them. Held: Murder by inducement of a price is committed.
(U.S. vs. Parro, supra)
In the case of U.S. vs. Parro, price was a qualifying aggravating
circumstance.
The aggravating circumstance that the crime was committed
for hire or reward can be applied to the instigator of the crime. (U.S.
vs. 23 Phil. 81)
But in the case of People vs. Talledo and Timbreza, 85 Phil.
539, it was held that the aggravating circumstance of price or reward
386
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 11 Price, Reward or Promise

cannot be considered against the other accused for the reason that it
was not she who committed the crime in consideration of said price
or reward.
If the price, reward or promise is alleged in the information as a
qualifying aggravating circumstance, it shall be considered against all
the accused, it being an element of the crime of murder. In the case of
Talledo and Timbreza, price was considered as a generic aggravating
circumstance only, because it was not alleged to qualify the crime to
murder.

Price, reward or promise must be for the purpose of inducing

another to perform the deed.
The evidence must show that one of the accused used money or
other valuable consideration for the purpose of inducing another to
perform the deed. (U.S. vs. 23 Phil. 81)
If without previous promise it was given voluntarily after the
crime had been committed as an expression of his appreciation for
the sympathy and aid shown by other accused, it should not be taken
into consideration for the purpose of increasing the penalty. (U.S. vs.
Flores, 28 Phil. 29, 34)
The evidence shows that there was an offer of a reward by
appellant Pascual Bartolome, and a promise by appellant Santos,
but the evidence i s not conclusive that ap p el l an t Be n Perl a s
participated in the commission of the robbery by reason of such
reward or promise, it appearing that even before the other accused
met with Pascual Bartolome and the other municipal officials who
made the the other accused had already decided to commit
the robbery. No doubt, the reward and the promise aforementioned
mus t have given the other accused , in cl ud i n g ap p el l an t Be n
Perlas, further encouragement in the commission of the robbery;
however, in our opinion, for this aggravating circumstance to be
considered against the person induced, the said inducement must
be the primary consideration for the commission of the crime by
him. (People vs. Paredes, Nos. Aug. 24 SCRA

387
 AGGRAVATING CIRCUMSTANCES Art. 14
By Means of Fire, etc. Par. 12

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

inundation, fire, poison, explosion, stranding of a
vessel or intentional damage thereto, derailment
of a locomotive, or by the use of any other artifice
involving great waste and ruin.

Basis of this aggravating circumstance.

The basis has reference to means and ways employed.

Unless used by the offender as a means to accomplish a

criminal purpose, any of the circumstances in paragraph
cannot be considered to increase the penalty or to change
the nature of the offense.
As generic aggravating circumstance.
A killed his wife by means of fire, as when he set their house on fire
to kill her; or by means of explosion, as when he threw a hand grenade
at her to kill her; or by means of poison which he mixed with the food
of his wife. In any of these cases, there is only a generic aggravating
circumstance, because they cannot qualify the crime. The crime com-
mitted is parricide which is already qualified by relationship.
When another aggravating circumstance already qualifies the
any of these aggravating circumstances shall be considered as
generic aggravating circumstance only.

When there is no actual design to kill a person in burning a house, it

is plain arson even if a person is killed.
When the crime intended to be committed is arson and somebody
dies as a result thereof, the crime is simply arson and the act resulting
in the death of that person is not even an independent crime of
homicide, it being absorbed. (People vs. Paterno, et 85 Phil.
722)
If death resulted as a consequence of arson committed on any
of the properties and under any of the circumstances mentioned in
Articles 320 to 326, the court shall impose the death penalty. (Art.
320, Revised Penal Code, as amended)
On the other hand, if the offender had the intent to kill the
victim, burned the house where the latter was, and the victim died

388
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 12 By Means of Inundation, Fire, etc.

as a consequence, the crime is murder, qualified by the circumstance

that the crime was committed "by means of fire." (See Art. 248)

When used as a means to kill another person, the crime is

murder.
The killing of the victim by means of such circumstances as in-
undation, fire, poison, or explosion qualifies it to murder. (Art. 248,
Par. 3)
1. "By means of fire"
In a case, the accused had set fire to an automobile under a
building, with the result that the edifice was consumed by fire. One
of the inmates of the house perished in the conflagration.
Held: In order to constitute murder, there should be an actual
design to kill and that the use of fire should be purposely adopted as
a means to that end. (U.S. vs. Burns, 41 Phil. 418, 432)
Hence, if the purpose of the explosion, inundation, fire or poison
is to kill a predetermined person, the crime committed is murder.
Once any of these circumstances is alleged in the information to
qualify the offense, it should not be considered as generic aggravat-
ing circumstance for the purpose of increasing the penalty, because
it is an integral element of the offense.
But if a house was set on fire after the killing of the victim,
there would be two separate crimes of arson and murder or homicide.
(People vs. Bersabal, 48 Phil. People vs. Piring, 63 Phil. 546,
552) There would not be an aggravating circumstance of "by means
of fire."
2. "By means of explosion"
What crime is committed if a hand grenade is thrown into the
house where a family of seven persons live, and as a result of the
explosion, the wall of the house is damaged, endangering the lives of
the people there?
The offense is a crime involving destruction. (Art. 324) If one of
the people there died, but there is no intent to kill on the part of the
offender, it will be a crime involving destruction also, but the penalty
will be death. But if there is intent to kill and explosion is by the
offender to accomplish his criminal purpose, it is murder the victim
dies as a direct consequence thereof.

389
 AGGRAVATING CIRCUMSTANCES Art. 14
By Means of Inundation, Fire, etc.
Par. 12

3. means of derailment of locomotive"

Under Art. 330, which defines and penalizes the crime of damage
to means of communication, derailment of cars, collision or accident
must result from damage to a railway, telegraph or telephone lines.
But this is without prejudice to the criminal liability for other
consequences of criminal act.
What crime is committed if as a result of the derailment
of cars only property is damaged? It is damage to means
of communication under Art. 330.
(2) What is the crime if the death of a person also results
without intent to kill on the part of the offender? It is a
complex crime of damage to means of communication with
homicide. (Arts. 330 and 249 in relation to Arts. 4 and
48)
(3) What is the crime committed, if the death of a person
resulted and there was intent to kill on the part of the
offender? It is murder, because the derailment of cars or
locomotive was the means used to kill the victim. (Art.
248)
(4) Must this aggravating circumstance be considered to raise
the penalty, if it already qualifies the crime to murder? No,
because of Art. 62, par. which provides that when the
aggravating circumstance is included by the law in defin-
ing a crime, it shall not be taken into consideration for the
purpose of increasing the penalty.
It will be noted that each of the circumstances of "fire," "explo-
sion," and "derailment of a locomotive" may be a part of the defini-
tion of particular crime, such as, arson (Art. 320), crime involving
destruction (Art. 324), and damages and obstruction to means of
communication. (Art. 330)
In these cases, they do not serve to increase the penalty, because
they are already included by the law in defining the crimes.

Par. 12 distinguished from Par. 7.

Under par. 12, the crime is committed by means of any of such
acts involving great waste or ruin. Under par. 7, the crime is com-
mitted on the occasion of a calamity or misfortune.

390
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 13 Evident Premeditation

Par. 13. — That the act be committed with evident premedita-

tion.

Basis of this aggravating circumstance.

The basis has reference to the ways of committing the crime,
because evident premeditation implies a deliberate planning of the
act before executing it.

Illustration of deliberate planning of the act before

executing it.
Pastor Labutin had planned to liquidate Simplicio Tapulado.
The plan could be deduced from the outward circumstances shown
from the time he walked with Vicente and Angel Libre (the
triggermen) to the house of Lucio where he caused his co-
accused to be drunk, the breaking out of his plan to kill the victim
to his co-accused at the time when he knew that they were already
drunk, his remark that he had grudge against the victim in reply to
the comment of Vicente Ompad that he had no ill-feeling against him
(victim), his immediate action to supply the ammunition when Vicente
Ompad remarked about the lack of it, and his being always near the
triggermen at the critical moments when the crime was actually to
take place. These circumstances were means which he considered
adequate and effective to carry out the intended commission. He
had sufficient time to reflect and allow his conscience to overcome
his resolution to kill. That Pastor Labutin acted with known
premeditation, is evident indeed. (People vs. Ompad, No.
Jan. 31 , 1969, 26 SCRA 750, 759)

Evident premeditation may be considered as to principal by

induction.
Thus, when Gil as far back as March 1907, attempted to
induce Batolinao to kill the priest; in March 1909, two months prior
to the murder, he offered Patpat to kill the priest; some days
prior to the murder, he said that an anarchistic society had been
formed with the object of killing the friars; and on the afternoon of
May 15, he presided at the meeting held in his own house, where it
was agreed that the priest should be killed and he there deliberately
selected his nephew to commit the crime, and directly induced
him to do it; the crime, in so far as Gil Gamao was concerned, was

391
 AGGRAVATING CIRCUMSTANCES Art. 14
Evident Premeditation Par. 13

committed with known premeditation. (U.S. vs. Gamao, 23 Phil. 81 ,

96)

Essence of premeditation.
The essence of premed itation is that the execution of the
criminal act must be preceded by cool thought and reflection upon
the resolution to carry out the criminal intent during the space of
time sufficient to arrive at a calm judgment. (People vs. Durante,
53 Phil. 363 , 369)

Evident premeditation has been fully established. The com-

mission of the crime was premeditated and reflected upon and was
preceded by cool thought and a reflection with the resolution to carry
out the criminal intent during a span of time sufficient to arrive at
the hour of judgment. (People vs. No. L-42964, March 14,
SCRA 602 , 612)

Thus, evident premeditation may not be appreciated absent

any proof as to how and when the plan to kill was hatched or what
time elapsed before it was carried out. (People vs. G.R. No.
71153, Aug. 16, 1991, 200 SCRA 624, 635)
Neither is it aggravating where the fracas was the result of
rising tempers, not a deliberate plan (People vs. Padrones, G.R. No.
85823, Sept. SCRA 496, nor when the attack was
made in the heat of anger. (People vs. No. L-39046, June 30,
1975, 64 SCRA 729, 734)
It is not aggravating in the absence of evidence showing that the
accused had, prior to the killing, resolved to commit the same, nor is
there proof that the shooting of the victim was the result of medita-
tion, calculation or resolution, and the deceased was unknown to the
accused before the incident. (People vs. Samonte, Jr., No.
June 11, 1975, 64 SCRA 319, 326)

The premeditation must be "evident."

There must be evidence showing that the accused meditated
and reflected on his intention between the time when the crime was
conceived by him and the time it was actually perpetrated. (People
vs. Carillo, 77 Phil. 579) The premeditation must be evident and not
merely suspected. (People vs. Yturriaga, 86 Phil. 534, 538; People vs.

392
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 13 Evident Premeditation

No. L-32733, Sept. 11, 1974, 59 SCRA 31, 38-39; People

vs. Lacao, No. L-32078, Sept. 30, 1974, 60 SCRA 89, 95)

Requisites of evident premeditation:

The prosecution must prove —
1. The time when the offender determined to commit the
crime;
2. An act manifestly indicating that the culprit has clung to
his determination; and
3. A sufficient lapse of time between the determination and
execution, to allow him to reflect upon the consequences
of his act and to allow his conscience to overcome the
resolution of his will. (People vs. Lagarto, G.R. No.
65883 , May 6 , 1991 , 196 SCRA 611 , 619- 620 ; People vs.
Clamor, G.R. No. 82708 , 198 SCRA 642 , 655 ; People vs.
Pacris, G.R. No. 69986 , March 5, 1991 , 194 SCRA 654 ,
664; People vs. Iligan, G.R. No. 75369 , Nov. 26 , 1990 ,
191 SCRA 643 , 653 ; People vs. Requipo, G.R. No. 90766 ,
Aug. 13, 1990 , 188 SCRA 571 , 577 and legions of other
cases)

Example:

U.S. vs. Manalinde

(14 Phil. 77)

Facts: The accused who pleaded guilty confessed that his wife died
about one hundred days before; that he was directed by Datto Mupuck
to go huramentado and to kill the two persons he would meet in the
town; that if he was successful in the matter, Mupuck would give him
a pretty woman on his return; that in order to carry out his intention
to kill two persons in the town of Cotabato, he provided himself with a
kris, which he concealed in banana leaves; that he travelled for a day
and a night from his home; that upon reaching the town, he attacked
from behind a Spaniard, and immediately after, he attacked a
man who was close by; and that he had no quarrel with the assaulted

Held: Those facts established the aggravating circumstance of

evident premeditation.

393
 AGGRAVATING CIRCUMSTANCES Art. 14
Evident Premeditation
Par. 13

Manalinde illustrates the three requisites of evident premedi-

tation.
First requisite —

On a certain date, Manalinde accepted the proposition that

he would turn huramentado and kill the first two persons he would
meet in the market place. On said date, the offender is said to have
determined to commit the crime.
Second requisite —

He undertook the journey to comply therewith and provided

himself with a weapon. The journey and the carrying of the weapon
are acts manifestly indicating that the offender clung to his determi-
nation to commit the crime.
Third requisite —
After the journey for a day and a night, he killed the victims.
One day and one night constitute a sufficient lapse of time for the
offender to realize the consequences of his contemplated act.
Other illustrative cases.
The circumstance of evident premeditation is present because
on that very Friday afternoon immediately after the incident at the
canteen, appellant Renegado, giving vent to his anger, told his co-em-
ployee, Ramirez, and the security guard, Velasco, that he was going
to kill Lira. That state of mind of appellant was evident once more
when he went to the school dance that same Friday evening and he
asked another security guard if Lira was at the dance. On the following
day, Saturday, appellant met Mrs. Benita Tan to whom he confided
that had he seen Lira the night before he would surely have killed
him. And on Monday morning, knowing Lira's snack time, appellant
armed himself with a knife, proceeded to the canteen at around 9:30
a.m. and seeing the teacher Lira with his back towards him, stabbed
Lira from behind. (People vs. Renegado, No. May 31, 1974,
57 SCRA 275, 290)
What else can better portray this circumstance that the frequent
meetings of the four accused at the Barrio Fiesta Restaurant in order
to discuss, lay out the plan, and secure the different paraphernalia
consisting of the rope, icepick, flannel cloth, flashlight and shovel?
Added to this is the careful selection of an "ideal" site for the

394
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 13 Evident Premeditation

happening. (People vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA

The admission of the accused that he had with him a .22

caliber revolver on the afternoon of December 12, 1969; that when
he saw the victim driving his car on P. Paredes Street he followed
him up to the corner of P. Paredes and Lepanto Streets where he
shot the victim eight times suddenly and without any warning,
speaks eloquently of his plan generated by an a l l - consuming
hatred, to kill the person whom he considered responsible for all his
misfortunes. The lower court did not, therefore, err in considering
the aggravating circumstance of evident premeditation against
the appellant. (People vs. Benito, No. L-32042, Feb. 13, 1975 , 62
351 , 359)
There is evident premeditation where on the night when de-
ceased slapped the accused and asked him to kneel down, the latter
made it clear that he would avenge his humiliation; when two days
later accused looked inside a bus for the deceased and not finding
him there said that if deceased were there, he had something for him.
Accused found deceased seated in a jeep and stabbed him. (People vs.
Mojica, No. L-30742, April 30, 1976, 70 SCRA 502, 508-509)

The date and time when the offender determined to

commit the crime essential.
The date and, if possible, the time when the offender determined
to commit the crime is essential, because the lapse of time for the
purpose of the third requisite is computed from that date and time.

Second requisite necessary.

The premeditation must be based upon external acts and not
presumed from mere lapse of time. (U.S. vs. 1 Phil. 173,
176)
The criminal intent evident from outward acts must be notori-
ous and manifest, and the purpose and determination must be plain
and have been adopted after mature consideration on the part of the
persons who conceived and resolved upon the perpetration of the
crime, as a result of deliberation, meditation and reflection sometime
before its commission. (People vs. Zapatero, No. Aug. 15,
1974, 58 SCRA 450, 459; U.S. vs. 24 Phil. 69, 73)

395
 AGGRAVATING CIRCUMSTANCES Art. 14
Evident Premeditation Par. 13

Thus, although in offender's confession there is a statement

that, on the morning of June 29, when he heard that was at
large, he proposed to kill him, there is an entire absence of evidence
showing that he meditated and reflected on his intention between the
time it was conceived and the time the crime was actually perpetrated.
(People vs. 77 Phil. 572)

Second requisite exists.

After the offenders had determined (conceived) to commit the
crime, they manifestly indicated that they clung to their determina-
tion —
(a) When the crime was carefully planned by the offenders.
(b) When the offenders previously prepared the means which
they considered adequate to carry it out. (U.S. vs. Cornejo,
28 Phil. 457)
(c) When a grave was prepared at an isolated place in the
field for the reception of the body of the person whom the
criminals intended to kill. (U.S. vs. 13 Phil.
660)
(d) When the defendants made repeated statements that the
hour of reckoning of the victim would arrive and armed
themselves with deadly weapons. (People vs. Lopez, 69
Phil. 298)
(e) When the defendant commenced to sharpen his bolo on
the afternoon preceding the night of the crime. (U.S. vs.
Liwakas, 17 Phil. 234)
(f) When the defendant, according to his own confession, three
times attempted to take the life of the deceased in order
to be able to marry his widow, with whom he was in love.
(People vs. Ducusin, 53 Phil. 280)
(g) Where the accused repeatedly plotted the commission of
the murder over a period of several weeks and, on at least
two occasions, made preliminary efforts to carry it out.
(People vs. Jaravata, G.R. No. L-22029, August 15, 1967,
20 SCRA 1014)

396
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 13 Evident Premeditation

Mere threats without the second element does not show

evident premeditation.
A threat to kill, unsupported by other evidence which would
disclose the true criminal state of mind of the accused, will
only be construed as a casual remark naturally emanating
from a feeling of rancor and not a resolution of the character
involved in evident premeditation. (People vs. Fuentesuela,
G.R. No. April 22, 1942)
(2) The mere fact that the accused stated in his extrajudicial
confession that as soon as he heard that the deceased had
escaped from the army stockade he prepared to kill him,
is not sufficient to establish evident premeditation. It is
necessary to establish that the accused meditated on his
intention between the time it was conceived and the time
the crime was actually perpetrated. Defendant's proposition
was nothing but an expression of his own determination
to commit the crime which is entirely different from
premeditation. (People vs. 77 Phil. 572)

(3) Evident premeditation was not present in the case at bar. It

is true that two days immediately preceding the shooting,
appellant threatened to shoot the deceased and on the eve
of the killing, appellant expressed his intention to finish
him. However, there was no showing, that in between,
appellant made plans or sought the deceased to accomplish
the killing. In fact, the killing happened when appellant
was plowing the field and the deceased unexpectedly
appeared thereat. It is clear that appellant's act of shooting
the deceased was not premeditated. The rule is that the
qualifying circumstance of premeditation is satisfactorily
established only if it is proved that the defendant had
deliberately planned to commit the crime, and ha d
persistently and continuously followed it, notwithstanding
that he had ample time to allow his conscience to overcome
the determination of his will, if he had so desired, after
meditation and This circumstance is not
proven where there is no evidence as to the time when the
defendant decided to kill the victim. (People vs. Sarmiento,
No. May 31 , 1963, 8 SCRA 263, 267-268; People
vs. Bautista, 79 Phil. 652, 657)

397
 AGGRAVATING CIRCUMSTANCES Art. 14
Evident Premeditation Par. 13

Existence of ill-feeling or grudge alone is not proof of

evident premeditation.
While the appellant might have nursed a grudge or resentment
against the victim, that circumstance is not a conclusive proof of evi-
dent premeditation. (People vs. Lacao, No. L-32078, Sept. 30, 1974
60 SCRA 89, 95)

It is true that about twelve days before the killing, the accused
tried to injure the victim. He desisted after he was restrained by third
persons who intervened during the altercation. The prosecution's
evidence does not show the steps that the accused took thereafter in
order that he could kill the victim on that fateful hour when the latter
was answering a call of nature on the porch of his house. Possibly,
the killing was actually premeditated but the prosecution's evidence
is not conclusive on the presence of that aggravating circumstance.
(People vs. Manangan, No. L-32733, Sept. 11, 1974, 59 SCRA 31,
39)

The mere fact that after lunch time the accused mauled and
detained the victim and that at around four o'clock, while the latter
was in their custody, he was killed, would not mean that there was
evident premeditation. (People vs. Manzano, Nos. L-33643-44, July
31 , 1974, 58 SCRA 250, 261-262)

What is sufficient lapse of time?

Evident premeditation was held attendant where the ac-
cused had had three day's time to meditate upon the crime
which he intended to commit, and was not prompted by the
impulse of the moment. (People vs. 92 Phil. 668,
670)
2. The existence of evident premeditation is undeniable.
From the incident that dated back one month previously
when the deceased during a fight, slapped the appellant
and ordered him to kneel down, the humiliation inflicted
him caused him to persist in the thought that one day he
would be avenged. So he made it clear on the very same
evening of that encounter. Two days later, he stepped on
the running board of a bus, peeped inside and inquired
if the deceased was there. When he did not find him, he
made the remark that if he were there, he had something

398
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 13 Evident Premeditation

for him. Under such a circumstance, the premeditation to

inflict harm is quite evident. (People vs. Mojica, 70 Phil.
502, 508-509)
3. Evident premeditation was attendant where the accused
had one whole day to make the necessary preparations from
the time he conceived the idea of attacking the deceased.
(People vs. 92 Phil. 577, 881)
4. Evident premeditation was attendant where the accused
had more than one-half day for meditation and reflection
and to allow his conscience to overcome the resolution of
his will las de la voluntad) had he
desired to hearken to its warnings. (U.S. vs. Gil, 13 Phil.
530, 547; People vs. Diaz, No. L-24002, Jan. 21 , 1974, 55
SCRA 178, 188)
5. Four hours that intervened between rage and aggression
of the accused is sufficient time for desistance. (People vs.
70 Phil. 525, 527)

6. When the accused came to know that the deceased deliv-

ered only 100 bundles of corn, he was enraged. That was
3:00 p.m. At 7:00 p.m. of same date, the accused armed
himself with a bolo and lance, went to the house of the
deceased, and killed the latter. The lapse of time of 3 1/2
hours between the plan and the commission of the crime is
sufficient time for the offenders to reflect dispassionately
upon the consequences of their contemplated act. (People
vs. Mostoles, 85 Phil. 883 , 892)
7. Evident premeditation was attendant where the accused
apprehended the victims about 10 o'clock in the evening
and the crime was consummated at about 1 o'clock early
the following morning. The accused had sufficient time
to meditate and reflect on the consequences of their act.
(People vs. Berdida, No. June SCRA
520, 530)

Three hours or less considered sufficient lapse of time.

Evident premeditation preceded the commission of the crime.
The slaying was done about three hours from the time the scheme to
kill was plotted. (People vs. Gausi, G.R. No. June

399
 AGGRAVATING CIRCUMSTANCES Art. 14
Evident Premeditation Par. 13

But where the defendant constabulary soldier was rebuked by

his superior at around 7:00 a.m. and, a quarter of an hour later, he
shot to death his superior, there was no premeditation because a
sufficient time did not elapse to allow the conscience of the accused
to overcome the resolution of his will if he desired to hearken to its
warning. (U.S. vs. Blanco, 18 Phil. 206, 208)

The appellant had only about half an hour for meditation

and reflection from the time he left the house, went to his camp,
put on his fatigue uniform, got a garand rifle and returned to said
house, followed the serenaders a short distance and then fired the
two shots. The time was insufficient for full meditation and reflec-
tion. (People vs. Pantoja, No. Oct. 11, 1968, 25 SCRA 468,
471)

But in People vs. Dumdum, Jr., No. July 30, 1979, 92

SCRA 198, 202 , it was held that the killing of the deceased was ag-
gravated by evident premeditation because the accused conceived of
the assault at least one hour before its perpetration.
However, in the later case People vs. Crisostomo, No.
Oct. SCRA evident premeditation was rejected
because the accused planned to kill the deceased at 7 o'clock in the
morning and the killing took place at 9 o'clock the same morning. The
accused did not have sufficient time to reflect during the two hours
that preceded the killing.

Why sufficient time is required.

The offender must have an opportunity to coolly and serenely
think and deliberate on the meaning and the consequences of what
he planned to do, an interval long enough for his conscience and
better judgment to overcome his evil desire and scheme. (People vs.
Mendoza, 91 Phil. 58, 64)
Evident premeditation contemplates cold and deep meditation,
and tenacious persistence in the accomplishment of the criminal act.
(People vs. Gonzales, 76 Phil. 473) Mere determination to commit
the crime does not of itself establish evident premeditation for it
must appear, not only that the accused made a decision to commit
the crime prior to the moment of execution, but also that his decision
was the result of meditation, calculation or reflection or persistent
attempt. (People vs. 77 Phil. 572; People vs. Sarmiento, No.
May 31 , 1963, 8 SCRA 263 , 268)
400
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 13 Evident Premeditation

There must be sufficient time between the outward acts

and the actual commission of the crime.
Thus, the mere fact that the accused was lying in wait for his
victim just before the attack is not sufficient to sustain a finding of
evident premeditation, in the absence of proof that he had been lying
in wait for a substantial period of time. (U.S. vs. Buncad, 25 Phil.
530, 539)
But when it appears that the accused borrowed a bolo for the
purpose of committing the crime early in the morning and was lying
in wait for some time before he attacked his victim, evident premedi-
tation is sufficiently established. (U.S. vs. Mercoleta, 17 Phil. 317,
320)

Conspiracy generally presupposes premeditation.

Where conspiracy is directly established, with proof of the at-
tendant deliberation and selection of the method, time and means
of executing the crime, the existence of evident premeditation can
be taken for granted. (U.S. vs. Cornejo, 28 Phil. 457, 461 ; People vs.
74 Phil. 295, 297)

Exception:
But when conspiracy is only implied, evident premedita-
tion may not be appreciated, in the absence of proof as to how and
when the plan to kill the victim was hatched or what time had elapsed
before it was carried out. (People vs. Custodio, 97 Phil. 698, 704;
People vs. Upao Moro, G.R. No. May 28, 1957)

Evident premeditation and price or reward can

The aggravating circumstance of price, reward, or promise may
be taken into consideration independently of the fact that premedita-
tion has already been considered, inasmuch as there exists no incom-
patibility between these two circumstances, because if it is certain
that as a general rule price or reward implies premeditation, it is no
less certain that the latter may be present without the former. (U.S.
vs. Robor, 7 Phil. 726, 728)
Premeditation is absorbed by reward or promise. (People vs.
G.R. No. December 24, 1938)

401
 AGGRAVATING CIRCUMSTANCES Art. 14
Evident Premeditation Par. 13

But this rule is applicable only to the inductor. The mere fact
that another executed the act on the promise of reward does not neces-
sarily mean that he had sufficient time to reflect on the consequences
of his act. (U.S. vs. Manalinde, 14 Phil. 77, 82)

When victim is different from that intended, premeditation

is not aggravating.
Evident premeditation may not be properly taken into account
when the person whom the defendant proposed to kill was different
from the one who became his victim. (People vs. Mabug-at, 51 Phil.
967, 970; People vs. Guillen, 85 Phil 307, 318; People vs. Hilario, et
G.R. No. 128083, March 16, 2001)

Distinguish the ruling in the case from that in the Guillen

case.
It is true that in the case of People vs. Guillen, 85 Phil. 307, it
was held that when the person killed is different from the one intended
to be killed, the qualifying circumstance of evident premeditation
may not be considered as present; however, in the case of People vs.
Timbol, et G.R. Nos. August it was held
that evident premeditation may be considered as present, even if a
person other than the intended victim was killed, if it is shown that
the conspirators were determined to kill not only the intended victim
but also any one who may help him put a violent resistance. (People
vs. 97 Phil. 515, 535)

It is not necessary that there is a plan to kill a particular

person.
For premeditation to exist, it is not necessary that the accused
planned to kill a particular person.
(1) The criminal intent which was carried out was to kill the
first two persons whom the accused should meet at the
place where he intended to commit the crime. Evident
premeditation was considered against the accused. (U.S.
vs. Manalinde, 14 Phil. 77, 82)
(2) After careful and thoughtful meditation, the accused
decided to kill, at th e first op p ortu n i ty, whatever
individual he should meet from the town of Macabebe,

402
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 13 Evident Premeditation

on account of the previous illness of his son of cholera

which he attributed to the persons from Macabebe. Held:
Inasmuch as the accused intentionally sought out a
native of the town of Macabebe, a human being, there is
no doubt that, actuated by the impulse of his prejudice
against any individual from Macabebe and obedient to
his criminal resolution seriously conceived and selected
to carry out vengeance, he perpetrated the crime with
premeditation. (U.S. vs. Zalsos and 40 Phil. 96,
103)
(3) A general attack upon a having been premeditated
and planned, the killing of any individual during the attack
is attended by the aggravating circumstance of evident
premeditation. (U.S. vs. Rodriguez, 19 Phil. U.S.
vs. Binayoh, 35 Phil. 23, 30; U.S. vs. Butag, 38 Phil. 746,
747)

Reason for the difference of the rulings.

When the offender decided to kill a particular person and pre-
meditated on the killing of the latter, but when he carried out his plan
he actually killed another person, it cannot properly be said that he
premeditated on the killing of the actual victim.
But if the offender premeditated on the killing of any person, like
the offender in the Manalinde case who decided to kill the first two
persons he would meet in the market place, it is proper to consider
against the offender the aggravating circumstance of premeditation,
because whoever is killed by him is contemplated in his premedita-
tion.
And where the victim belonged to the class designated by the
accused, although the victim was not previously determined by him,
premeditation is an aggravating circumstance.
In the case of U.S. vs. Zalsos and Ragmac, supra, the victim, a
peddler from the town of Macabebe, belonged to the class designated
by the accused, that is, "persons from to whom he attrib-
uted the existence of a cholera epidemic in his barrio. Such being the
case, any individual from the town of Macabebe was contemplated in
his premeditation.

403
 AGGRAVATING CIRCUMSTANCES Art. 14
Craft, Fraud or Disguise
Par. 14

Distinguished from the Caranto case.

In the Caranto case, it appears that the victim was also
termined, and the threats made by defendant who had lost a fishing
boat was that either he or the thief would be turned into ghost. The
killing of the thief afterwards was held not to be murder qualified
by evident premeditation, because there was merely a threat which
was not of a direct and specific character. (U.S. vs. Caranto, 4 Phil.
256, 257)

Evident premeditation, while inherent in robbery, may be

aggravating in robbery with homicide if the premeditation
included the killing of the victim.
It is inherent in robbery, specially where it is committed by
various persons, because they must have an agreement, they have
to meditate and reflect on the manner of carrying out the crime
and they have to act coordinately in order to succeed. But if there
is evident premeditation not only to steal personal property in the
house of Judge Bautista but also to kill him, it shall be considered
to increase the penalty. (People vs. 90 Phil. People
vs. Nabual, No. L-27758, July 14, 1969, 28 SCRA 747, 752)

If there is no evidence that the conspirators previously planned

and agreed to kill the victims, evident premeditation is not aggra-
vating in robbery with homicide. (People vs. Pulido, 85 Phil. 695,
709)
Where the killing of a person during the commission of robbery
was only an incident, because their original plan was only to rob, and
they killed the deceased when the latter refused to open the de
and fought with them, this aggravating circumstance should be
disregarded. (People vs. No. L-32040, Oct. 97 SCRA
570, 576)

Par. 14. - That (1) craft, (2) fraud, or (3) disguise be employed.

Basis of this aggravating circumstance.

The basis has reference to the means employed in the commis-
sion of the crime.

404
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 14 Craft, Fraud or Disguise

Application of this paragraph.

This circumstance is characterized by the intellectual or mental
rather than the physical means to which the criminal resorts to carry
out his design. This paragraph was intended to cover, for example, the
case where a thief falsely represents that he is the lover of the serv-
ant of a house in order to gain entrance and rob the owner
or where A simulates the handwriting of B, who is a
of C, inviting the latter, without the knowledge of B, by means of a
note written in such simulated hand, to meet B at the designated
place, in order to give A, who lies in wait at the place appointed, an
opportunity to kill or where one uses a disguise to prevent
being recognized. (U.S. vs. Rodriguez, 19 Phil. 150, 155)

Craft (involves intellectual trickery and cunning on the part of the

accused).
Craft involves the use of intellectual trickery or cunning on the
part of the accused. It is not attendant where the accused was practi-
cally in a stupor when the crime was committed. (People vs. Juliano,
No. L-33053, Jan. 28, 1980, 95 SCRA 511 , 526)
Craft is chicanery resorted to by the accused to aid in the
execution of his criminal design. It is employed as a scheme in the
execution of the crime. It is not attendant where the regular driver
of the victim feigned illness to enable another driver to drive for the
victim who drove the vehicle first to the house of the regular driver
who said he was already well and so he boarded with his co-accused,
took over the driver's seat, and during the trip shot the victim who
was also on board the vehicle. (People vs. Zea, No. June 29,
1984, 130 SCRA 77, 81 , 90)
Where four men, having determined to kill a man in an un-
inhabited place so that the crime might be less easily discovered,
invited him to go with them on a journey to a distant mountain on
the pretense that they would find there a tree from which
flowed a liquid supposed to have a peculiar virtue, and murdered him
in a remote and uninhabited place, the aggravating circumstance of
craft was present and should be taken into account for the purpose
of increasing the penalty. (U.S. vs. 36 Phil. 817, 818, 820;
People vs. Alcaraz, 103 Phil. 533 , 549)
The act of the accused in pretending to be bona fide passengers
in the taxicab driven by the deceased, when they were not so in fact,

405
 AGGRAVATING CIRCUMSTANCES Art. 14
Craft, Fraud or Disguise
Par. 14

in order not to arouse his suspicion, and then killing him, constituted
craft. (People vs. Daos, 60 Phil. 143, 154)

The act of the accused in assuming position of authority, pretend-

ing to be a member of the when he was not, to gain entrance and
be able to be with the offended party alone in the latter's house, thus
enabling him to commit acts of against her, constituted
craft. (People vs. Timbol, C.A., 47 O.G. 1869)
Where defendants pretended to be constabulary soldiers to gain
entry into the place of the victims, craft is properly appreciated as an
aggravating circumstance. (People vs. Saquing, No. L-27903, Dec. 26,
1969, 30 SCRA 834 , 844)
The act of the accused in brushing the dirt on the pants of the
offended party, which the accused himself had dirtied, and while the
attention of the offended party was centered on the act of the accused, a
confederate of the accused grabbed the wallet of the offended party from
behind, constituted craft. (People vs. Bagtas, C.A., 47 O.G. 1251)
In a case where the defendants asked the offended party to
change a and, when the latter took out his wallet, the defend-
ants snatched it from the hand of the offended party, it was held that
the crime of robbery was attended by the aggravating circumstance
craft. (People vs. Mallari, 60 Phil. 400, 402, 405)
Craft was used by the accused in the commission of the offense of
rape when the accused resorted to the use of innocent-looking choco-
late candies which did not arouse the suspicion of the complainant
that they contained deleterious drug, the purpose of the accused in
giving them being to weaken her resistance so that she would not be
able to repulse physically and mentally his sexual assault. (People
vs. Guy, C.A., 64 O.G. 13557)
There is craft where the accused lures out the victim from his
house in order to be killed. (People vs. Barbosa, No. L-39779, Nov. 7,
1978, 86 SCRA 217, 225)
Craft was attendant where all the accused with murder in their
hearts pretended to accompany the victim in a friendly manner in
going home and in order to lure him into a false sense of security and
making him unmindful of the tragedy that would befall him, one of
them even placed his hands on the shoulder of the victim while walk-
ing. (People vs. Molleda, No. L-34248, Nov. 21 , 1978, 86 SCRA 667,
705)

406
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 14 Craft, Fraud or Disguise

The presence of craft cannot be disputed for the appellant had

deceived the victim into coming to her apartment under the pretext
of accompanying the victim to the bank, and played on the victim's
seeming fondness for one Reynaldo Sioson to lure said victim to
the third floor of the apartment where the appellant committed
the crime. The unsuspecting victim found herself caught in the
malevolent trickery practiced by the appellant, the consequence of
which proved fatal. (People vs. Rodriguez, No. March 31 ,
1980, 96 SCRA 722, 738-739)
But craft is not attendant where the unlawful scheme could have
been carried out just the same even without the pretense. (People vs.
Nos. 89418-19, Nov. SCRA 530, 543)

Craft, when not an aggravating circumstance.

Where craft partakes of an element of the offense, the same
may not be appreciated independently for the purpose of aggrava-
tion. Vide, Article 62, pars. 1 and 2, Revised Penal Code. Thus, when
the offender never intended to genuinely enter into the transaction
of purchase and sale with the owner of the jeep, to the offender the
deed of sale being a sham, as he did not pay the price thereof, the
fraud takes the place of trespass in the taking of the jeep involved in
the crime of qualified theft committed by him. (People vs.
C.A., 59 O.G. 4521)
Craft is not clearly established where the evidence shows that
the accused and his companions, who came out from behind a patch
of bamboo trees, did not camouflage their hostile intentions at the
incipiency of the attack, as they announced their presence at the
scene of the crime with shouts and gunshots. (People vs. Cunanan,
No. Jan. 20, 1977, 75 SCRA 15, 17, 23)

F ra u d (insidious words or machinations used to induce the victim

to act in a manner which would enable the offender to carry out his
design).
Where the defendants induced their victims to give up their
arms upon a promise that no harm should be done to them (U.S. vs.
Abelinde, 1 Phil. 568, 574), and when the latter gave up their arms,
the former attacked and killed them, it was held that there was
and where the defendants, upon the pretext of wanting to buy a bot-

407
 AGGRAVATING CIRCUMSTANCES Art. 14
Craft, Fraud or Disguise Par. 14

of wine, induced the victim to go down to the lower story of his

dwelling where the wine was stored, entered it when the door was
opened to him, and there commenced the assault which ended in his
death, it was also held that there was fraud. (U.S. vs. Bundal, 3 Phil.
89, 90, 98)

Does gaining entrance by pretending to buy cigarettes or to

drink water constitute craft?
To enter the house of Pedro one of the accused
shouted from the outside that they wanted to buy which
induced the owner to open the kitchen for them, and one of them
said that they wanted to drink some water which also paved the
way for their intrusion in the house. Once inside, they committed
robbery with rape. It was held that the aggravating circumstance
of craft attended the commission of the crime. (People vs. Napili,
85 Phil. 521 , 527, citing U.S. vs. 36 Phil. 817 , and
People
vs. Daos, 60 Phil. 143)

The facts constituting the aggravating circumstance being

similar to those in the case of U.S. vs. Bundal, supra, it should be
fraud.
The accused, stepfather of the offended party, taking advantage
of the absence of the girl's mother, went to the house and took the
young girl away, telling the latter that she was to be taken to her
godmother's house. The accused, however, took the girl to another
house where he ravished her. Held: The accused committed rape,
employing fraud. (People vs. De Leon, 50 Phil. 539, 545)

Hairline distinction between craft and fraud.

There is craft or fraud when by trickery, accused gained entrance
in victim's house. By pretending they had pacific intentions (to
buy chickens) in desiring to enter home, they allayed his
suspicions. They gained entrance into the house with his consent
through trickery or deceit. (People vs. Saliling, No. L-27974, Feb. 27,
1976, 69 SCRA 427, 443)

How is craft distinguished from fraud?

When there is a direct inducement by insidious words or machi-
nations, fraud is present; otherwise, the act of the accused done in
408
order not to arouse the suspicion of the victim constitutes craft.

409
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 14 Craft, Fraud or Disguise

D i s g u i s e (resorting to any device to conceal identity).

The fact that the defendant had his face blackened in order that
he should not be recognized at the time he committed the crime con-
stitutes the aggravating circumstance of disguise. (U.S. vs.
4 Phil. 154, 157)
When the defendant covered his face with handkerchief before
committing the crime, the aggravating circumstance of disguise is
present. (People vs. 63 Phil. 546, 553)
But if in spite of the use of handkerchief to cover their faces, the
culprits were recognized by the victim, disguise was not considered
aggravating. (People vs. Sonsona, G.R. No. L-8966, May
The accused with two others wore masks to cover their faces.
There could have been no other purpose for this but to conceal their
identities particularly for the one who was very much known to the
offended parties. The fact that the mask subsequently fell down thus
paving the way for this one's identification does not render the ag-
gravating circumstance of disguise inapplicable. (People vs. Cabato,
No. L-37400, April 160 SCRA 98, 110)
In a case where the defendant illegally wore a Constabulary
uniform, it was held that the aggravating circumstance of disguise
was present. (People vs. Gonzalez, 56 Phil. 842
The use of an assumed name in the publication of a libel constitutes
disguise. (People vs. C.A., G.R. No. 43808, Aug.

Disguise, not considered.

It is also worth mentioning that while appellant reportedly had
a sort of a mask and was using sunglasses, these clumsy accouter-
could not constitute the aggravating circumstance of
Legally, disfraz contemplates a superficial but somewhat effective
dissembling to avoid identification. Here, even if it is true that he as-
sumed that masquerade, appellant was readily recognizable because
his face could easily be seen together with the identifying feature of
his mustache. (People vs. Reyes, G.R. No. March 9, 1998)

The purpose of the offender in using any device must be to

conceal his identity.
While it appears that some of the offenders had cloths wrapped
about their heads, it does not appear that this was done as a disguise,
410
 AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15

but was following rather the custom of the country in which they had
been reared. (U.S. vs. Rodriguez, 19 Phil. 150, 156)
The act of the accused in disguising herself by using her hus-
band's clothes and a hat given to her by her companion before they
continued on their way to the place where she killed the deceased,
was not considered aggravating circumstance of disguise, because
she did it for fear of being attacked on the way. (U.S. vs. Guysayco,
13 Phil. 292, 293 , 296)

The malefactors resorted to a disguise. That circumstance

did not facilitate the c o n s u m m a t i o n of the killing. Nor was i t
taken advantage of by the malefactors in the course of the assault.
According to the prosecution's version, at the incipiency of the
attack, the accused and his companions did not camouflage their
hostile They announced their presence at the scene of the
crime with shouts and gunshots. That mode of attack counteracted
whatever deception might have arisen from their disguise. (People
vs. Cunanan, No. Jan. 20, 1977, 75 SCRA 15, 23)

Par. 15. — That advantage be taken of superior strength, or

(2) means be employed to weaken the defense.

Meaning of "advantage be
Note the word "advantage" in this paragraph.
To take advantage of superior strength means to use purposely
excessive force out of proportion to the means of defense available
to the person attacked. (People vs. Cabiling, No. Dec. 17,
SCRA citing Albert's Commentaries on the Revised
Penal Code, pp. 126-127; People vs. Sarabia, No. March 31,
1980, 96 SCRA citing Cabiling; People vs. Cabato, No.
April 15, 1988, 160 SCRA 98, 110, citing Cabiling; People
vs. Carpio, G.R. Nos. 82815-16, Oct. 31 , 1990, 191 SCRA 108, 119,
citing Cabato; People vs. Moka, G.R. No. 88838, April 26, 1991, 196
SCRA 378, 387, citing Cabato)

Illustrations of no advantage of superior strength.

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

411
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense

(2) This aggravating circumstance does not apply when a

quarrel arose unexpectedly and the fatal blow was struck
at a time when the aggressor and his victim were engaged
against each other as man to man. (U.S. vs. Badines, 4
Phil. 594, 595)
In these two cases, the offenders may or might have superior
strength, but they do not or did not take advantage of it.

Illustrations of abuse of superior strength.

An illustration of the cases which fall within this provision
is where, for example, a strong man has ill-treated a child,
an old or decrepit person, or one weakened by disease, or
where a person's physical strength has been overcome by
the use of drugs or intoxicants. In each of these cases, there
is a marked difference of physical strength between the
offended party and the offender. (U.S. vs. Devela, 3 Phil.
625, 628)
(2) The deceased Martir wa s unarmed , under the
influence of liquor. He was much smaller than Navarra.
Navarra' s attack came after he (Martir) wa s pushed
to the wall by Antonio Santiago. Not content with this
and after Martir tried to escape, Virgilio Cruz fired at
him. Not only that, this was followed by two other shots
from Navarra. Since the aggressors were police offic-
ers fully armed, and the deceased was d efen sel ess and
under the influence of liquor, a clear case of abuse of
superiority is present. The two took advantage of these
circu mstances to c on su m ma te the offense. (People vs.
Navarra, G.R. No. L-25607 , October 25 SCRA
491 , 497 )
(3) The a gg ra va ti n g c i r c u m s t a n c e of abus e of superi or
strength is attendant where the victim who died was an
innocent and tender baby, barely six months old, and the
wounded children were aged five (5) and twelve years
old, because of the marked difference of physical strength
between the offended parties and the offender. (People
vs. Gatcho, No. Feb. 26, 1981, 103 SCRA 207,
220)

412
 AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15

When the attack was on the victim alternately, there is no abuse

of superior strength.

Us e of superior stren gth should not be considered even if all

the accused delivered blows upon the victim, because the attack
was made on the victim alternately, one after the other. (People
vs. Narciso, No. L -24484 , May 28 , 1968 , 23 SCRA 844 , 8 65 - 866
)

Abuse of superior strength when a man attacks a woman

with a weapon.
An attack made by a man with a deadly weapon upon an un-
armed and defenseless woman constitutes the circumstance of abuse
of that superiority which his sex and the weapon used in the act af-
forded and from which the woman was unable to defend herself.
(People vs. Guzman, 107 Phil. 1122, 1127, citing U.S. vs.
36 Phil. 757; U.S. vs. Consuelo, 13 Phil. 612; People vs. Quesada, 62
Phil. 446)

Illustrations:
a. The accused attacked an unarmed 4 feet, 11-inch girl
with a knife. He had abused the superiority which his sex
and weapon employed afforded him, and from which the
deceased would be unable to defend herself. (People vs.
No. Oct. 31 , 1969, 30 SCRA 307, 315)
The accused was armed while the victim, a married woman,
was unarmed and she guilelessly approached the group of
the without the least inkling that any harm would
befall her, when she was shot in the back after her hands
were tied behind her. Abuse of superiority was employed in
liquidating her. (People vs. Clementer, No. Aug.
30, 1974, 58 SCRA 742, 744, 749)
The female victim was stabbed to death. Three men
had earlier invaded her house. Her husband was away
fishing with the husband of her sister who was her only
companion and her sister's one-year-old son. Certainly,
an attack by three men against a helpless and defenseless
woman constitutes abuse of superior strength. (People vs.
Patinga, No. Jan. 18, 1982, SCRA 52, 58,
413
62)

414
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense

No abuse of superior strength in parricide against the wife.

Abuse of superior strength is inherent in the crime of parricide
where the husband kills the wife. It is generally accepted that the
husband is physically stronger than the wife. (People vs. Galapia,
Nos. Aug. 1, 1978, 84 SCRA 526, 531)

That the victim is a woman is inherent in parricide.

Abuse of superior strength, however, should not be applied to
the case of a husband who kills his wife, for the reason that sex is
inherent in the crime of parricide. (Decision of the Supreme Court
of Spain of April 28, 1873; People vs. Galapia, 84 SCRA 526)

Evidence of relative physical strength necessary.

But the mere fact that one person was attacked by two aggres-
sors does not constitute this aggravating circumstance, if the rela-
tive physical strength of the parties does not appear. There must be
evidence that the accused were physically stronger and that they
abused such superiority. (People vs. Bustos, Phil. 385, 392; People
vs. 63 Phil. The mere fact of there being a superior-
ity of numbers is not sufficient to bring the case within aggravating
circumstance. (U.S. vs. Devela, supra; People vs. G.R.
No. 85246, Aug. 30, 1990, 189 SCRA 250, 258)

Illustrations:
a. The records of the case are bereft of any information with
respect to the physical conditions of both the accused and
the victims. Thus, abuse of superior strength cannot be
considered. (People vs. Cabato, No. L-37400, April
160 SCRA 98, 110)
b. There wa s error in appreciating the circu mstance of
abuse of superior strength. There is no evidence of the
respective or joint participation of the two accused in as-
saulting the victim, much less that they took advantage
of their superior strength. (People vs. Maloloy-on, G.R.
No. 85246 , Aug. 30 , 1990 , 189 SCRA 250 , 258 )

The fact that there were two (2) male persons who attacked
the victim does not per se establish that the crime was com-
mitted with abuse of superior strength there being no proof

415
 AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15

of the relative strength of the aggressors and the

(People vs. Carpio, G.R. Nos. 82815-16, Oct. 191
SCRA 108, 119)

When abuse of superior strength is aggravating.

The aggravati ng circumstance of abuse of superior strength
depends on the age, size and strength of the parties. It is consid-
ered wh en ever there is a notorious inequality of forces between
the victim and the aggressor, as se ss i n g a superiority of strength
notoriously ad van tageou s for the aggressor which is selected or
taken advantage of by him in the commission of the crime. (Peo-
ple vs. Carpio, supra; People vs. Cabato, supra; People vs. Moka,
supra)

Number of aggressors, if armed, may point to abuse of su-

perior strength.
In the cases U.S. vs. Tandoc, 40 Phil. and People
vs. Caroz, 68 Phil. 521 , 527, the greater number of the assaulting
party was considered by the Supreme Court in determining the
circumstance of superior strength. But it will be noted that in those
cases, the accused were armed.
It is manifest that defendants acted with abuse of superior
strength, for whereas the three (3) of them were wielding the
victim was unarmed and trying to flee. Hence, the crime committed
was murder, qualified by abuse of superior strength. (People vs.
Verzo, G.R. No. Dec. 26, 1967, 21 SCRA 1403, 1410)
But in a case where three persons armed with bolos attacked
another who was armed with a revolver, it was held that there was
no abuse of superior strength, as their strength was almost balanced,
a revolver being as effective, if not more so, than three bolos. (People
vs. Antonio, 73 Phil. 421 , 424-425)
Similarly, there is no abuse of superior strength where the ac-
cused did not cooperate in such a way as to secure advantage from
their combined strength. The fact that the accused did not conspire
to kill the victim implies that they did not jointly exploit their supe-
rior strength. Numerical superiority does not always mean abuse of
superiority. (People vs. Jr., No. March 28, 1974, 56
210, 217)

416
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense

Abuse of superior strength by numerical superiority.

The two accused jumped on the victim as he was wrestling
with their companion who has remained at large. It was
while they had him thus outnumbered that one of the ac-
cused delivered the fatal blow. There was abuse of superior
strength. (People vs. Boyles, No. May 29, 1964,
11 88, 95)
2. The assailants were four in number and were armed with
bladed instruments. The deceased was alone, unarmed, and
taken by surprise. Abuse of superior strength was properly
considered. (People vs. Casillar, No. Nov.
30 SCRA 352, 358)
3. The three assailants are brothers. Alejandro, who was
armed with a bolo (sondang) lay in wait for the victim
and his brother, and they encountered him as they were
fleeing after Joaquin had threatened them. As the victim
retreated, and his brother took refuge in a grassy place,
Joaquin appeared from behind, holding a barbed harpoon
(gata-ao) which he plunged into the victim's back and then
tried to pull it out. While Joaquin was trying to extricate
the harpoon which got stuck because of its hooks, Alejandro
stabbed the victim with his sondang. The victim fell to the
ground. also armed with a sondang, slashed the
prostrate victim in the abdomen. Alejandro and Antonieto
repeatedly stabbed him while Joaquin was pulling out the
harpoon. The victim died in consequence of his numerous
wounds. Abuse of superiority is aggravating. The three
assailants took advantage of their combined strength to
overpower the victim. (People vs. Velez, No. L-30038, July
18, 1974, 58 SCRA 21 , 24, 31)
4. There were several assailants who literally ganged up on
the victim. He had to flee because he could not cope with
the successive and simultaneous assaults of his assail-
ants. Even the armed policeman, who was present at the
scene of the fight, could not break up the fight because
the victim had several adversaries. All that the
could do was to fire his carbine into the air. There was
marked disparity between the strength of the victim and
the strength of the aggressors who, at the last stage of the

417
 AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15

fight, surrounded their quarry, wounded him repeatedly

and left him only when he was sprawled on the ground.
Evidently, the assailants cooperated in such a way as to
derive advantage from their combined strength and to
insure the victim's death. Abuse of superiority was cor-
rectly appreciated.
Our jurisprudence is exemplified by the holding that where
four persons attacked an unarmed victim but there was
no proof as to how the attack commenced and treachery
was not proven, the fact that there were four assailants
would constitute abuse of superiority. (People vs. Garcia,
No. L-30449, Oct. 94 SCRA 14, 28, People
vs. No. 6742 , Jan. 21 Phil. 287; U.S. vs.
No. 7870 , Jan. 10, 1913 , 24 Phil. 69)

6. Abuse of superiority is attendant where two accused, both

armed with knives, had cooperated in such a way as to se-
cure advantage from their combined superiority in strength
and took turns in stabbing the victim who was unarmed.
(People vs. No. L-38094, Nov. SCRA
227, 239)
7. It is manifest that the accused, together with his co-as-
sailants who unfortunately have not been apprehended,
took advantage of their superior strength, when the four
of them, two of whom were armed with bladed weapons,
surrounded and stabbed the unarmed, helpless and unsus-
pecting victim. Abuse of superior strength is aggravating.
(People vs. Madlangbayan, No. L-33607, Dec. 94
SCRA 679, 686)
8. Given the fact that the victim, himself unarmed, was
simultaneously attacked by the two appellants and the
third accused who has remained at large, all of them with
weapons, they took advantage of superior strength. (G.R.
No. 74736, Feb. 18, 1991, 194 SCRA 120, 128)
9. Advantage of superior strength attends. The number of
the assailants and the firearms and bolos which they used
on the victim show notorious inequality of forces between
the victim and the aggressor. (People vs. Moka, G.R. No.
88838, April 26, 1991, 196 SCRA 378, 386)

415
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense

There were four (4) accused, relatively of regular, me-

dium build and size. Two were armed with "guhi" (piece
of bamboo, sharpened or pointed at one end) and stone
and the other two with Indian arrows. The four were car-
rying bolos inside a scabbard and tied to the waist. The
victim was unarmed. He had companions but they did
not do anything to help him. Abuse of superior strength
was correctly found to be attendant. (People vs.
G.R. No. Aug. 16, 1991, 200 SCRA 624 , 635-636)

There is abuse of superior strength when weapon used is out

of proportion to the defense available to the offended
party.
Abuse of superior strength is present not only when the offenders
enjoy numerical superiority or there is a notorious inequality of force
between the victim and the aggressor, but also when the offender uses
a powerful weapon which is out of proportion to the defense available
to the offended party. (People vs. Padilla, 233 SCRA 46)

Simultaneous attack by two persons with revolvers a

defenseless person is aggravated by superior strength.
When two persons took part in the crime armed with bolos or
revolvers and made a simultaneous attack upon a defenseless person,
the aggravating circumstance of abuse of superior strength should
be taken into consideration. (U.S. vs. Bahagale, 24 Phil. 69, 71 , 83;
U.S. vs. 51 Phil. 670, 675; U.S. vs. 21 Phil. 287, 291)
In these cases, the two defendants are both guilty as principals.

There is no abuse of superior strength when one acted as

principal and the other two as accomplices.
But when the court finds that one of the three accused committed
the crime as principal and the two as accomplices, abuse of superior
strength cannot be taken into consideration, because it would be
inconsistent. Where abuse of superior strength is to be estimated as
an aggravating circumstance from the mere fact that more than one
person participated in the offense, it must appear that the accused
cooperated together in some way designed to weaken the defense. This
would make them guilty in the character of principals. (People vs.
55 Phil. vs. People, G.R. No. L-20338,
April 27, 1967, 19 SCRA 842, 846)
416
 AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15

When there is an allegation of treachery, superior strength

is absorbed.
Like nighttime, superior strength is absorbed and inherent in
treachery. (People vs. Mobe, 81 Phil. 58, 63; People vs. 87
Phil. 743, 745; People vs. Renejane, Nos. L-76954-55, Feb. 26, 1988,
158 SCRA 258, 269; People vs. Centeno, G.R. No. 33284, April 20,
SCRA People vs. G.R. No. 63396, Nov. 15,
SCRA 415, 421)

Abuse of superior strength is aggravating in coercion and

forcible abduction, when greatly in excess of that required
to commit the offense.
Abuse of superior strength may be present in coercion (Art. 286)
or forcible abduction. (Art. 342; People vs. Fernando, C.A., 43 O.G.
1717) Although the commission of the crime of coercion or forcible
abduction presupposes superiority of force on the part of the offenders,
yet when the strength availed of is greatly in excess of that required
for the realization of the offense, as where the offenders were very
much superior to the complainant individually and collectively
People vs. Dayug, 49 Phil. 423 , 427; People vs. Pineda, 56 Phil. 688,
689, 690), abuse of superior strength should be considered for the
purpose of increasing the penalty.

Other crimes in which abuse of superior strength is aggra-

vating.
Abuse of superior strength is aggravating in illegal detention
(Arts. 267 and 268), where six persons took and carried away the
victim from his home (U.S. vs. Santiago, 4 Phil. in robbery
with rape, committed by five armed persons (People vs. Macaya, 85
Phil. 540, in multiple rape, committed four men (U.S. vs.
Camiloy, 36 Phil. 757, 758); in robbery with homicide, committed by
three men. (People vs. Boyles, No. May 29, 1964, 11 SCRA
88, 91-92, 96)

The circumstance of "by a band" and that of "abuse of

supe- rior strength," distinguished.
The circumstance of abuse of superiority was, however, with-
drawn by the prosecution on the ground that since the offense of

417
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 15 Superior Strength or Means to Weaken Defense

robbery with homicide was committed by a band, the element of

necessarily absorbs the circumstance of abuse of superior
strength. We believe that said withdrawal was ill-advised since the
circumstances of band and abuse of superiority are separate and
distinct legal concepts.
The element of band is appreciated when the offense is com-
mitted by more than three armed malefactors regardless of the com-
parative strength of the victim or victims. Hence, the indispensable
components of cuadrilla are (1) at least four malefactors, and (2) all
of the four malefactors are armed. On the other hand, the gravamen
of abuse of superiority is the taking advantage by the culprits of their
collective strength to overpower their relatively weaker victim or
victims. Hence, in the latter aggravating factor, what is taken into
account is not the number of aggressors nor the fact that they are
armed, but their relative physical might the offended party.
(People vs. Apduhan, Jr., No. Aug. 30, 1968, 24 SCRA 798,
814-815)

The aggravating circumstance of the commission of the crime by a

band has been established, it appearing that there were more than three
armed malefactors who acted together in the commission of the offense.
(People vs. No. March 14, 1988, 158 SCRA 602,
613)
The aggravating circumstance of commission of a crime by a
band was incorrectly appreciated. A band (en cuadrilla) consists of
at least four malefactors who are all armed. When there were only
three perpetrators and two weapons, a kitchen knife and a dagger,
the terrible threesome of the accused did not constitute a band.
(People vs. Ga, G.R. No. 49831 , June SCRA 790, 797-
798)

Aggravating circumstances absorbing band.

Abuse of superiority absorbs cuadrilla. If treachery absorbs
abuse of superiority and band (U.S. vs. Abelinde, 1 Phil. then
it is reasonable to hold that band should not be treated separately and
distinct from abuse of superior strength. The two circumstances have
the same essence which is the utilization of the combined strength of
the assailants to overpower the victim and consummate the killing.
vs. Medrana, No. Dec. 14, 1981, 110 SCRA 130,
145)

418
 AGGRAVATING CIRCUMSTANCES Art. 14
Superior Strength or Means to Weaken Defense Par. 15

The aggravating circumstance of by a band is absorbed in treach-

ery. (People vs. G.R. No. 75366, July 4, 1990, 187 SCRA
People vs. Rojas, Nos. L-46960-62, Jan. SCRA
169, 178-179)

Means employed to weaken defense.

The circumstance of employing means to weaken the defense is
illustrated in the case where one, struggling with another, suddenly
throws a cloak over the head of his opponent and while in this situ-
ation he wounds or kills him. (U.S. vs. Devela, supra)
One who, while fighting with another, suddenly casts sand or
dirt upon the latter's eyes and then wounds or kills him, evidently
employs means which weaken the defense of his opponent. (People
vs. Siaotong, G.R. No. L-9242, March 29, 1957)
But the mere fact that a Garand rifle was used in killing the
victim does not necessarily raise the aggravating circumstance of
employing means to weaken the defense. (People vs. No.
Oct. 27, 1988, 166 SCRA 638, 649)

Intoxicating the victim to weaken defense.

This aggravating circumstance exists also when the offender,
who had the intention to kill the victim, made the deceased intoxicat-
ed, thereby materially weakening the latter's resisting power. (People
vs. 53 Phil. 280, 289)

If the state of intoxication is such that the victim cannot put

up any sort of defense — treachery.
If in his intoxicated state it was impossible for the victim to put
up any sort of resistance at the time he was attacked, treachery may
be considered. (People vs. Ducusin, supra)

Applicable only to crimes against persons, etc.

This circumstance is applicable only to crimes against persons,
and sometimes against person and property, such as robbery with
physical injuries or homicide.

Note: In People vs. Guy, supra, employing means to weaken the

defense is not the aggravating circumstance. It is craft.

419
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

Means to weaken the defense absorbed in treachery.

The aggravating circumstance of employing means to weaken
the defense is absorbed by treachery. (People vs. Tunhawan, No. L-
81470, Oct. 27, 1988, 166 SCRA 638, 649-650)

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

Basis of this aggravating circumstance.

The basis has reference to the means and ways employed in the
commission of the crime.

Meaning of treachery.
There is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the execu-
tion thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended
party might make. (Art. 14, par. 16, Revised Penal Code; People
vs. Lacao, Sr., G.R. No. 95320 , Sept. 4, 1991 , 201 SCRA 317 ,
330;
People vs. Velaga, Jr., G.R. No. 87202 , July 23 , 1991 , 199 SCRA

Treachery means that the offended party was not given opportu-
nity to make a defense. (People vs. G.R. No. 89823 , June 19,
SCRA 368, 387, citing earlier cases; People vs. G.R.
No. 77087, May 23 , SCRA 334, 351 , citing earlier cases)
Treachery attended the shooting of the deceased. The attack
was sudden, unexpected, without warning, and without giving the
victim an opportunity to defend himself or repel the aggression, as, in
fact, the deceased did not sense any danger that he would be shot by
the assailant as there was no grudge or misunderstanding between
them. (People vs. Rey, G.R. No. 80089, April SCRA 149,
158)

Rules regarding treachery.

Applicable only to crimes against the person.

This is based on the phrase against the

420
in the definition of treachery.

421
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

(2) Means, methods or forms need not insure accomplishment

of crime.

It is not necessary that the means, methods or forms

employed in the execution of the crime insure its accom-
plishment, as the law says, insure its only.
(3) The mode of attack must be consciously adopted.
This is based on the phrase "employing meth-
ods, or forms in the execution which tend directly and
in the definition of treachery.

Applicable only to crimes against persons.

This circumstance is applicable only to crimes against per-
sons.

It is not necessary that the mode of attack insures the con-

summation of offense.
The treacherous character of the means employed in the ag-
gression does not depend upon the result thereof but upon the means
itself, in connection with the aggressor's purpose in employing it.
Otherwise, there would be no attempted or frustrated murder quali-
fied by treachery. For this reason, the law does not require that the
treacherous means insure the execution of the aggression, without
risk to the person of the aggressor arising from the defense which
the offended party might make, it being sufficient that it tends to this
end. (People vs. Parana, 64 331 , 336)

So it has been held that where the accused attacked the offended
party unexpectedly and the wounds inflicted by him upon the latter
would have caused death had not the weapon whereby the same were
inflicted met with an obstacle, such as the ribs, which prevented
its penetrating the lungs and kidneys, alevosia is present and the
defendant is guilty frustrated murder. (People vs. Reyes, 47 Phil.
635, 639)
Also, where one assaulted another from behind, but failed to
kill the latter because the wound inflicted was not sufficient to cause
the attack was characterized by treachery even if the offender
did not attain his end.

422
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

The above illustrations are examples frustrated murder and

attempted murder, respectively, characterized by treachery. Treachery
was considered, even if the offense was not consummated.

Treachery cannot be presumed.

The suddenness of attack does not, of itself, suffice to support
a finding of alevosia, even if the purpose was to kill, so long as the
decision was made all of a sudden and the victim's helpless position
was accidental. The qualifying circumstance of treachery may not be
simply deduced from presumption as it is necessary that the existence
of this qualifying or aggravating circumstance should be proven as
fully as the crime itself in order to aggravate the liability or penalty
incurred by the culprit. (People vs. No. Jan. 23,
1974, 55 SCRA 245, 258; People vs. Narit, G.R. No. 77087, May 23 ,
1991, 197 SCRA 334, 351; People vs. Tiozon, G.R. No. 89823 , June
SCRA 368, 387-388; People vs. Lubreo, G.R. No. 74146,
Aug. 2, 1991, 200 SCRA 11, 28)

Where no particulars are known as to the manner in which the

aggression was made or how the act which resulted in the death of
the deceased began and developed, it can in no way be established
from mere suppositions that the accused perpetrated the killing
with treachery. The wound in the back might have been the last one
inflicted or might have been inflicted by accident in the course of the
fight. (U.S. vs. Perdon, 4 Phil. 141, 143-144; U.S. vs. 34
Phil. 786, 792-793)

Illustrations:
1. There is no treachery under these circumstances: the as-
sailant was alone while his victim had four (4) companions
nearby who could respond instinctively upon seeing their
injured companion; an altercation preceded the attack;
and the meeting of the victim and the assailant was only
accidental. (People vs. Velaga, Jr., G.R. No. 87202, July
23 , 1991, 199 SCRA 518, 523)

2. . Neither is treachery attendant where no witness

who could have seen how the deceased was shot was
presented. (People vs. Tiozon, supra, at 389)
3. Nor is treachery present in these circumstances: the wit-
ness to the attack did not see how it all began and could

423
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

not provide the details on how the initial attack was com-
menced and how it developed until the victim fell to the
ground at which time he saw the fallen victim being beaten;
the autopsy report shows no back injury; and the attack
was made in broad daylight, on a public road and in an
inhabited area, with the use of a wooden club, all indicative
of a casual and not a planned encounter. (People vs. Narit,
supra, at 351-352)

4. Neither is the circumstance attendant where the attack

was frontal, indicating that the victim was not totally
without opportunity to defend himself, and all surround-
ing circumstances indicate that the attack was the result
of a rash and impetuous impulse of the moment rather
than from a deliberate act of the will. (People vs. Tugbo,
Jr., G.R. No. 75894 , April 22 , 1991 , 196 SCRA 133,
138-
139)

Exceptions:
1. When the victim was tied elbow to elbow, his body with
many wounds and his head cut off, treachery may be
considered, though no witnesses saw the killing. (U.S. vs.
Santos, 1 Phil. 222, 224-225)
2. The killing of a child is murder qualified by treachery, even
if the manner of attack was not shown. (People vs. Laggui,
C.A., 34 O.G. 1708)
3. The Supreme Court in People vs. Retubado, No.
162 SCRA 276, 286: Treachery must be appreciated in the
killing of a child even if the manner of attack is not
It exists in the commission of the crime when an adult
person illegally attacks a child of tender years and causes
his death. (Citing People vs. Valerio, Jr., Feb. 25,
1982, 112 SCRA 231)

The mode of attack must be consciously adopted.

This means that:
(1) The accused must make some preparation to kill the
deceased in such a manner as to insure the execution of
the crime or to make it impossible or hard for the person
424
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

attacked to defend himself or retaliate (People vs. Tumaob,

83 Phil. 738, 742; People vs. Saez, No. March 29,
1961, 1 SCRA 937, 944; People vs. Iligan, G.R. No. 75369,
Nov. 26, 1990, 191 SCRA 643, 653); or
(2) The mode of attack must be thought of by the offender,
and must not spring from the unexpected turn of events.
(People vs. Dauz, C.A., 40 Sup. The mode of
attack could not have been thought of when the decision
to shoot the deceased was sudden, in view of the latter's
flight, and the relative positions of the victim and the killer
were entirely accidental. (People vs. Abalos, 84 Phil. 771,
773)

In the following cases, it was held that there was treachery:

1) The act of shooting the victim at a distance, without the
least expectation on his part that he would be assaulted,
is characterized by treachery. The assailant deliberately
employed a mode of execution which tended directly and
specially to insure the consummation of the killing without
any risk to himself arising from the defense which the vic-
tim could have made. (People vs. Nos.
Jan. 21 , 1974, 55 SCRA 153, 175)
2) The killings were attended with the aggravating circum-
stance of treachery because the accused made a deliberate,
surprise attack on the victims. They perpetrated the kill-
ings in such a manner that there was no risk to themselves
arising from any defense which the victims might have
made. (People vs. Mori, Nos. Jan. 31 , 1974,
55 SCRA 382, 403-404)
The circumstances surrounding the killing of the deceased
show treachery. His hands were raised and he was pleading
for mercy with one of the assailants when another struck
him on the neck with a bolo. The role of the third assail-
ant of weakening the defense, by disabling the son of the
deceased, was part and parcel of the means of execution
deliberately resorted to by the assailants to insure the as-
sassination of the deceased without any risk to themselves.
(People vs. Ricohermoso, Nos. L-30527-28, March
56 SCRA

425
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery
Par. 16

4) The assailant, in strategically placing himself in a forested

area near the highway and firing at the unsuspecting victim
at a distance of eight meters, employed a mode of execution
that insured the consummation of the killing without any
risk arising from any defense that the victim could have
made. (People vs. Zapatero, No. Aug. 15, 1974,
58 SCRA 450, 459)

5) In a sense, there was treachery because the victim, a

woman, was first reduced to helplessness before she was
shot. (People vs. Clementer, No. L-33490, Aug. 30, 1974,
58 SCRA 742, 749)

6) The victim was shot while he was gathering tuba on top

of a coconut tree. He was unarmed and defenseless. He
was not expecting to be assaulted. He did not give any
immediate provocation. The deliberate, surprise attack
shows that Sangalang and his companions employed a
mode of execution which insured the killing without any
risk to them arising from any defense which the victim
could have made. (People vs. Sangalang, No. Aug.
30, 1974, 58 SCRA 737, 741)

7) It was treacherous to shoot Cayago at night, while he

was urinating on the porch and when he did not expect
at all that his enemy, Manangan, was only four meters
away aiming a carbine at him. It was an ambuscade.
Manangan resorted to a mode of execution that insured the
consummation of the killing without risk to himself arising
from any defense which the victim could have made. (People
vs. Manangan, No. L-32733, Sept. 11, 1974, 59 SCRA 31,
37)
8) There is treachery where the victim was tied and gagged
before being stabbed. Undisputed facts show that Henry
Chua's hands were tied and his mouth was gagged with a
flannel cloth before he was stabbed twice with an icepick
and buried in a shallow grave near a creek. These facts
portray well that the tied hands of the victim rendered him
defenseless and helpless thereby allowing the accused to
commit the crime without risk at all to their person. (People
vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174, 211)

425
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

9) There was treachery because the five accused suddenly

intercepted the victim while he was on his way to the house
of his cousin. The appellants resorted to a mode of attack
which insured the consummation of the crime without any
risk to themselves. The victim was unarmed and he had
no time to defend himself in view of the suddenness of the
assault and the fact that he was drunk at the time. (People
vs. Pajenado, No. L-26458, Jan. 30, 1976, 69 SCRA 172,
179-180)

10) The attack on the victim was deliberate, sudden and

unexpected and from behind. Most of the wounds sustained
by the victim and which were fatal were found on his back.
All of these are indicative of the fact that the accused
employed means and methods which tended directly and
especially to insure the execution of the offense without
risk to the offenders arising from the defense which the
offended party might have made. (People vs. Palencia, No.
April 71 SCRA 679, 689)

The victim was clearly not in a position to defend himself

at the time of the attack. He was then on top of a coconut
tree. His assailant was on the ground aiming and firing at
him much as if he were a sitting duck. There was, in other
words, the employment of means or methods or manner
of execution which insured the attacker's safety from any
defensive or retaliatory act on the part of the victim, who
was perched on top of the coconut tree quite helpless.
(People vs. G.R. No. 88098, June 26, 1991, 198
SCRA 529, 540)
12) Treachery was correctly appreciated. The accused, armed
with a gun, riding tandem on a motorcycle, suddenly
and without warning shot the victim in the back as the
motorcycle sped by. The victim was then walking along
a road, unsusp ecti ng and unarmed. The motorcycle then
turned back to where the victim lay wounded, and the
accused fired at him once more, again hitting him in the
back. The victim had no effective opportunity to defend
himself and to strike back at the assassin. (People vs.
Clamor, G.R. No. 82708 , July 1, 1991 , 198 SCRA 642 ,
654- 655 )

426
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

13) Treachery is attendant. The accused, after having made

two steps behind the victim, suddenly and unexpectedly,
with the use of a bolo, hacked the deceased at his back
causing a deep wound and fracture of the 5th rib. When
the victim faced the accused, he was again hacked at the
forehead. (People vs. Lubreo, G.R. No. 74146, Aug.
200 SCRA 11 , 29)

14) The deceased was stabbed without warning. So sudden and

unanticipated was the attack that the victim was given
no chance to defend himself. Then the accused, although
apparently acting without prior agreement, also instantly
and all together attacked him. Even if their aforesaid
acts were independently performed on their individual
initiatives, such concerted action ensured the commission of
the crime without risk to them arising from any defense or
retaliation that the victim might have resorted to. Treachery
was correctly appreciated against all the accused. (People
vs. Lacao, Sr., G.R. No. 95320, Sept. 317,
330)

When treachery is not present.

1) There was no treachery. The attack was perpetrated in a
frontal encounter, shown by the location of the wounds on
the front part of the victim's body. There were no wounds on
the back. The assailants did not make any deliberate, sur-
prise attack on the victim. They did not consciously adopt
a treacherous mode of attack. The attack was preceded by
an altercation and on the spur of the moment. (People vs.
Jr., No. March 28, 1974, 56 SCRA 210,
217)

2) The trial court correctly held that there was no treachery.

The initial assault on the victim was not made in a sud-
den and unexpected manner. The malefactors gave him an
ominous warning of their presence and heralded their en-
trance into his house by firing two gunshots at the
They first mauled him presumably in a frontal encounter.
(People vs. Manzano, Nos. L-33643-44, July 31, 1974, 58
SCRA 250, 260)

427
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

The accused and his companions did not camouflage their

hostile intentions. They announced their presence at the
scene of the crime with shouts and gunshots. That mode of
attack negated the existence of treachery since the element
of surprise, which marks the presence of treachery, was
absent. (People vs. Cunanan, No. Jan. 20, 1977,
75 SCRA 15, 23)

When treachery cannot be considered.

Treachery cannot be appreciated where there is nothing in
the record to show that the accused had pondered upon the mode or
method to insure the killing of the deceased or remove or diminish any
risk to himself that might arise from the defense that the deceased
might make, as when his decision to shoot the victim is sudden,
brought about by a stinging provocation from the latter. (People vs.
Macaso, No. L-30489, June 64 SCRA 659, 666-667)

In the following cases, it was held that there was treachery:

"Inasmuch as Refuerzo was unarmed and utterly defenseless,
he tried to escape through the window. Quirino Ramolete shot him
in that situation. Refuerzo fell into the batalan with three serious
gunshot wounds of entry on his back. Treachery (alevosia) was
manifest in that manner of assault because it insured the killing
without any risk to the (People vs. Ramolete, et 56
SCRA 66)
"When the victim saw appellant hacking her sister, she ran out of
the house and cried for help. Appellant chased her and, upon overtak-
ing her, struck her on the head." (People vs. Cruz, 109 Phil. 288)

Note: Did the accused consciously adopt that method of shoot-

ing the deceased as the latter "tried to escape through
the window" and of striking the victim on the head while
chasing her? It happened so suddenly that he could not
have thought of that manner of assault.

When there is no evidence that the accused had, prior to the mo-
ment of the killing, resolved to commit the crime, or there is no proof
that the death of the victim was the result of meditation, calculation
or reflection, treachery cannot be considered. (U.S. vs. Balagtas, 19
Phil. 164)

428
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery
Par. 16

If the decision to kill was sudden, there is no treachery, even

if the position of the victim was vulnerable, because it was not
deliberately sought by the accused, but was purely accidental. (People
vs. Cadag, et G.R. No. May 31 , 1961)
The reason for those rulings is that the law itself says: "There
is treachery when the culprit employed means, methods or forms of
execution which tend directly and specially to insure the execution
of the crime, without risk to himself." Hence, the mere fact that the
attack was sudden and unexpected does not show treachery, unless
there is evidence that such form of attack was purposely adopted by
the accused. There must be evidence showing that the accused re-
flected on the means, methods and forms of killing the victim. (People
vs. supra)

The characteristic and unmistakable manifestation of treachery

is the deliberate, sudden and unexpected attack of the victim from
behind, without any warning and without giving him an opportunity
to defend himself or repel the initial assault.
But mere suddenness of the attack is not enough to constitute
treachery. Such method or form of attack must be deliberately chosen
by the accused. (People vs. Macalisang, G.R. No. L-24546, February
22 SCRA 699, 704)
To sustain a finding of treachery, the means, method or form
of attack must be shown to have been deliberately adopted by the
appellant. (People vs. Caldito, G.R. Nos. 78432-33, Feb.
SCRA 66, 77, citing People vs. Manalo, 148 SCRA 98, 108)

That the mode of attack was consciously adopted may be inferred from
the circumstances.
The aggravating circumstance of treachery is established where
the evidence showed that one of the accused approached the victim
from behind, encircling his arm in a tight grip around the victim's
neck while his co-accused held the victim's two hands, and as the
victim was thus rendered helpless and unable to defend himself, both
the former and a third co-accused stabbed the victim with the scissor
blades, inflicting upon the victim at least four serious stab wounds,
any one of which could have caused his death. (People vs. Lunar, No.
May 29, 1972, 45 SCRA 119, 140)
Treachery attended the killing where the assailants hid behind
a pile of logs under cover of darkness and the victim was approached
429
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

from behind and shot as he turned around. (People vs. Jaravata, No.
August 1967, 20 SCRA 1014, 1020)
By their acts of showering the house with bullets, executed in the
darkness of the night, the offenders employed means, methods and
forms in the execution of the crime which tended directly to insure
the execution of their criminal design without risk to themselves
arising from the defense which the occupants of the house might
make. (People vs. Elizaga, No. L-23202, April SCRA 449,
463)
If the accused was well hidden behind a tree when he shot the
victim who, unarmed and unaware, had no way of defending him-
self, the accused deliberately employed means, methods or forms to
insure the execution of the crime, without risk to himself. (People
vs. Guevarra, G.R. No. April 16, 1968, 23 SCRA 58, 72)
In the case of People vs. G.R. No. Nov. 22 ,
1966, 18 SCRA 699, 700, 701-702, the defendant also hid behind a
tree and shot at the victim while the latter was running away and
was thus without means of defending himself, but treachery was not
appreciated because the defendant did not purposely take advantage
of the circumstance to kill the victim without risk to himself. He did
so because he was scared, believing that the deceased was armed
with a gun.
Treachery attended. Three men, armed with a knife, crept up
in the dark against a defenseless and unsuspecting victim who was
answering a call of nature. When two of them pinioned the victim's
arms so that their companion could stab him repeatedly and with
impunity, they thereby employed means which assured the execu-
tion of the crime without risk to themselves arising from the defense
that their victim might have made. (People vs. Hernandez, G.R. No.
90641 , Feb. 27, 1990, 182 SCRA 794, 799)
Treachery is present. The numerous stab wounds, some of which
were inflicted at the back of the victim, show that the attack was
sudden and brutal. The suddenness of the attack deprived the victim,
a woman, unarmed and alone, the opportunity to run or fight back.
The assailant, a strong young man, did not even suffer any injuries
except for the small wound on his finger inflicted by a bite. Obviously,
apart from using her teeth, the victim could not put up any defense.
(People vs. Badilla, G.R. No. 69317, May 21 , 1990, 185 SCRA 554,
570)

430
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

Where the meeting between the accused and the victim is cas-
ual and the attack impulsively done, there is no treachery.
Facts: Upon seeing the accused, the deceased started to run,
whereupon the accused whistled at him. As the deceased ignored the
call and continued to run away, the accused got off from his bicycle
and, from a distance of some fifty meters, fired a shot at the deceased
who was fatally hit. The meeting of the two persons was casual. The
accused fired at his victim impulsively, because the latter ignored the
call of the accused.
Held: Where the meeting between the accused and the victim
was casual and the attack was done impulsively, there is no treachery
even if the attack was sudden and unexpected and while the victim
was running away with his back towards the accused. (People vs.
Calinawan, 83 Phil. 647, 648)
The reason for this ruling is that the accused could not have
made preparation for the attack, the meeting between him and the
deceased being casual, and the means, method and form of attack
could not have been thought of by the accused, because the attack
was impulsively done.
In another case, the victim was sent to the store to buy some
beer. It, therefore, just so happened that he was sent on an errand
at that particular time to that particular place; otherwise, he would
have remained at home. Nobody knew beforehand that he would go to
the store. Not even the appellant nor his deceased brother could have
expected to meet the victim there at that specific moment. Nor could
appellant have foreseen that the victim would be carrying bottles of
beer at the moment that he would attack the latter. The meeting of
the victim and his assailants was casual. Treachery did not attend.
(People vs. Diaz, No. L-75433, Nov. 9, 1988, 167 SCRA 239, 246)
Alevosia cannot be appreciated. The manner in which the
aggression was made or how the act which resulted in the death of
the victim began and developed was not shown. It would appear,
too, that the accused had no opportunity to plan the way, method, or
means with which to execute the felony, as the meeting between the
accused and the deceased was accidental since there is no evidence
that the accused knew beforehand that the deceased would be passing
by the warehouse where they were working at that particular time.
(People vs. Bacho, G.R. No. 66645, March 29, 1989, 171 SCRA 458,

431
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

Another reason why treachery cannot be considered is that the

meeting of the victim and the accused was only accidental. (People
vs. Velaga, Jr., G.R. No. 87202, July 23, 1991, 199 SCRA 518, 523)

Attacks showing intention to eliminate risk.

(a) Victim asleep.
Treachery attends where the victim was stabbed
while he was asleep. (People vs. Caringal, G.R. No.
Aug. SCRA People vs. Nolasco, No.
L-55483, July 28, 1988, 163 SCRA 623, 629; People vs.
Trinidad, No. L-38930, June SCRA 714, 725;
People vs. Reunir, No. L-73605, Jan. 157 SCRA
People vs. Andres, No. L-75355, Oct.
SCRA 290, 300; People vs. Perante, Jr., Nos.
July 16, 1986, 143 SCRA 56, 60; People vs. Miranda, 90
Phil. 91 , 96; People vs. Dequina, 60 Phil. 279, 286)

(b) Victim half-awake or just awakened.

Treachery characteri zed the crime. Even i f the
deceased was already awake when the aggression com-
menced, and even if there was light, the victim was still
down on his back, still drowsy, and unarmed. He was una-
ware of the defendant's intention. The blows were delivered
all of a sudden and without warning. (People vs. Yadaon,
82 Phil. 160, 163)
Treachery attends where the victim had just awak-
ened when attacked, because he might still be dazed and
unprepared for the attack and would not be in a position
to offer any risk or danger of retaliation to the attacker.
(People vs. Perante, Jr., supra; People vs. Atencio, No. L-
22518 , Jan. 17, 1968, 22 SCRA 88, 102; People vs.
92 Phil. 805, 809)
(c) Victim grappling or being held.
Treachery is present where the assailant stabbed the
victim while the latter was grappling with another, thus
rendering him practically helpless and unable to put up
any defense. (People vs. Lingatong, G.R. No. 34019 , Jan.
29, 1990, 181 SCRA 424, 430)

432
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery
Par. 16

There is treachery where the victim was stabbed in

a defenseless situation, as when he was being held by the
others while he was being stabbed, as the accomplish-
ment of the accused's purpose was ensured without risk
to him from any defense the victim may offer. (People vs.
G.R. No. L-22426, May 29, 1968, 23 SCRA
910; People vs. Lunar, G.R. No. May 29, 1972,
45 SCRA 119) Here, the accused-appellant stabbed the
victim on the chest while his companions held both of the
victim's arms. (People vs. Montejo, No. L-68857, Nov. 21 ,
1988, 167 SCRA 506, 515)

Attacked from behind.

(1) With a firearm.
Treachery atten d ed the crime, the accused
shot the victim from behind without warn-
ing. (People vs. Acosta, G.R. No. 70153, July
People vs. G.R. No. 83903 , Aug. 30, 1990,
189 People vs. Jr., G.R. No.
75618 , Dec. 180 SCRA 723, 731)
Treachery qualified the crime because, although
the victim was forewarned of his impending death, he
was shot in the back while he was entirely defenseless
and the killers were under no risk whatsoever from
any retaliation the victim might make. (People vs.
G.R. No. 81404, Jan. 28, 1991, 193 SCRA
429, 435)
The shooting of Atty. was
treacherous. The accused suddenly and without
warning shot him when the latter turned his back
towards the accused and returned to his table to eat.
Atty. Maramba was fatally hit on the back of his
head and fell to the cement floor. Atty. Maramba did
not sense any danger that he would be shot by the
accused considering that he and the accused knew
each other personally and that there was no previous
grudge or misunderstanding between them. (People
vs. LAC, Nos. Jan. 10, 1987, 147 SCRA
219, 230)

433
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

(2) With a weapon.

There was treachery, as the stabbing was from

behind, done in a sudden and unexpected manner
while the deceased was sitting and his head down on
his hands. (People vs. Delgado, G.R. No. 79672, Feb.
15, 1990, 182 SCRA 343, 351)
Treachery was duly and sufficiently proven. The
victim was suddenly and without warning stabbed
at the back of his nape by the assailant from behind
with a double-bladed knife. (People vs. Melgar, No.
L-75268, Jan. 29, 1988, 157 SCRA 718, 727)
(3) Other modes of armed attack.

Treachery in the commission of the crime was

correctly appreciated. The victim was suddenl y
stabbed by the a ss ai l an t without any warn i n g.
Although he was armed with a gun, he was never
given an opportunity to ward off the assault due to
its suddenness. (People vs. De Mesa, G.R. No. 87216,
July 28, 1990, 188 SCRA 48, 55)

Treachery attend ed where several accused

took turns in stabbing the victim who was caught
by surprise and did not have time to defend himself.
(People vs. Dollantes, No. L-70639, June 30, 1987,
151 SCRA 592, 607)
There was treachery because at the time of the
attack, the victim was not in a position to defend
himself. After having been maltreated, then stabbed,
and while in flight, he was chased as though he was
a wounded quarry and in that defenseless state was
shot from behind by the assailant. (People vs.
No. L-66965, June 18, 1987, 151 SCRA 113, 139)
There was treachery in the commission of the
crime where the victim was shot to death while he
was lying face down on the floor, without any warning
and thus was not able to defend himself at all. (People
vs. Pecato, No. June SCRA 14,
28)
434
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

Two policemen reacted to assert their authority

in p r o t e c t i n g and coveri n g c i v i l i a n s from the
indiscriminate firing by the accused. Accused instead,
suddenly and without warning, successively shot
them, knowing fully well that they were peace officers.
Although both were armed with their service guns,
they were unable to offer resistance and put up a
defense due to the suddenness and close succession
of the shots. Treachery attended the commission of
the crimes. (People vs. Nos. Jan. 10,
1987, 147 SCRA 219, 230)

Attacking the victim suddenly and with a

arm. (People vs. Rendora, G.R. No. Sept. 30,
1959)
Calling the victim to come down from the house
and subjecting him to a volley of shots, causing his
death. (People vs. Mukung, G.R. No. March
22, 1950)
Shooting unsuspecting victim who was hit in the
abdomen while he was wheeling around to face the
assailant. (People vs. Noble, 77 Phil. 93)
In all the above cases, the offenders attacked
the victims while the latter were not in a position to
make a defense.
From the ci rc u m st an ce s of said cases, the
Supreme Court believed that the offenders purposely
adopted certain means, methods or forms of attack
to insure the execution of the crime without risk to
themselves.

Requisites of treachery:
That at the time of the attack, the victim was not in a posi-
tion to defend himself; and
(2) That the offender consciously adopted the particular means,
method or form of attack employed by him.
To constitute treachery, two conditions must be present, to
wit: the employment of means of execution that gave the person
435
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

attacked no opportunity to defend himself or to retaliate; and (2) the

means of execution were deliberately or consciously adopted. (People
vs. Mabuhay, G.R. No. 87018, May 24, 1990, 185 SCRA 675, 680)
In order for treachery to exist, two conditions must concur,
namely: (1) the employment of means, methods or manner of execu-
tion which would insure the offender's safety from any defense or
retaliatory act on the part of the offended party; and (2) such means,
method or manner of execution was deliberately or consciously chosen
by the offender. (People vs. Sabado, No. L-76952, Dec. 22, 1988, 168
SCRA 681, 690; People vs. Rellon, No. Nov. 8, 1988, 167
SCRA 75, 77-78; People vs. Marciales, No. Oct. 18, 1988,
166 SCRA People vs. Estillore, No. L-68459, March
141 SCRA 456, 460)

The victim was not in a position to defend himself.

Treachery is properly appreciated when the victims were made to
lie face down, their hands tied at the back before they were killed (People
vs. No. Dec. or the
victim was from behind while dancing (People vs. Berzuela, G.R. No.
132078, Sept. 25, 2000), or when the victim was shot while blindfolded
(People vs. G.R. No. 130506, Feb. 28. 2002).
Treachery attended the killing. The victim was totally defense-
less. He was caught by surprise whe n the assai lan ts, whom he
considered his friends, suddenly attacked him. Without warning, he
was hit in the head, then stabbed in the back. Thus disabled, he was
stabbed in the chest. And even as he ran for his life, he was pursued
and stabbed some more when he stumbled. He never had a chance
to save his life. (People vs. Espinosa, G.R. No. 72883, Dec. 20, 1989,
180 SCRA 393 , 400)
The violent death of the victim was accompanied by treachery
where, although there were no eyewitnesses to the actual assault, he
was apparently beaten to death while his hands and feet were tied
with a rope. (People vs. Gapasin, No. Oct. 27, 1986, 145
SCRA 178, 194)
Treachery was also present where the assailants made a de-
liberate, sudden and surprise attack from behind while the victim
sat defenseless in the driver's seat of his jeep. When he stopped his
jeep, one of the assailants placed a piece of wire around his neck and

436
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

strangled him while the other held him. At that precise moment of
the attack, the victim was not in a position to defend himself and the
accused deliberately and consciously adopted the particular method
or form of attack which was strangulation from behind by one and
holding him by the other beside him. (People vs. Masilang, No.
64699 , July 1986, 142 SCRA 673 , 682)

There is treachery when the offenders made a deliberate surprise or

unexpected attack on the victim.

There was treachery because the brothers made a deliberate

surprise or unexpected assault on Tadia. They literally ambushed
him. They waited for him on the cliff, a high ground which rendered
it difficult for him to flee or maneuver in his defense. Tadia was shot
while he was ascending the hill or cliff burdened by his food
basket. (People vs. Diaz, No. L-24002, Jan. 21 , 1974, 55 SCRA 178,
186)
The accused waited patiently and deliberately at the farmhouse
of the deceased, met her on the road when he saw her coming riding
on a sled, waited by the roadside until the victim passed by and then,
without warning and without giving the victim a chance to escape,
made a sudden and unexpected attack. The unarmed, fifty-six-year-
old woman was absolutely helpless and unable to defend herself from
the overpowering strength of the accused when he stabbed her twice
with a combat bolo. The victim had no opportunity to defend herself
or repel the initial assault. (People vs. Bayocot, G.R. No. 55285, June
28, 1989, 174 SCRA 285, 293)

There is treachery where everyone of the three victims was

completely helpless and defenseless when shot and killed by the
accused with no risk to themselves. The first was completely taken
by surprise when he was shot in the face. The second was lying down
when he was shot in the The third was seated when he was shot
in the head and shoulders. None of the three victims had a chance
to resist. (People vs. G.R. Nos. 38969-70, Feb. 9, 1989, 170
SCRA 107, 120)
Treachery was attendant where the victim was stabbed suddenly
and he was totally unprepared for the unexpected attack as he was
dancing at the precise time of the incident. He was given absolutely
no chance to defend himself. (People vs. Acaya, No. L-72998, July 29,
SCRA 768, 773)

437
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

There was alevosia where the unarmed and unsuspecting victim

was ambushed in the dark, without any risk to his assailants. (People
vs. Egaras, No. L-33357, July 29, 1988, 163 SCRA 692, 696, citing
earlier cases)
The victim was bringing food items for a noche buena when he
was suddenly attacked by two assailants, one armed with a spear
and the other with a bolo. The attack was so sudden that the victim
had no opportunity to defend himself or to inflict retaliatory blows
on the assailants. He just fell down after the spearing and was then
hacked with the bolo. The killing was characterized by treachery.
(People vs. Bravante, No. L-73804, May 29, 1987, 150 SCRA 569,
576)

There is no treachery when the victim was already defending himself

when he was attacked by the accused.
Where the deceased was suddenly attacked, but he was able to
retreat to avoid being hit by the hacking blows and was hit only when
he was already in the act of defending himself against the attack of
the accused, there is no treachery. (People vs. Diva, No. L-22946,
April 29, 1968, 23 SCRA 332, 340)
Likewise, treachery is not present where the accused and the
victim grappled with each other. (People vs. Butler, No. L-50276, Jan.
27, 1983, 120 SCRA 281 , 306)

Does the fact that advantage was taken of relative confusion, so that
the act and identity of the offender would not be detected, and so that
his escape would be facilitated adequately establish treachery?
The Solicitor General in his brief recommends that defendant
be found guilty only of homicide, stating that, in his view, treachery
is not borne out by the evidence. Our consideration, however, of the
facts shown in the record, particularly Rolando Banhao's testimony,
convinces us that treachery has been adequately established. As
counted by said witness, defendant stabbed the deceased at the time
when, on account of the shower, people were going out of the dance
hall to seek for cover. Advantage was therefore taken by defendant
of the relative confusion created by the shower on the crowd, so that
his act and identity would not be detected by the people in the dance
hall, and so that his escape would be facilitated. (People vs.
G.R. No. L-28596, February 21 , 1968, 22 SCRA 657, 660-661)

438
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

The reason for the ruling is not in accordance with the second
requisite of treachery, and is completely alien to the definition of the
aggravating circumstance.

Treachery does not connote the element of surprise alone.

Counsel contends that since the deceased had been threatened
since the day before the shooting, he was not caught by surprise at
all. But treachery does not connote the element of surprise alone,
but exists when the offender employs means which tend directly and
specially to insure the execution of the offense, without risk to himself
arising from the defense which the offended party might make. (Art.
14, par. 16, Revised Penal Code) When appellant accosted his victim,
who could have had no idea as to just how the threat to him would be
carried out, and without warning, shot him five times, nothing could
possibly have been done by the latter in his own defense. (People vs.
No. July 26, 1966, 17 SCRA 717, 720)

The appellant followed the serenaders as they walked, made no

indication that he would shoot, and then suddenly fired from behind,
two shots in rapid succession from a distance of about five meters.
Under the circumstances, clearly there was treachery. (People vs.
Pantoja, No. October 11, 1968, 26 SCRA 468, 471)

Mere sudden and unexpected attack does not necessarily

give rise to treachery.
It does not always follow that because the attack is sudden and
unexpected it is tainted with treachery. Indeed, it could have been
done on impulse, as a reaction to an actual or imagined provocation
offered by the victim. (People vs. Sabanal, G.R. Nos. 73486-87, April
18, 1989, 172 SCRA 430, 434 , People vs. Malazzab, 160 SCRA
123; People vs. 158 SCRA 701; People vs. Macaso, 64 SCRA
659; People vs. 55 SCRA 245; People vs. 22 SCRA
699; and People vs. 83 Phil. 738)

When the accused gave the deceased a chance to prepare,

there was no treachery.
When the accused challenged the deceased to a before
the shooting, the attack was not treacherous even if the shooting
was sudden and the deceased was not prepared because it gave the
439
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

deceased a chance to prepare for the impending attack. (People vs.

Visagar, 93 Phil. 319, 326-327)

No treachery where the attack is preceded by a warning.

And when the attack was frank, made face to face, and the
accused first asked did you say?" before starting the aggression,
there is no treachery because that question was already a warning to
the offended party of the hostile attitude of the accused. (People vs.
Luna, 76 Phil. 101, 104)

Calling attention of victim not necessarily a warning.

Treachery in the commission of the crime is clearly established
in this case: the assailant fired two successive shots at the defenseless
victim, a fiscal, while the latter was still seated in his jeep, hitting
him at the neck and lumbar region. The fact that the assailant
called out, "Fiscal" before shooting the victim does not negate the
presence of treachery. The assailant being a hired killer, he wanted
to insure that he was shooting the correct person. When the victim
turned his face to find out who was calling him, the assailants fired
immediately, rendering no opportunity for the victim to defend
himself. (People vs. No. L-68699, Sept. 22 , 1986, 144
210, 217-218)

No treachery where shooting is preceded by heated discus-

sion.
Facts: After a brief exchange of strong language, the accused
pulled his revolver and fired at the deceased three times successively,
while the latter was absolutely defenseless, as he had no weapon of
any kind whatsoever in his hands at that time.
Held: Since the shooting was preceded by a heated discussion
between the two, it must have placed the deceased on his guard,
and the alleged treachery cannot be legally considered. (People vs.
Gonzales, 76 Phil. 473 , 479)
There is no treachery where the commission of the crime was
preceded shortly before by a boxing incident and the victim and his
companions had all the opportunity to insure their safety, immediately
before the attack of the defendants. (People vs. Gupo, G.R. No. 75814,
Sept. 24, 1990, 190 SCRA 7, 19)

440
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

There is no treachery where the assault upon the deceased

was preceded by a heated exchange of words between the accused
and the deceased. It cannot be said that the deceased was caught
completely by surprise when the accused took up arms against him.
(People vs. G.R. No. Dec. 15, 1989, 180 SCRA 102,
107)

Where the victim had provoked the assailant by hitting not only
him, but also his wife, he should have been sufficiently
that reprisal might be in the offing. The element of a sudden unpro-
voked attack indicative of treachery is therefore lacking. (People vs.
Manlapaz, No. L-27259, Feb. 27, 1974, 55 SCRA 598, 604)

Killing unarmed victim whose hands are upraised is committed with

treachery.
The accused pointed his rifle at the victim at a distance of six
meters and said, "Pardong, stand up, we are going to shoot you." The
victim had his hands upraised, pleading in a loud voice, "Do not kill
me, investigate first what was my fault." The accused shot the victim,
mortally wounding him.
Held: The killing was committed with treachery. (People vs.
G.R. No. Sept. 30, 1955)
Where the victim was shot when his hands were raised, to
show that he would not fight, or because of fright, or to try to ward off
the shots that were to come, he was clearly in a defenseless position.
This circumstance constitutes treachery. (People vs. Castro, G.R. Nos.
and June 20 SCRA 543, 547)
Treachery was present in this case. The victim was unarmed
and had raised his hands crying and pleading for his life when he was
shot by the assailants. Obviously, the stand taken by the victim posed
no risk to the assailants. (People vs. Jutie, G.R. No. 72975, March
31 , 1989, 171 SCRA 586, 595, People vs.
March 28, 1980, 96 SCRA 573; People vs. Lasatin, February
11, 1953, 92 Phil. 668)

Killing a woman asking for mercy is committed with treachery.

The accused shot Mrs. Howell while she was pleading for her
daughters: na kayo. Huwag po."

441
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

Held: The killing was committed with treachery. (People vs.

G.R. No. June Phil. 682, 684, 693)

There is treachery in killing a child.

Killing a child is characterized by because the weak-
ness of the victim due to his tender age results in the absence of any
danger to the accused. (U.S. vs. Oro, 19 Phil. 548, 554)
The killing of a one-year-old child, a six-year-old child, and
a twelve-year-old child is attended with treachery. The killing is
murder even if the manner of attack was not shown. The qualifying
circumstance of treachery exists in the commission of the crime of
murder when an adult person illegally attacks a child of tender years
and causes his death. (People vs. Retubado, G.R. No. 58585, June 20,
1988, 162 SCRA 276; People vs. Valerio, G.R. No. February
25, 1982, SCRA 208; U.S. vs. Lansangan, 27 Phil. 474; U.S. vs.
39 Phil. 846; People vs. Ganohon, G.R. Nos. 74670-74, April 30,
1991, 196 SCRA 431 , 446)

Intent to kill is not necessary in murder with treachery.

Thus, one who struck another with the fist from behind, the blow
landing on the back part of the head, causing the latter to fall back-
wards, his head striking the asphalt pavement which caused death
resulting from a fracture of the skull, is guilty of murder although he
did not intend to kill the deceased. The Supreme Court of Spain has
held that there is no incompatibility, moral or legal, between alevosia
and the mitigating circumstance of not having intended to cause so
great an injury. (People vs. Cagoco, 58 Phil. 524, 530)
But intent to kill is necessary in murder committed by means
of fire. (U.S. vs. Burns, 41 Phil. 418, 432-433)

Treachery may exist even if the attack is face to face.

It is not necessary for treachery to be present that the attack
must come from behind the victim.
Treachery should be taken into account even if the deceased was
face to face with his assailant at the time the blow was delivered,
where it appears that the attack was not preceded by a dispute and
the offended party was unable to prepare for his defense. (U.S.
vs. 28 Phil. 457, 461)

442
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

The attack was sudden and unexpected to the point of incapaci-

tating George Ott to repel or escape from it. The offender adopted
a method which tended directly and especially to insure the accom-
plishment of his purpose without risk to himself arising from any
defense which the offended party might make. True, the victim and
the accused were face to face when the attack commenced, the first
shot, according to all indications, having hit the victim in the abdo-
men. But it is also true that he had just wheeled around to see who
had spoken to him when the defendant opened fire. (People vs. Noble,
77 Phil. 93)

Treachery is present although the shooting was frontal, as

when the attack was so sudden and unexpected that the victim was
not in a position to offer an effective defense. Thus, where the victim
approached the driver of a pickup and, as he approached the pickup,
the victim was met with gunfire which was followed by two more suc-
cessive shots, there was treachery. (People vs. Cuadra, No. L-27973,
Oct. 23 , 1978, 85 SCRA 576, 595)

Treachery attended where the victim was completely taken by

surprise and shot, where he was seated peacefully eating with his
family. That he was shot face to face did not make the attack any less
treacherous as he was totally taken aback and rendered completely
defenseless when he was shot. (People vs. Liston, G.R. No. 63396,
Nov. 15, 1989, 179 SCRA 415, 421)
Treachery attends although the attack is frontal where the
victim was completely helpless, as when both his hands were held by
the attackers numbering five ganging up on him. (People vs.
G.R. No. 82363 , May 5, 1989, 173 SCRA 203, 208)
Where before the victim was stabbed and hit several times with
hollow blocks on the head, his arms were twisted, rendering him help-
less to defend himself or repel the initial assault, the mode of attack
was deliberately and consciously resorted to insure the commission
of the crime without risk to the assailants arising from the defense
that the victim might put up. (People vs. Paras, No. Jan.
31, 1987, 147 SCRA 594, 610)

Flashing the beam of a flashlight on the face of victim.

Where immediately prior to the stabbing, the accused flashed the
beam of his flashlight on the face of his victim, momentarily blinding

443
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

the latter, the attack, though frontal, was sudden and perpetrated
in a manner tending directly to insure its execution, free from any
danger that the victim might defend himself. (People vs. Pongol, C.A.,
66 O.G. 5617)

Treachery must be proved by clear and convincing evidence.

Treachery is not to be presumed or taken for granted from the
mere statement of a witness that "the attack was There must
be a clear showing from the narration of facts why the attack or assault
is said to be "sudden." The reason for this is that treachery, like any
element of the crime, must be proved by clear and convincing evidence.
(People vs. Santos, No. Oct. 85 SCRA 630, 639)
Treachery cannot be presumed; it must be proved by clear and
convincing or as conclusively as the killing, if such be the
crime, itself. (People vs. Tiozon, G.R. No. 89823 , June 19, 1991, 198
SCRA 368, 387-388, citing earlier cases)

Attack from behind is not always alevosia.

The mere fact that the attack was inflicted when the victim had
his back turned will not in itself constitute alevosia. It must appear
that such mode of attack was consciously adopted and the question
of risk to the offender must be taken into account. (People vs. Baldos,
C.A., 34 O.G. 1937)
The fact that the fatal wounds were found at the back of the
deceased does not, by itself, compel a finding of treachery. Such a
finding must be based on some positive proof and not merely by an
inference drawn more or less logically from hypothetical facts. The
facts preceding the actual shooting must be in evidence. (People vs.
G.R. No. 69184 , March 26, SCRA 658, 668)
The mere fact that the victim had a stab wound at the back is
not indicative of alevosia, where the deceased had sustained two (2)
other stab wounds at the front, and the evidence clearly shows that
the stab wound at the back was the last to be inflicted. (People vs.
Bacho, G.R. No. 66645, March 29, 1989, 171 SCRA 458, 466)
The fact that the injuries of the victim were inflicted from be-
hind as the latter was running away does not necessarily establish
treachery where it does not appear that the assailant purposely
chose to employ such means of attack so that there would be no risk
444
 AGGRAVATING CIRCUMSTANCES
Art. 14
Treachery
Par. 16

to himself from any defense which the offended party might make.
(People vs. Besana, Jr., No. May 64 SCRA 84, 88,
citing People vs. 83 Phil. 742)

Must treachery be present in the beginning of the assault?

It depends upon the circumstances of the case.
It must be shown that the treacherous acts were present and
preceded the commencement of the attack which caused the injury
complained of. (U.S. vs. Balagtas, 19 Phil. 164, 172)
Notwithstanding that the shooting was sudden and unexpected
and committed on a helpless victim, in the absence of a showing
that such mode of attack wa s adopted consciously and that the
assailant knowingly intended to ensure the accomplishment of his
criminal purpose, and where the shooting was only an aftermath of
a mauling, kicking, and boxing incident, treachery did not attend.
It is an established rule that treachery must be present from the
commencement of the attack. (People vs. Tapeno, No. L-33573, Aug.
SCRA 696, 703)

Even though in the inception of the aggression which ended in

the death of the deceased, treachery was not present, if there was a
break in the continuity the aggression and at the time the fatal wound
was inflicted on the deceased he was defenseless, the circumstance of
treachery must be taken into account. (U.S. vs. Baluyot, 40 Phil. 385,
395)
Treachery need not exist in the beginning of the assault if the
victim was first seized and bound and then killed. (People vs.
44 Phil. 478, 483)

U.S. vs. Balagtas

(19 Phil. 164)
Facts: The accused knocked down the victim, striking him while
on the ground. Then, the accused threw him into the water, face down-
ward, while he was still alive in a helpless and defenseless condition.
Held: The knocking down of the victim, striking him on the
ground, and throwing him into the water constituted one and the same
attack. One continuous attack cannot be broken up into two or more
parts and made to constitute separate, distinct, and independent at-
tacks so that treachery may be injected therein.
445
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

Note: In this case, there was no treachery at the inception of the

attack.

Also, even if the deceased was shot while he was lying wounded
on the ground, it appearing that the firing of the shot was a mere
continuation the assault in which the deceased was wounded, with
no appreciable time intervening between the delivery of the blows and
the firing of the shot, it cannot be said that the crime was attended
by treachery. (People vs. Peje, 99 Phil. 1052
If the wounding of the victim while lying on the ground was
merely incidental to the ensuing pursuit, not intended to ensure the
safety of the attackers themselves, there is no treachery. (People vs.
No. L-23463, September 28, 1967, 21 SCRA 261 , 270)

People vs.
(44 Phil. 478)

Facts: The accused assaulted the deceased with a knife and,

in the course of the fight which ensued, inflicted a serious cut on his
thigh. Upon receiving the wound, the deceased turned and fled, and
was immediately pursued by the accused. After going a short distance,
the deceased fell to the ground face downwards; and before he could
recover his equipoise and resume his flight, the accused ran up and
delivered a fatal thrust with his knife in the back of the deceased.
Held: That as the assault was not characterized by alevosia in its
inception and the aggression was continuous until the consummation
of the deed, the offense constituted simple homicide and not murder.

Canete could not have consciously adopted that method of attack,

that is, stabbing the deceased in the back when the latter was in a
helpless condition, since the assault began face to face and it was only
when the deceased turned around and ran away that their relative
positions changed. And as the aggression was continuous, Canete had
no time to prepare for, or even to think of, that method of attack.

U.S. vs. Baluyot

(40 Phil. 385)

Facts: The accused entered the office of the governor of

when the latter was sitting on a chair behind his desk. The accused ap-
proached the desk and upon reaching a position directly in front of the
governor, spoke certain words. Upon discovering that the governor was

446
 AGGRAVATING CIRCUMSTANCES
Art. 14
Treachery
Par. 16

the accused drew his own weapon and fired. The bullet fired
entered in the frontal region of the right shoulder blade of the governor
and inflicted a wound of minor importance. The governor immediately
arose. He escaped in the direction to his left by way of the space between
the left corner of his desk and the wall nearby, leading into a corridor.
The accused meanwhile turned somewhat to his right and advanced
slightly in the direction taken by the governor who was running away.
The accused fired again at the governor, hitting the latter in the region
of the right shoulder blade and passing through the body, an inch or
two from the wound made by the first shot. The governor continued his
flight along the corridor and took refuge in a closet at the end of the
corridor. Once within, he shut the door and placed himself in a position
to obstruct the entrance of his pursuer, who vainly attempted to open
the door. The governor screamed for help. This time, the accused who
was outside the closet stopped for a moment and judging the position
of the governor's head from the direction of the sound emitted, fired
his revolver in the direction indicated. The bullet passed through the
panel of the door and struck the governor in the forward part of the
head near and above the temple. This wound was necessarily fatal.
Held: The entire assault from the beginning until the second shot
was fired must be considered continuous and that the second shot was
fired while the victim was endeavoring to flee to a place of safety.
Even supposing that alevosia had not been present in the begin-
ning of the assault, it would be necessary to find this element present
from the manner in which the crime was consummated.
In the closet with the door shut, it was impossible for the governor
to see what his assailant was doing or to make any defense whatever
against the shot directed through the panel of the door. It was as if the
victim had been bound or blind-folded, or had been treacherously at-
tacked from behind in a path obscured by the darkness of the night.

When the second shot was fired, the deceased was fleeing away
and entirely defenseless; but since the entire assault from the be-
ginning up to that time was continuous and that the assault was
begun without treachery, the Supreme Court did not consider the
second wound as having been inflicted with treachery. Moreover,
the second wound was not fatal, like the first wound. It was the
third wound in the head which caused the death of the victim. The
crime of murder was consummated with the infliction of the third
wound.
But before the third wound was inflicted by the accused, he had
stopped for sometime. This fact is deducible from the circumstances

447
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

that the accused attempted vainly to open the door of the closet; and
that when he failed, he judged the position of the head of the governor
before firing his revolver. Evidently, a certain period of time must
have elapsed in doing all of these acts. Because of that interruption,
the assault was not continuous up to the moment when the fatal blow
was inflicted treacherously. During the period of interruption, the
accused was able to think and even to make preparation for a method
or form of attack that insured the execution of the crime without risk
to himself.

Summary of the rules.

When the aggression is treachery must be present
in the beginning of the assault. (People vs. Canete, supra)
(2) When the assault was not continuous, in that there was
an interruption, it is sufficient that treachery was present
at the moment the fatal blow was given. (U.S. vs. Baluyot,
supra)

In treachery, it makes no difference whether or not the

victim was the same person whom the accused intended to
kill.
As the appellant committed the act with intent to kill and with
treachery, the purely accidental circumstance that as a result of the
shots, a person other than the one intended was killed, does not modify
the nature of the crime nor lessen his criminal responsibility, and he
is responsible for the consequences of his acts. (People vs.
No. April 16, 1968, 23 SCRA 58, 72)
That another person, and not the victim, was the intended victim
is not incompatible with the existence of treachery. Treachery may be
taken into account even if the victim of the attack was not the person
whom the accused intended to kill. (People vs. Trinidad, No. L-38930,
June 28, 1988, 162 SCRA 714, 725)
Treachery, whenever present in the commission of a crime,
should be taken into account no matter whether the victim of the
treacherous attack was or was not the same person whom the accused
intended to kill. (People vs. Mabug-at, 51 Phil. 967, 970-971; People
vs. Guillen, 85 Phil. 307, 318)
The reason for this rule is that when there is treachery, it is

448
impossible for either the intended victim or the actual victim to defend

449
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery Par. 16

himself against the aggression. (People vs. C.A., 40 O.G.

Sup.

When treachery is not to be considered as to the principal

by induction.
When it is not shown that the principal by induction directed
or induced the killer of the deceased to adopt the means or methods
actually used by the latter in accomplishing the murder, because the
former left to the latter the details as to how it was to be accomplished,
treachery cannot be taken into consideration as to the principal by
induction. It shall aggravate the liability of the actual killer only.
(U.S. vs. Gamao, 23 Phil. 81 , 96) The ruling is based on Art. 62.

Treachery, abuse of superior strength, and means

employed to weaken the defense, distinguished.
Any one of these aggravating circumstances may facilitate the
commission of the crime.
In treachery, means, methods or forms of attack are employed
by the offender to make it impossible or hard for the offended party
to put up any sort of resistance. (People vs. Ducusin, 53 Phil. 280,
289-290; People vs. 83 Phil. 738)
In abuse of superior strength, the offender does not employ
means, methods or forms of attack; he only takes advantage of his
superior strength.

In means employed to weaken the the offender, like in

treachery, employs means but the means employed only materially
weakens the resisting power of the offended party.

When there is conspiracy, treachery is considered against

all the offenders.
Treachery should be considered against all persons participat-
ing or cooperating in the perpetration of the crime, except when there
is no conspiracy among them. Hence, if there was no conspiracy even
if two accused helped each other in attacking the deceased, only the
one who inflicted the wound upon the deceased while the latter was
struggling with the other defendant, is to suffer the effect of the
attendance of treachery. (People vs. Carandang, 54 Phil. 503, 506)

450
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

The ruling stated in the first sentence should be subject to the

provision of Art. 62, paragraph No. 4, that is, treachery should be
considered against "those persons only who had knowledge" of the
employment of treachery "at the time of the execution of the act or
their cooperation therein."

When there is conspiracy, treachery attends against all conspira-

tors, although only one did the actual stabbing of the victim. (People
vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174, 211)

The mastermind should have knowledge of the

employment of treachery if he was not present when the
crime was com- mitted.
The trial court refused to consider treachery even as a generic
aggravating circumstance against appellant, on the ground that he
was not present when the crime was actually committed, and left the
means, modes or methods of its commission to a great extent to the
discretion of the others, citing People vs. De Otero, 51 Phil. 201 .
The citation is not in point. It refers to a case where the accused
was convicted as principal by inducement per se under paragraph 2 of
Article 17 of the Revised Penal Code, without proof of conspiracy with
the other accused. In the case at bar, however, there was conspiracy
among the defendants, and the rule is that every conspirator is re-
sponsible for the acts of the others in furtherance of the conspiracy.
Treachery — evident in the act of the gunman in suddenly firing his
revolver, preceded as it was by a false showing of courtesy to the vic-
tim, thus insuring the execution of the crime without risk from any
defense or retaliation the victim might offer — should be appreciated
as a generic aggravating circumstance against the mastermind even
when he was not present when the crime was committed. (People vs.
Pareja, No. Nov. 29, 1969, 30 SCRA 693 , 715-716)
The ruling in this case should be subject to the provision of Art.
62, paragraph No. 4.

If the intervention of other persons did not directly and es-

pecially insure the execution of the crime without risk to
the accused, there is no treachery.
even if the wife and sister of the accused held the deceased
by his shirt when the accused inflicted the bolo wounds which caused

451
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery
Par. 16

his death, there is no treachery, because the body and hands of the
deceased were not deprived of liberty of action and, hence, there is
still risk to the person of the accused arising from the defense which
the victim might make. (People vs. Julipa, 69 Phil. 751, 753)
But if, of the four persons who were to rob a house, one grappled
with the watchman while the two opened fire and mortally wounded
both combatants, it was held that even though in the inception of
the aggression, the watchman carried a carbine and was at liberty
to defend himself, it is a fact that at the time the fatal wounds were
inflicted, he was defenseless. His freedom of movement was being
restrained by one of the culprits when the others fired at him. (People
vs. Mobe, 81 Phil. 58, 62)
Under the circumstances, there was no risk to the aggressor
arising from any defense which the deceased might make.

Treachery, evident premeditation and use of superior strength

are absorbed in treason by killings.
Treachery, evident premeditation and use of superior strength
are, by their nature, inherent in the offense of treason. (People vs.
Racaza, 82 Phil. 623 , 637)

Treachery absorbs abuse of superior strength, aid of

armed men, by a band and means to weaken the defense.
Abuse of superior strength and employing means to weaken the
defense of the deceased by throwing sand to his face are absorbed
in treachery. (People vs. Siaotong, G.R. No. L-9242, March 29, 1957

When treachery is taken into account as a qualifying circumstance

in murder, it is improper to consider, in addition to that circumstance,
the generic aggravating circumstance of abuse of superior strength,
since the latter is necessarily included in the former. (U.S. vs. Estopia,
28 Phil. 97, 100; U.S. vs. Oro, 19 Phil. 548, 554-555; U.S. vs. Vitug,
17 Phil. 1, 20)
The aggravating circumstances of superior strength and by
band are absorbed in treachery. (People vs. Ampo-an, G.R. No. 75366,
July 4, 1990, 187 SCRA 173, 189; People vs. Manzanares, G.R. No.
82696, Sept. People vs. Molato, G.R. No.

452
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

66634, Feb. 27, 1989, 170 SCRA 640, 647; People vs. Renejane, Nos.
L-76954-55, Feb. 26, 1988, 158 SCRA 258, 269)
The killings were attended with the aggravating circumstances
of treachery, abuse of superiority, dwelling and band
The qualifying circumstance alleged in the information is treachery
which absorbs abuse of superior strength and cuadrilla. (People vs.
Mori, Nos. Jan. 31 , 1974, 55 SCRA 382, 403; People vs.
Sangalang, No. Aug. 30, 1974, 58 SCRA 737, 741)
The aggravating circumstances of superior strength and aid of
armed men, as well as nighttime, are included in the qualifying cir-
cumstance of treachery. (People vs. 102 Phil. 199, 210)
Ni ghtti me and abuse of superior strength are inherent in
treachery and cannot be appreciated separately. (People vs. Bardon,
No. L-60764, Sept. People vs.
No. Dec. 3, SCRA 195, 202)
Abuse of superiority and aid of armed men are absorbed in
treachery. (People vs. No. L-66965, June SCRA
113, 139)
Treachery absorbs nocturnity, abuse of superiority, band and
aid of armed men. While there may be instances where any of the
other circumstances may be treated independently of treachery, it is
not so when they form part of the treacherous mode of attack. (People
vs. Sudoy, Oct. 10, 1974, 60 SCRA 174, 182)

Nighttime inherent in treachery.

The reason for this rule is that nighttime forms part of the
peculiar treacherous means and manner adopted to insure the
execution of the crime. (People vs. Pardo, 79 Phil. 568; People vs.
107 Phil. 44 , 50)
Had it not been at night, the accused would not have been able
to approach the deceased without the latter's becoming aware of his
presence and guessing his intention. (People vs. Balagtas, 68 Phil. 675,
677) Hence, nighttime is not a separate aggravating circumstance,
whenever treachery is already considered.

When nighttime is not absorbed in treachery.

There was treachery in the commission of the offense at bar.
453
 AGGRAVATING CIRCUMSTANCES Art. 14
Treachery
Par. 16

The victims' hands were tied at the time they were beaten. Since the
treachery rests upon an independent factual basis, the circumstance
of nighttime is not absorbed therein, but can be perceived distinctly
therefrom. A special case therefore is present to which the rule that
nighttime is absorbed in treachery does not apply. (See People vs.
John Doe, G.R. No. L-2463, March 31 , 1950; 2 Viada, Codigo Penal,
274-275; People vs. Berdida, No. June 30, 1966, 17 SCRA
520, 529; People vs. Ong, No. L-34497, Jan. 62 SCRA 174,
212; People vs. Luna, No. July 31 , 1974, 58 SCRA 195,
208)

Craft is included in and absorbed by treachery.

Craft is included in and absorbed by the qualifying circumstance
of treachery, because it was used to insure the commission of the crime
without any risk to the culprits. (People vs. 83 Phil. 804)

But in the case of People vs. Daos, 60 Phil. it was held

that the aggravating circumstances of craft and treachery should be
taken into consideration, on the ground that the act of the accused
in pretending to be bona fide passengers in the taxi in order not to
arouse the driver's suspicion constitute craft; and the fact that in
assaulting him they did so from behind, catching him completely
unaware, certainly constitutes treachery.
When craft was employed in robbery with homicide, not with
a view to making treachery more effective as nighttime or abuse of
superior strength would in the killing of the victim, but to facilitate
the taking of the jeep in the robbery scheme as planned by the culprits,
it is not absorbed in treachery. (People vs. San Pedro, No. L-44274,
Jan. 22, 1980, 95 SCRA 306, 309)

Age and sex are included in treachery.

Disregard of age and sex may be deemed included in treachery.
(People vs. 88 Phil. 35, 42, citing People vs. Mangsant, 65
Phil. 548)
The aggravating circumstances of disregard of age and sex, and
advantage taken of superior strength, should not have been considered
independently of the aggravating circumstance of treachery which
was already considered. (People vs. Gervacio, No. August
30, 1968, 24 SCRA 960, 976)

454
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 16 Treachery

Illustration of aggravating circumstance absorbed by an-

other.
The circumstances of nighttime, uninhabited place, cruelty and
aid of armed persons cannot be taken into consideration as aggra-
vating circumstances, because the first (nighttime) was necessarily
included in that of treachery; that of uninhabited place, because it
has not been proven that there were no houses near the house of the
deceased; that of cruelty, because the fire, which is the fact in which
said circumstance is made to consist, took place after the victims
were already dead, the appellant not having taken advantage of said
means to deliberately augment the seriousness of the crime; and that
of aid of armed persons, because the appellant as well as those who
cooperated with him in the commission of the crime in question, acted
under the same plan and for the same purpose. (People vs. 63
Phil. 546, 553)

Dwelling is not included in treachery.

The aggravating circumstance of dwelling cannot be included
in the qualifying circumstance of treachery. (People vs. 100
Phil. 537, 544; People vs. Jimenez, 99 Phil. 285, 288)

Defenseless condition of victims is included in abuse of su-

perior strength, not treachery.
The defenseless condition of the women and children shot to
death by the offenders should be considered as included in the qualify-
ing circumstance of abuse of superior strength, not as an independent
circumstance of treachery. (People vs. Lawas, G.R. Nos.
June 30, 1955)

Treachery is inherent in murder by poisoning.

Treachery is inherent in murder by poisoning. (People vs. Caliso,
58 Phil. 283 , 295)

Treachery cannot co-exist with passion or obfuscation.

Treachery cannot co-exist with passion or obfuscation, for while
in the mitigating circumstance of passion or obfuscation, the offender
loses his reason and self-control, in the aggravating circumstance
of treachery the mode of attack must be consciously adopted. One

455
 AGGRAVATING CIRCUMSTANCES Art. 14
Ignominy Par. 17

who loses his reason and self-control could not deliberately employ
a particular means, method or form of attack in the execution of the
crime. (People vs. Wong, C.A., 70 O.G. 4844)

Par. 17. — That means be employed or circumstances brought

about which add ignominy to the natural effects of
the act.

Basis of this aggravating circumstance.

The basis has reference to the means employed.

Ignominy, defined.
Ignominy is a circumstance pertaining to the moral order, which
adds disgrace and obloquy to the material injury caused by the crime.
(U.S. vs. Abaigar, 2 Phil. 417, 418; People vs. Acaya, No. L-72998,
July 163 SCRA 768, 774)

Applicable to crimes against chastity, less serious physical

injuries, light or grave coercion, and murder.
This aggravating circumstance is applicable when the crime
committed is against chastity.
Ignominy aggravates the penalty for the crime of less serious
physical injuries. (Art. 265, par. 2)
Ignominy was considered in the crime of light coercion under
Article 287, paragraph 2, in a case where the accused who embraced
and kissed the offended party acted under an impulse of anger rather
than a desire to satisfy his lust. The act was committed in the pres-
ence of many persons. The offended party was a young woman. These
circumstances tended to make the effects of the crime more humiliat-
ing. (People vs. Cantong, C.A., 50 O.G. 5899)
There is ignominy to be considered in determining the proper
penalty for murder, when before he was killed, the deceased, a
landowner, was forced by the accused to kneel in front of his house
servants drawn up in line before him. (U.S. vs. De Leon, 1 Phil. 163,
164)

456
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 17 Ignominy

"That means be employed."

When the accused raped a woman after winding cogon grass
around his genital organ, he thereby augmented the wrong done by
increasing its pain and adding ignominy thereto. (People vs.
et C.A., 45 O.G. 803)

"That circumstances be brought about."

(1) It would be present in a case where one rapes a married
woman in the presence of her husband (U.S. vs. Iglesia, 21
Phil. 55, 57), or alleged husband (People vs. Soriano, No.
L-32244, June SCRA 740, or where
the accused rapes a woman in the presence of her betrothed
(U.S. vs. 5 Phil. 377-378), or where a woman
was successively raped by four men (U.S. vs. Camiloy, 36
Phil. 757, 758), or where one of the victims was raped in
the presence of her husband, and the other successively
raped by five men (People vs. Detuya, No. L-39300, Sept.
30, 1987, 154 SCRA 410, 426), or where the accused used
not only the missionary position, male superior, female
inferior, but also the dog style of sexual intercourse, i.e.,
entry from behind. (People vs. Saylan, No. June
29, 1984, 130 SCRA

But where the rape of the wife was not perpetrated

in the presence or with the knowledge of her husband, or
where the rape was done after the husband was killed,
the rape committed could not have added ignominy to the
crime. (People vs. Mongado, No. L-24877, June 30, 1969,
28 SCRA 642, 651)
(2) There is ignominy when in compelling an old woman to
confess to the theft of clothes, the accused maltreated her
and took off her drawers because the removing of her draw-
ers could have no other purpose but to put her to shame.
(People vs. Fernando, C.A., 43 O.G. 1717)
The crime committed in that case is grave coercion.
(Art. 286)

"Which add ignominy to the natural effects of the act."

According to this clause, the means employed or the

457
 AGGRAVATING CIRCUMSTANCES Art. 14
Ignominy Par. 17

brought about must tend to make the effects of the crime

more humiliating or to put the offended party to shame.
The fact that the appellants, in ordering the complainant to
exhibit to them her complete nakedness for about two minutes before
raping her, brought about a circumstance which tended to make the
effects of the crime more humiliating. (People vs. Jose, No.
Feb. 37 SCRA 450 , 476) Similarly, in a case where it was
tablished that the accused used a flashlight and examined the genital
of the victim before he ravished her, and committed the bestial deed
in the presence of the victim's old father, the Supreme Court held
that these facts clearly show that the accused deliberately wanted to
further humiliate the victim, thereby aggravating and compounding
her moral sufferings. (People vs. Bumidang, G.R. No. 130630, Dec.
4, 2000)

Ignominy attended in this case: Between seven and eight o'clock

in the evening, the unwary victim went to the beach where she was
accustomed to void and when she squatted, the assailant unexpect-
edly appeared behind her, held her hair, thus tilting her face, and
while in that he inserted into her mouth the muzzle of his
pistol and fired. She died. (People vs. No. L-32624, Feb. 12,
1980, 96 SCRA 1,

But the fact that the accused sliced and took the flesh from the
thighs, legs and shoulders of the victim after killing her by the use
of a knife does not add ignominy to the natural effects of the act.
(People vs. Balondo, No. Oct. 30 SCRA
161; People vs. No. L-66965, June SCRA 113,
140)
It is incorrect to appreciate adding ignominy to the offense where
the victim was already dead when his body was dismembered. It is
required that the offense be committed in a manner that tends to
make its effects more humiliating to the victim, that is, add to his
moral suffering. (People vs. G.R. No. 81404, Jan. 28, 1991,
193 SCRA 429, 436)
The mere fact that the assailant fired more shots at the pros-
trate bodies of his victims is not sufficient to show the existence of
ignominy. (People vs. Pantoja, No. Oct. 11, 1968, 25 SCRA
468, 472)

458
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 18 Unlawful Entry

No ignominy when a man is killed in the presence of his

wife.
The fact that the deceased was killed in the presence of his
wife certainly could not have such signification. The circumstance of
ignominy was not present, because no means was employed nor did
any circumstance surround the act tending to make the effects of the
crime more humiliating. (U.S. vs. Abaigar, supra)

Rape as ignominy in robbery with homicide.

Rape committed on the occasion of robbery with homicide
increases the moral evil of the crime, and it is incorrect to say that
there is no law which considers rape as an aggravating circumstance
simply because it is not specifically enumerated in Article 14 of the
Revised Penal Code as an aggravating circumstance. As has been
held in People vs. Racaza, 82 Phil. 623 , 638, rapes, wanton robbery
for personal gain, and other forms of cruelties are condemned and
their perpetration will be regarded as aggravating circumstances of
ignominy and of deliberately augmenting unnecessary wrongs to the
main criminal objective under paragraphs 17 and 21 of Article 14 of
the Revised Penal Code. (People vs. Tapales, No. Sept. 10,
1979, 93 SCRA 134, 142. But see People vs. Mongado, No. L-24877,
June 30, 1969, 28 SCRA 642, 651-652)

Par. 18. — That the crime be committed after an unlawful entry.

Basis of this aggravating circumstance.

The basis has reference to the means and ways employed to
commit the crime.

Meaning of unlawful entry.

There is an unlawful entry when an entrance is effected by a
way not intended for the purpose.

To effect entrance, not for escape.

Unlawful entry must be a means to effect entrance and not for
escape. (People vs. Sunga, 43 Phil. 205, 206)

459
 AGGRAVATING CIRCUMSTANCES Art. 14
Unlawful Entry
Par. 18

Example:

The act of entering through the window, which is not the proper
place for entrance into the house, constitutes unlawful entry.
Is there unlawful entry if the door is broken and thereafter made
an entry thru the broken door? No, it will be covered by paragraph
19.

Reason for aggravation.

One who acts, not respecting the walls erected by men to guard
their property and provide for their personal safety, shows a greater
perversity, a greater audacity; the law punishes him with more
severity.

Application of this circumstance.

It should be considered in rape committed in a house after an
entry through the window. It should be considered also in murder
where the accused entered the room of the victim through the window.
It should be considered also in robbery with violence against or
intimidation of persons, because unlawful entry is not inherent in that
particular kind of robbery. The window is not intended for entrance
into the building.
But unlawful entry is one of the ways of committing robbery
with force upon things under Art. 299, par. (a), and Art. 302 of the
Code. It is inherent in this kind of robbery.
If the crime charged in the information was only theft, and
during the trial, the prosecution proved unlawful entry, it is a
generic aggravating circumstance which may raise the penalty for
theft to the maxi mu m period. It would be improper to convict the
accused of robbery with force upon things because unlawful entry
was not alleged in the information. (People vs. Sunga, 43 Phil. 205,
206)

Dwelling and unlawful entry taken separately in murders committed

in a dwelling.
When the accused gained access to the dwelling by climbing
through the window and once inside, murdered certain persons in the
dwelling, there were two aggravating circumstances which attended

460
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 19 Breaking Wall

the commission of the crimes — dwelling and unlawful entry. (People

vs. 61 Phil. 318, 331)

Unlawful entry is not aggravating in trespass to dwelling.

Trespass to dwelling is committed when a private individual
shall enter the dwelling of another against the latter's will and may
be committed by means of violence. (Art. 280)
If the offender entered the dwelling of another through an open-
ing not intended for the purpose, like the window, the unlawful entry
was an integral part of the circumstance of violence with which the
crime of trespass was committed. (U.S. vs. Barberan, 17 Phil. 509,
511-512)

Par. 19. — That as a means to the commission of a crime, a wall,

roof, floor, door, or window be broken.

Basis of this aggravating circumstance.

The basis has reference to means and ways employed to commit
the

Is the cutting of the canvas of the tent where soldiers are sleeping
covered by par. 19?
It was considered aggravating in murder where the accused cut
the ropes at the rear of a field tent and killed two soldiers inside the
tent. (U.S. vs. Matanug, Phil. 188, 189, 192)
The Supreme Court called it aggravating circumstance of
forcible

"As a means to the commission of a crime."

A broke a window to enable himself to reach a purse with money
on the table near that window, which he took while his body was
outside of the building. The crime of theft was attended by this ag-
gravating circumstance. Note that because of the phrase "as a means
to the commission of a crime," it is not necessary that the offender
should have entered the building. What aggravates the liability of
the offender is the breaking of a part of the building as a means to
the commission of the crime.

461
 AGGRAVATING CIRCUMSTANCES
Art. 14
Breaking Wall
Par. 19

To be considered as an aggravating circumstance, breaking the

door must be utilized as a means to the commission of the crime. It
is not to be appreciated where the accused did not break the door of
the victims as a means to commit robbery with homicide where the
accused after breaking the rope which was used to close the door
could have already entered the house. Breaking of the shutters and
the framing of the door to insure the elements of surprise does not
aggravate the commission of the crime. (People vs. Capillas, No. L-
27177, Oct. 23, 1981, 108 SCRA 173, 187)

To effect entrance only.

But it may be resorted to as a means to commit a crime in a
house or building.
For example, a murderer who, for the purpose of entering the
house of his victim, breaks a wall or a window of the house.
The circumstance is aggravating only in those cases where the
offender resorted to any of said means to enter the house. If the wall,
etc., is broken in order to get out of the place, it is not an aggravating
circumstance.
Breaking a part of the building is one of the means of entering
the building to commit robbery with force upon things under Art. 299,
par. (a), and Art. 302 of the Code. It is inherent in this kind of robbery.
Breaking a part of the building is not aggravating in that crime.

Where breaking of door or window is lawful.

Under Rule 113, Sec. 11 (Revised Rules of Criminal Procedure).
— An officer, in order to make an arrest, either by virtue of a war-
rant, or without a warrant as provided in Section 5, may break into
any building or enclosure where the person to be arrested is or is
reasonably believed to be, if he is refused admittance thereto, after
announcing his authority and purpose.
Rule 126, Sec. 7 (Revised Rules of Criminal Procedure). - The
officer, if refused admittance to the place of directed search after
giving notice of his purpose and authority, may break open any
outer or inner door or window of a house or any part of a house or
anything therein to execute the warrant or liberate himself or any
person lawfully aiding him when unlawfully detained therein.

462
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 20 Aid of Minor or by Means of Motor Vehicles

Par. 20. — That the crime he committed (1) with the aid of
persons under fifteen years of age, or (2) by means
of motor vehicles, airships, or other similar means.

Basis of the aggravating circumstances.

The basis has reference to means and ways employed to commit
the crime.

Two different aggravating circumstances in paragraph 20.

Two different circumstances are grouped in this paragraph. The
first one tends to repress, so far as possible, the frequent practice
resorted to by professional criminals to avail themselves of minors
taking advantage of their irresponsibility; and the second one is in-
tended to counteract the great facilities found by modern criminals
in said means to commit crime and flee and abscond once the same is
committed. (Albert)

"With the aid of persons under years of age."

A caused B, a boy 14 years old, to climb the wall of the house
of C, to enter the same through its window, and once inside, to take,
as in fact B took, clothes and other personal property in the house of
Then B threw them to the ground where A picked them up. The
aggravating circumstance that the crime was committed with the aid
of a person under fifteen years of age should be taken into account
against A.

"By means of motor vehicles."

Use of motor vehicle is aggravating where the accused used the
motor vehicle in going to the place of the crime, in carrying away the
effects thereof, and in facilitating their escape. (People vs. Espejo,
No. L-27708, Dec. 19, 1970, 36 SCRA 400, 418)
May this aggravating circumstance be considered if the motor
vehicle was used, not as a means to commit the crime, but only as a
means for the flight or concealment of the offender? Judge Guevara
believes that the use of motor vehicles is aggravating the
same furnish a quick means for the flight or concealment of the of-

463
 AGGRAVATING CIRCUMSTANCES Art. 14
Aid of Minor or by Means of Motor Vehicles Par. 20

The accused used the motor vehicle in going to the place of the
crime, in carrying the effects thereof and in facilitating the escape.
(People vs. Espejo, 36 SCRA 400)
When the accused has decided to realize his plan of liquidating
the victim, drove his pickup with his companions, conducted a sur-
veillance of the victim's whereabouts while driving his pickup, killed
the victim upon meeting him, and made good his escape by speeding
away in his vehicle, the motor vehicle was used as a means to commit
the crime and to facilitate escape, which is aggravating. (People vs.
No. Oct. 23 , 1978, 85 SCRA 576, 596)
After an earlier confrontation, the principal accused caught up
with the victim on board a jeep which the former was driving. As soon
as he had stopped the vehicle, he stepped down and axed the victim,
while one of several companions stabbed him, the rest stoning him.
The victim died. The jeep having played an important role in the
accomplishment of the crime and the accused and his companions
having made good their escape by speeding away aboard the jeep
in order to avoid discovery of their identities, use of motor vehicle
is aggravating. (People vs. Bardon, No. L-60764, Sept.
SCRA 416, 420, 426)

Note: If the motor vehicle was used only in facilitating the

escape, it should not be an aggravating circumstance.

Where the use of a vehicle was not deliberate to facilitate the

killing of the victim, the escape of the assailants from the scene of
the crime, and the concealment of the body of the victim, but only
incidental, it is not an aggravating circumstance. (People vs.
No. Sept. 107 SCRA 313 , 338)
Where it appears that the use of motor vehicle was merely in-
cidental and was not purposely sought to facilitate the commission
of the offense or to render the escape of the offender easier and his
apprehension difficult, the circumstance is not aggravating. (People
vs. Garcia, No. July 9, 1981, 105 SCRA 325, 343)
Use of motor vehicle will not be considered as an aggravating
circumstance where there is no showing that the motor vehicle was
purposely used to facilitate the commission of the crime or where
it is not shown that without it, the offense charged could not have
been committed. Thus, where the primary purpose of the assailant
in riding on a motorized tricycle was to return to their camp (assail-

464
 Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 20 Aid of Minor or by Means of Motor Vehicles

ant was a PC enlistedman) after shooting a first victim and it was

just incidental that on his way to the camp, he happened to see the
second victim, the circumstance is not aggravating. (People vs. Mil,
Nos. July 30, 1979, 92 SCRA 89, 102)

Estafa, which is committed by means of deceit or abuse of

con- cannot be committed by means of motor
vehicle.
While it is true that a jeep was used in carting away the Vicks
we feel that the crime of estafa was not committed by means
of said vehicle. Furthermore, under Article 14, paragraph 20 of the
Revised Penal Code, that aggravating circumstance exists only if
crime be committed by means of motor vehicles (People vs.
Bagtas, et CA-G.R. No. September 12, 1955)

Theft, which is committed by merely taking personal property

which need not be carried away, cannot be committed by
means of motor vehicles.
The culprits used a car and, for part of the way, a hired jeep in
going to and coming from the place where the crime (theft) was com-
mitted. It would be stretching the meaning of the law too far to say
that the crime was committed means of motor vehicles." (People
vs. Real, 10 C.A. Rep. 668)

Examples of crimes committed by means of motor vehicle.

A, with the help of B and with lewd designs, forcibly took and
carried away a woman by means of an automobile to another town.
The crime of forcible abduction (Art. 342) was committed with this
aggravating circumstance.
Use of motor vehicle was aggravating in theft where a truck
was used in carrying away the stolen rails and iron and wooden ties
from the scene of the theft to the place where they were sold (People
vs. Arabia, C.A., 53 O.G. 6569), and in robbery with homicide where
a motor vehicle was used in transporting the accused. (People vs.
90 Phil. 15, 31 , 35)
Even if the victims rode voluntarily in the jeepney, since they
were lured and taken to the place where they were killed, the use of
motor vehicles was considered aggravating. (People vs. De la Cruz,
100 Phil. 624, 634)
465
 AGGRAVATING CIRCUMSTANCES Art. 14
Cruelty
Par. 21

A jeep was used by the appellants in fetching and luring the

deceased from his house to go with them on the night in question,
which they must have used also in taking him to the spot where later
on the victim's body was found. There can be no doubt that the use of
the motor vehicle facilitated the commission of the offense. (People
vs. Atitiw, 14 CAR [2s] 457, 467)
When the accused stabbed and inflicted upon his girlfriend,
mortal wounds which caused her death, while they were in a taxi
which was hired and used by him, the aggravating circumstance of
by means of motor vehicle was present. (People vs. Marasigan, 70
Phil. 583 , 594)
Where the accused used a motor vehicle to insure the success of
their nefarious enterprise, the circumstance is aggravating. (People
vs. Jaranilla, No. L-28547, Feb. 22, 1974, 55 SCRA 563 , 575)
Use of motor vehicle is aggravating in this case: the car of the
accused was used in trailing the victim's car up to the time that it
was overtaken and blocked. It carried the victim on the way to the
scene of the killing; it contained at its baggage compartment the pick
and shovel used in digging the grave; and it was the fast means of
fleeing and absconding from the scene. (People vs. Ong, No. L-34497,
Jan. 62 SCRA 174, 214)

"Or other similar means."

The expression should be understood as referring to motorized
vehicles or other efficient means of transportation similar to auto-
mobile or airplane.
Thus, if the culprit, before committing and after committing the
crime, rode in a bicycle and escaped, there is no aggravating circum-
stance. But it is aggravating if he used a motorcycle.

Par. 21. — That the wrong done in the commission of the crime
be deliberately augmented by causing other wrong
not necessary for its commission.

Basis of this aggravating circumstance.

The basis has reference to ways employed in committing the

466
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 21 Cruelty

What is cruelty?
is cruelty when the culprit enjoys and delights in making
his victim suffer slowly and gradually, causing him unnecessary
physical pain in the consummation of the criminal act. (People vs.
Dayug, 49 Phil. 423, 427)
For cruelty to be aggravating, it is essential that the wrong
done was intended to prolong the suffering of the victim, causing
him unnecessary moral and physical pain. (People vs. Llamera, Nos.
May 25, 1973, 51 SCRA 48, 60)
For cruelty or to be appreciated, the evidence
must show that the sadistic culprit, for his pleasure and satisfaction,
caused the victim to suffer slowly and gradually, and inflicted on him
unnecessary moral and physical pain. (People vs. Luna, No.
July 31 , 1974, 58 SCRA 198, 209)

For cruelty to exist, it must be shown that the accused enjoyed

and delighted in making his victim suffer slowly and gradually, caus-
ing him unnecessary physical or moral pain in the consummation
of the criminal act. (People vs. Ong, No. L-34497, Jan. 30, 1975, 62
SCRA 174, 215)

Requisites of cruelty:
That the injury caused be deliberately increased by causing
other
2. That the other wrong be unnecessary for the execution of
the purpose of the offender.

"Be deliberately augmented by causing other wrong."

This phrase means that the accused at the time of the commis-
sion of the crime had a deliberate intention to prolong the suffering
of the victim.

Cruelty was not present in a case where the assailant stoned

twice the victim, not for the purpose of increasing his sufferings, but
to kill him (U.S. vs. 3 Phil. 354, 357), or in a case where the
acts of the assailants showed only a decided purpose to kill and not
to prolong sufferings of the victim (U.S. vs. Tan 32 Phil. 104,
or where the purpose was to ensure the death of the three victims

467
 AGGRAVATING CIRCUMSTANCES Art. 14
Cruelty Par. 21

and to tamper with the bullet wounds to make them appear as bolo
wounds in order to conceal the fact that a gun was used in killing
them (People vs. Llamera, supra), or where the victim was drowned
in the sea after stabbing him while bound (People vs. Luna, supra),
or where the victim was buried after being stabbed, not to make him
suffer any longer but to conceal his body and the crime itself (People
vs. Ong, supra), or where the accused kicked the deceased or placed
his right foot on the body of the deceased to verify whether or not
the latter was still alive, and not for the purpose of deliberately and
inhumanly increasing his sufferings. (People vs. Mil, Nos.
05, July 30, 1979, 92 SCRA 89, 101)

"Other wrong not necessary for its commission."

A and B, who had tied C in the latter's house, struck him with
their guns to make him point the place where he was keeping his
money. Striking him with the guns is "other wrong," but it is neces-
sary for the commission of the crime of robbery, particularly to get
C's money. Hence, there is no cruelty.

Cruelty refers to physical suffering of victim purposely in-

tended by offender.
Cruelty requires deliberate prolongation of the physical suffering
of victim. (People vs. Dayug, supra; People vs. Llamera, supra)

Cruelty cannot be presumed.

Cruelty is not to be inferred from the fact that the body of the
deceased was dismembered, in the absence of proof that this was
done while the victim was still alive. (People vs. Jimenez, 54 O.G.
1361)

Cruelty considered in murder by burning mouth of child.

This circumstance is considered in the charge of murder for
burning the mouth and other parts of the body of an infant, months
old. If the desire of the defendant had been only to kill the child, he
could have carried out his purpose without compelling the victim to
undergo such great suffering and for so long a time. (U.S. vs. Oro, 19
Phil. 548, 554)

468
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. Cruelty

Cruelty considered in extracting victim's eye and stuffing his

mouth with mud.
After hog-tying the victim, the accused extracted the victim's
left eye from its socket with the pointed end of his cane and also
stuffed the victim's mouth with mud. Held: There is cruelty. (People
vs. Mariquina, 84 Phil. 39, 40-41, 43 , 44)

When the series of acts causing unnecessary sufferings of

victim took place in rapid succession, is there cruelty?
When a woman and her two daughters, one of them Corazon,
were fired at by the accused, Corazon screamed for help. One of the ac-
cused grabbed her, raised her from the ground, while the other accused
battered her with the butt of the rifle and pounded her on the ground.
Corazon died of external and hemorrhage. Held: There was
unnecessary cruelty. (People vs. Beleno, 92 Phil. 868, 869, 872)
Was there a deliberate intention on the part of the accused to
prolong the suffering of the victim? There seems to be no appreci-
able time intervening between or among the series of acts of the
accused.
In the case People vs. Dayug, supra, it was held that mere
fact of inflicting various successive wounds upon a person in order to
cause his death, no appreciable time intervening between the infliction
of one wound and that of another to show that the offender wanted
to prolong the suffering of his victim, is not sufficient for taking this
aggravating circumstance into consideration."

Plurality of wounds alone does not show cruelty.

Number of wounds alone does not show cruelty, it being neces-
sary to show that the accused deliberately and inhumanly increased
the sufferings of the victims. (People vs. 55 Phil.
616; People vs. Manzano, Nos. L-33643-44, July 31 , 1974, 58 SCRA
250, 262; People vs. Lacao, No. L-32078, Sept. 60 SCRA 89,
96-97)

In the absence of a showing that the other wounds found on

the body of the victim were inflicted to prolong his suffering before
the fatal wound was dealt, it cannot be concluded that cruelty was
duly proven. Cruelty cannot be presumed. (People vs. No.
May 15, 1979, 90 SCRA 144, 156)
 AGGRAVATING CIRCUMSTANCES Art. 14
Cruelty Par. 21

Where there were many wounds because there were many as-
sailants, the number of wounds alone is not sufficient to show that
the killing was committed for the purpose of deliberately and inhu-
manly augmenting the suffering of the victim. (People vs. Vasquez,
No. 54117, April 27, 1982, 113 SCRA 772, 776)

No cruelty when other wrong was done after victim was

dead.
Cutting extremities after victim is killed is not cruelty. (People
vs. Bersabal, 48 Phil. 439, 441)
If at the time the house was set on fire the inmates who had been
seriously wounded were already dead, there is no cruelty. (People vs.
63 Phil. 546, 553; People vs. 85 Phil. 350, 353)
Neither may we consider the circumstance of cruelty as found
by the trial court, because there is no showing that the other wounds
found on the bodies of the victims were inflicted unnecessarily while
they were still alive in order to prolong their physical suffering.
(People vs. Nos. Oct. 31 , 1963, SCRA 323,
347-348)

For cruelty to be appreciated as a generic aggravating circum-

stance, there must be positive proof that the wounds found on the
body of the victim were inflicted while he was still alive in order un-
necessarily to prolong physical suffering. (People vs. G.R. No.
69986, March 194 SCRA 654, 663)

Ignominy distinguished from cruelty.

Ignominy (par. 17) involves moral suffering, while cruelty (par.
refers to physical suffering.

Rapes, robbery and other forms of cruelties are aggravating

circumstances of ignominy and cruelty in treason.
Rapes, wanton robbery for personal gain, and other forms of
cruelties are condemned and their perpetration will be regarded as ag-
gravating circumstances of ignominy and of deliberately augmenting
unnecessary wrongs to the main criminal objective, under paragraphs
17 and 21 of Article 14 of the Revised Penal Code. (People vs. Racaza,
82 Phil. 623, 638)

469
Art. 14 AGGRAVATING CIRCUMSTANCES
Par. 21 Cruelty

Rape as aggravating in robbery with homicide.

Where rape attends the commission of the crime of robbery with
homicide, the rape should be deemed to aggravate the robbery with
homicide. (People vs. Basca, 55 O.G. 797)

Rape as aggravating in murder.

Since the victim was already at the threshold of death when
she was ravished, that bestiality may be regarded either as a form of
ignominy causing disgrace or as a form of cruelty which aggravated
murder, because it was unnecessary to the commission thereof and
was a manifest outrage on the victim's person. (People vs.
No. Oct. 23, 1979, 93 SCRA 638, 645)

Aggravating circumstances peculiar to certain felonies.

Among the aggravating circumstances peculiar to certain felo-
nies are the following:
That the offense (violation of domicile) be committed in
the nighttime, or if any papers or effects not constituting
evidence of a crime be not returned immediately after the
search made by the offender. (Art. 128, par. 2)
2. That the crime (interruption of religious worship) shall
have been committed with violence or threats. (Art. 132,
par. 2)

That the assault (direct assault) is committed with a weapon,

or when the offender is a public officer or employee, or when
the offender lays hands upon a person in authority. (Art.
148)
4. If the crime (slavery) be committed for the purpose of assign-
ing the offended party to some immoral the penalty
shall be imposed in its maximum period. (Art. 272, par. 2)
5. If the threat (grave threats) be made in writing or through
a middleman, the penalty shall be imposed in its maximum
period. (Art. 282)
6. If the robbery with violence against or intimidation of per-
sons (except robbery with homicide, or robbery with rape,
is committed in an uninhabited place or by a band,
470
 ALTERNATIVE CIRCUMSTANCES Art. 14
Definition and

or on a street, road, highway, or alley, and the intimidation

is made with the use of a firearm, the offender shall be
punished by the maximum period of the proper penalties.
(Art. 295)
7. If the robbery with the use of force upon things (Art. 299)
is committed in an uninhabited place and by a band, it
shall be punished by the maximum period of the penalty
provided therefor. (Art. 300)

Alternative Circumstances
1. Definition or concept.
Alternative circumstances are those which must be
taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and the
other conditions attending its commission.

2. Basis of the alternative circumstances.

The basis is the nature and effects of the crime and
the other conditions attending its commission.

471
 Chapter Five
ALTERNATIVE CIRCUMSTANCES

Art. 15. Their concept. — A l t e r n a t i v e c i r c u m s t a n c e s ar e

th os e w h i c h mu s t b e t a k e n int o c o n s i d e r a t i o n a s a g g r a v a t i n
g o r m i t i g a t i n g a c c o r d i n g t o th e n a t u r e an d effec ts o f th e c ri m
e an d th e o th e r c o n d i t i o n s a t t e n d i n g it s c o m m i s s i o n . T h e y
ar e th e r e l a t i o n s h i p , i n t o x i c a t i o n , an d th e d e g r e e o f
i n s t r u c t i o n an d e d u c a t i o n o f th e of fe n d er .
Th e a l t e r n a t i v e c i r c u m s t a n c e o f r e l a t i o n s h i p sh al l b e
t a k e n i n t o c o n s i d e r a t i o n w h e n th e o f f e n d e d p a r t y i s th e
sp ou se , a s c e n d a n t , d e s c e n d a n t , l e g i t i m a t e , n at u r al , o r a d o p t e
d b r o t h e r o r si ster, o r r e l a t i v e b y affinity i n th e s a m e d e g r e e
o f th e of fe n d er .
Th e i n t o x i c a t i o n o f th e o f f e n d e r sh al l b e t a k e n int o con -
s i d e r a t i o n a s a m i t i g a t i n g c i r c u m s t a n c e w h e n th e o f f e n d e
r ha s c o m m i t t e d a fel on y in a stat e of i n t o x i c a t i o n , i f th e s am e
i s no t h a b i t u a l o r s u b s e q u e n t t o th e p l a n t o c o m m i t sai d
fel on y; bu t w h e n th e i n t o x i c a t i o n i s h a b i t u a l o r i n t e n t i o n a l ,
i t sh al l b e c o n s i d e r e d a s a n a g g r a v a t i n g c i r c u m s t a n c e .

The alternative circumstances are:

1. Relationship;
2. Intoxication; and

Degree of instruction and education of the offender.

Relationship.
The alternative circumstance of relationship shall be taken into
consideration when the offended party is the —
(a) spouse,

472
 ALTERNATIVE CIRCUMSTANCES Art. 15
Relationship

(b) ascendant,
(c) descendant,

(d) legitimate, natural, or adopted brother or sister, or

(e) relative by affinity in the same degree of the offender.

Other relatives included.

The relationship of stepfather or stepmother and stepson or
stepdaughter is included by analogy as similar to that of ascendant
and descendant. (People vs. Bersabal, 48 Phil. 439, 441; People vs.
C.A., 38 O.G. 467)
The reason for considering these relationships, as stated in the
case of People vs. Portento, supra, is that it is the duty of the
mother to bestow upon her stepdaughter a mother's affection, care
and protection. Hence, the effect of the crime of murder committed
by the stepmother against her stepdaughter makes the relationship
aggravating.

The relationship of adopted parent and adopted child may also

be included, as similar to that of ascendant and descendant.
But the relationship between uncle and niece is not covered by
any of the relationships mentioned. (U.S. vs. 15 Phil. 358,
361; People vs. Balondo, No. Oct. 31 , 1969, 30 SCRA 155,
161; People vs. No. July SCRA 685,
692-693)

When mitigating and when aggravating.

The law is silent as to when relationship is mitigating and when
it is aggravating.
As a rule, relationship is mitigating in crimes against property,
by analogy to the provisions of Art. 332.
Thus, relationship is mitigating in the crimes of robbery (Arts.
294-302), usurpation (Art. 312), fraudulent insolvency (Art. 314), and
arson. (Arts. 321-322, 325-326)
Under Art. 332 of the Code, no criminal, but only civil, liability
shall result from commission of the crime of theft, swindling or mali-
cious mischief committed or caused mutually by spouses, ascendants,

473
Art. 15 ALTERNATIVE CIRCUMSTANCES
Relationship

and descendants, or relatives by affinity in the same line; brothers and

sisters and brothers-in-law and sisters-in-law, if living together.
In view of the provision of Art. 332, when the crime committed
is (1) theft, (2) swindling or estafa, or (3) malicious mischief, relation-
ship is exempting. The accused is not criminally liable and there is no
occasion to consider a mitigating or an aggravating
It is aggravating in crimes against persons in cases where the
offended party is a relative of a higher degree than the offender, or
when the offender and the offended party are relatives of the same
level, as killing a brother (People vs. Alisub, 69 Phil. 362, 364), a
brother-in-law (People vs. Mercado, 51 Phil. 99, 102; People vs.
Mendova, 100 Phil. 811 , 818), a half-brother (People vs. Nargatan,
48 Phil. 470, 472, 475), or adopted brother. (People vs. Macabangon,
63 Phil. 1061-1062

Is relationship not aggravating when the offender killed his brother-

in-law?
Except an admission by the appellant that the deceased was
his brother-in-law, relationship by affinity should not be deemed to
aggravate the crime in the absence of evidence to show that the of-
fended party is of a higher degree in the relationship than that of the
offender. (People vs. Canitan, No. June 29, 1963, 8 SCRA
358, 364)

If the crime against persons is any of the serious physical

injuries, the fact that the offended party is a descendant of
the offender is not mitigating.
When the crime against persons is any of the serious physical
injuries (Art. 263), even if the offended party is a descendant of the
offender, relationship is an aggravating circumstance.
If the offense of serious physical injuries is committed by the
offender against his child, whether legitimate or illegitimate, or any
of his legitimate other relationship is aggravating. But
the serious physical injuries must not be inflicted by a parent upon
his child by excessive chastisement.

Art. 263 provides for a higher penalty "if the offense (any of the
serious physical injuries) is committed against any of the persons

474
 ALTERNATIVE CIRCUMSTANCES Art. 15
Relationship

enumerated in Art. 246." Art. 246, which defines and penalizes the
crime of parricide, enumerates the following persons: father, mother,
or child, whether legitimate or illegitimate, or any of his ascendants
or or spouse.

When the crime is less serious physical injuries or slight physical

injuries, the ordinary rule applies.

But when the offense committed is less serious physical injuries

(Art. 265); or slight physical injuries (Art. 266), relationship is a
mitigating circumstance, if the offended party is a relative of a lower
degree of the offender; and an aggravating circumstance, if the
offended party is a relative of a higher degree of the offender. Both
Art. 265 and Art. 266 do not have provisions to the contrary, as in
Art. 263.

When the crime against persons is homicide or murder, relationship is

aggravating even if the victim the crime is a relative of lower degree.
If the commission of the crime against persons resulted in
the death of the victim who is a relative of a lower degree of the
offender, relationship is an aggravati ng circumstance. This rule
applies when the crime committed is homicide (Art. 249) or murder.
(Art. 248)
Thus, the killing of a st ep d au gh t er by her stepmother is
attended by the circumstance of relationship which is considered as
aggravating. (People vs. Portento, supra) The crime is not parricide,
because the relationship is not by blood and in the direct line; but the
relationship was considered by the Court to aggravate the penalty,
notwithstanding the fact that the victim of the crime was a relative
of a lower degree.

Relationship is mitigating in trespass to dwelling.

Where a son-in-law, believing his wife to be in her father's
house, attempted to force an entry therein, the relationship is to be
considered in mitigation. (U.S. vs. Ostrea, 2 Phil. 93, 95)

Relationship is neither mitigating nor aggravating, when

relationship is an element of the offense.
When the qualification given to the crime is derived from the
relationship between the offender and offended party, it is neither

475
Art. 15 ALTERNATIVE CIRCUMSTANCES
Relationship

mitigating nor aggravating, because it is inseparable from and inher-

ent in the offense.
Examples: Parricide, adultery and concubinage.

In crimes against chastity, relationship is always

aggravat- ing.
In crimes against chastity, like of (Art. 336),
relationship is aggravating, regardless of whether the offender is a
relative of a higher or lower degree of the offended party.
In rape —
Relationship is aggravating in a case where a stepfather raped
his stepdaughter (People vs. De Leon, 50 Phil. 539, 545); or in a case
where a father raped his own daughter. (People vs. 58 Phil.
578-579; People vs. Lucas, G.R. No. 80102, Jan. SCRA
316, 327)

Reason for the difference in the rule.

Why is relationship aggravating in crimes against chastity even
if the offended party is a relative of lower degree?
Because of the nature and effect of the crime committed, it is
considered aggravating although the offended party is a relative of
lower degree. It is not shocking to our moral sense when we hear a
father committed, for instance, the crime of slight physical injury
against his daughter; but it certainly is very shocking when we hear
that a father committed acts of lasciviousness on the person of his
own daughter.

The rule may be different because of the condition

the commission of the crime.
While the relationship of brothers-in-law is aggravating when
one commits a crime against the other, such relationship is mitigat-
ing when the accused killed his brother-in-law in view of the conduct
pursued by the latter in contracting adulterous relations with the
wife of the accused. (U.S. vs. 1 Phil. 30, 32)
Also, in a case where the deceased was suffering from an attack
of insanity and the accused, his brother-in-law, in his desire to place

476
 ALTERNATIVE CIRCUMSTANCES Art. 15
Intoxication

the deceased under control, struck him with a club, exceeding the
limits of his discretion in the heat of the struggle, it was held that
relationship was mitigating because the cause of the maltreatment
was the desire to render service to a relative. (U.S. vs. Velarde, 36
Phil. 991 , 992-993)
The reason for the difference in the rule is the "other condition
attending" the commission of the crime, which in case is
the conduct of the deceased in having adulterous relations with the
wife of the accused; and in the Velarde case, the desire of the accused
to render service to a relative.

Intoxication.
a. Mitigating — (1) if intoxication is not habitual, or (2) if
intoxication is not subsequent to the plan to commit a
felony.
b. Aggravating — (1) if intoxication is habitual; or (2) if
it is intentional (subsequ en t to the plan to commit a
felony).

It is intentional when the offender drinks fully

knowing its effects, to find in the liquor a stimulant to
commit a crime or a means to suffocate any remorse.
Drunkenness or intoxication is mitigating if accidental, not
habitual nor intentional, that is, not subsequent to the plan to commit
the crime. It is aggravating if habitual or intentional. A habitual
drunkard is one given to intoxication by excessive use of intoxicating
drinks. The habit should be actual and confirmed. It is unnecessary
that it be a matter of daily occurrence. It lessens individual resistance
to evil thought and undermines will-power making its victim a
potential evildoer. (People vs. Nos. L-36662-63, July 30,
1982, 115 SCRA 688, 699-700)
For an accused to be entitled to the mitigating circumstance of
intoxication, it must be shown that (a) at the time of the commission
of the criminal act, he has taken such quantity of alcoholic drinks as
to blur his reason and deprive him of a certain degree of control, and
(b) that such intoxication is not habitual, or subsequent to the plan
to commit the felony. (People vs. Boduso, Nos. Sept. 30,
1974, 60 SCRA 60, 70-71)

477
 Art. 15 ALTERNATIVE CIRCUMSTANCES
Intoxication

"When the offender has committed a felony in a state of

in- toxication."
The last paragraph of Art. 15 says the offender has
committed a felony in a state of by which clause is meant
that the offender's mental faculties must be affected by drunkenness.

Evidence for intoxication to be aggravating.

There is no showing of excessive and habitual use of intoxicating
drinks, or that the accused purposely got drunk in order to commit
the crime, where the witness merely declared that the accused were
drinking liquor on the night in question and were telling stories, sing-
ing, laughing, and shouting and were very jolly, although said witness
further testified that the accused used to drink liquor every Saturday
night, such testimony not being competent proof that the accused
are drunkards whose habit is to get drunk, and whose inebriety has
become habitual. In such a case, intoxication is not aggravating but
mitigating. (People vs. Moral, No. Oct. SCRA
474, 488)

The accused's state of intoxication must be proved.

People vs. Noble, 77 Phil. the defendant testified
that before the murder, he took a bottle of wine and drank little by
little until he got drunk. The policeman who arrested the accused
testified that the latter smelled of wine and vomited. The Court held
that the evidence presented was not satisfactory to warrant a mitiga-
tion of the penalty.

Intoxication was likewise not completely proved in a case where

the only evidence was that the defendant had a gallon of tuba with
him at the time he committed the crime. (People vs. Pardo, 79 Phil.
568, 579)

In another case, intoxication was not also proved where the ac-
cused merely alleged that when he committed the offense charged,
he was intoxicated although he was used to be drunk." His self-
serving statement was uncorroborated and was dismissed as devoid
of any probative value. (People vs. Apduhan, Jr., No. Aug.
30, 1968, 24 SCRA 798, 813-814)

To be mitigating, the accused's state of intoxication must be

proved. Once intoxication is established by satisfactory evidence, in

478
 ALTERNATIVE CIRCUMSTANCES
Art. 15
Intoxication

the absence of proof to the contrary, it is presumed to be non-habitual

or unintentional. (People vs. Jr., supra, at 813, citing People
vs. Noble, 77 Phil. 93 and U.S. vs. Fitzgerald, 2 Phil. 419)
The accused merely alleged that when he committed the offense
charged, he was intoxicated although he was "not used to be
This self-serving statement stands uncorroborated. Obviously, it is
devoid of any probative value.
In People vs. Apduhan, Jr., 24 SCRA 798, it was held that to
be mitigating, the accused's state of intoxication must be proved.
Once intoxication is established by satisfactory evidence (People
vs. Noble, 77 Phil. 93), in the absence of proof to the contrary, it is
presumed to be non-habitual or unintentional. (U.S. vs. Fitzgerald,
2 Phil. 419)

Where the court below found that the appellant was under the
influence of liquor in the afternoon immediately preceding the incident
and there is no evidence indicating that he is a habitual drunkard,
the mitigating circumstance of intoxication should be considered in
favor of the appellant. (People vs. Gongora, Nos. July 31 ,
1963, 8 SCRA 472 , 482; People vs. De Gracia, No. Sept. 29,
1966, 18 SCRA 197, 207)

Note: In these cases, there was no evidence that the intoxica-

tion was intentional or subsequent to the plan to commit
the

Drunkenness must affect mental faculties.

The Code says nothing about the degree of intoxication needed
to mitigate; but obviously to produce such an effect, it must diminish
the agent's capacity to know the injustice of his acts, and his will to
act accordingly. (Albert)
The amount of wine taken must be of such quantity as to blur the
offender's reason and deprive him of self-control. (People vs. Cabrera,
CA-G.R. No. June 1, 1956)
Before d r u n k e n n e s s may be considered as a mi ti gati n g
circumstance, it must first be established that the liquor taken by
the accused was of such quantity as to have blurred his reason and
deprived him of self-control. It should be such an intoxication that
would diminish the agent's capacity to know the injustice of his acts,

479
Art. 15 ALTERNATIVE CIRCUMSTANCES
Intoxication

and his will to act accordingly. (People vs. Ruiz, Nos. Oct.
30, 1979, 93 SCRA 739, 760-761)
Thus, if the amount of the liquor the accused had taken was
not of sufficient quantity to affect his mental faculties, he was not in
a state of intoxication. If the accused was thoughtful enough not to
neglect giving Don Vicente Noble his injection, the inference would be
that his intoxication was not to such a degree as to affect his mental
capacity to fully understand the consequences of his act. (People vs.
Noble, 77 Phil. 93, 101-102)

Also, although the accused had taken some liquor on the

day of the shooting, if he was aware of everything that occurred
on that day and he was able to give a detailed account thereof,
intoxication is not mitigating. (People vs. Buenaflor, C.A., 53 O.G.
8879)
And although the persons participating in the act of misap-
propriating public funds may, for some time prior thereto, had been
drinking freely of intoxicating liquor, yet if they were sufficiently sober
to know what they were doing when committing the unlawful act, the
mitigating circumstance of intoxication cannot be considered. (U.S.
vs. Dowdell, 11 Phil. 4

"When intoxication is habitual."

The mere fact that the accused had been drinking intoxicating
liquor about seven months and that he had been drunk once or twice a
month is not constituting habitual drunkenness. A habitual drunkard
is one given to intoxication by excessive use of intoxicating drinks. The
habit should be actual and confirmed, but it is not necessary that it
be continuous or by daily occurrence. (People vs. Amenamen, C.A.,
37 O.G. 2324)

In U.S. vs. McMann, 4 Phil. 561 , 565, a witness testified that

he saw the defendant drunk twelve times or more. Held: He was a
habitual drunkard.

D ru n k e n n e ss was also found to be hab itual where the de-

fendants admitted in open court that before they committed the
crime, they drank for three hours and often had a drinking party.
(People vs. Mab ilan gan , No. Jan. 30 , 1982 , SCRA
398 , 403 )

480
 ALTERNATIVE CIRCUMSTANCES Art. 15
Intoxication

"Or subsequent to the plan to commit a felony."

Illustration:

A decided to kill B. A planned to commit the crime by preparing

the means to carry it out. When he was ready to kill B, A drank a
glass of wine and when already intoxicated, he looked for B and
killed him. Note that A drank wine to intoxicate after he had
planned the commission of the crime. In this case, the intoxication is
intentional.

Intoxication is mitigating where the same was not habitual

nor intentional and the crime was not the offspring of planning and
deliberation but a fatal improvisation dictated by an impromptu
impulse. (People vs. Abalos, No. May 31 , 1974, 57 SCRA
330, 338)

Even if intoxication is not habitual, it is aggravating when

subsequent to the plan to commit the crime.
In a case where the trial court found the commission of the crime
of murder to be attended by the mitigating circumstance that the
accused was drunk, but not habitually so, it was held that it appearing
that the accused, who had plotted the death of the victim, drank
wine in order to embolden himself in the carrying out of his evil plan,
his intoxication cannot be considered as a mitigating circumstance.
(People vs. Hernandez, 91 Phil. 334, 344)

Reasons for the alternative circumstance of intoxication.

As a mitigating circumstance, it finds its reason in the fact that
when a person is under the influence of liquor, his exercise of will
power is impaired.
As an aggravating circumstance, because it is intentional, the
reason is that the offender resorted to it in order to bolster his courage
to commit a crime.
It is aggravating when intoxication is habitual, because the
constant use of intoxicating liquor lessens the individual resistance
to evil thoughts and undermines the will power making himself a
potential evildoer against whose activities, society has the right
for its own protection to impose a more severe penalty. (People vs.
Amenamen, supra)

481
Art. 15 ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of

Presumption is that intoxication is accidental.

The prosecution must prove that the intoxication of the offender
is habitual or intentional. (People vs. Dungka, 64 Phil. 421 , 426)
In the absence of proof to the contrary, it will be presumed that
intoxication is not habitual but accidental, and the fact that the ac-
cused was drunk at the time of the commission of the crime must
then be considered as a mitigating circumstance. (U.S. vs. Fitzgerald,
2 Phil. 419, 422; People vs. Dacanay, 105 Phil. 1265, 1266
citing People vs. Dungka, supra)

Non-habitual intoxication, lack of instruction and obfuscation

are not to be taken separately.
As non-habitual intoxication implies a disturbance of the reason-
ing powers of the offender, his lack of instruction cannot have any
influence over him, and obfuscation which has the same effect on his
reasoning powers cannot be considered independently of non-habitual
intoxication. (People vs. Baterna, 49 Phil. 996, 997-998)
The trial court considered them separately as three distinct
mitigating circumstances and imposed a penalty one degree lower.
The Supreme Court considered them as one mitigating circumstance
only and modified the penalty imposed by the trial court by raising
it and imposing the proper penalty in the minimum period.

Degree of instruction and education of the offender.

Low degree of instruction and education or lack of it is generally
mitigating. High degree of instruction and education is aggravating,
when the offender avails himself of his learning in committing the
crime.

Lack of instruction, as mitigating.

Lack of instruction cannot be taken into account where the
defendant admitted that he studied in the first grade in a public
elementary school. Art. 15 applies only to him who really has not
received any instruction. (People vs. Mangsant, 65 Phil. 548, 552)
But the accused lacks education and instruction, if he did not
finish even the first grade in elementary school. (People vs.
88 Phil. 35, 44)

482
 ALTERNATIVE CIRCUMSTANCES Art. 15
Degree of Instruction and Education of Offender

Lack of instruction is not mitigating where the accused fin-

ished Grade Two and answered in Tagalog, questions put to him
in English. (People vs. Luna, No. July 31 , 1974, 58 SCRA
198, 208)
Having studied up to sixth grade is more than sufficient schooling
to give the accused a degree of instruction as to properly apprise him
of what is right and wrong. (People vs. No. April
29, 1969, 27 SCRA 1185, 1189-1190)

Lack of sufficient intelligence is required in illiteracy.

Not illiteracy alone, but also lack of sufficient intelligence are

necessary to invoke the benefit of the alternative circumstance of
lack of instruction, the determination of which is left to the trial
court.
A person able to sign his name but otherwise so densely ignorant
and of such low intelligence that he does not fully realize the conse-
quences of his criminal act, may still be entitled to this mitigating
circumstance. On the other hand, another person unable to write
because of lack of educational facilities or opportunities, may yet be
highly or exceptionally intelligent and mentally alert that he easily
realizes the full significance of his acts, in which case he may not
invoke this mitigating circumstance in his favor. (People vs. Ripas,
95 Phil. 63 , 70-71; People vs. No. L-35700, Oct. 15, 1973,
53 SCRA 246, 261-262)

Mere illiteracy is not sufficient to constitute a mitigating circum-

stance. There must be also lack of intelligence. (People vs. Retania,
No. Jan. 22, 1980, 95 SCRA 201 , 221; People vs. Abanes,
No. L-30609, Sept. 28, 1976, 73 SCRA 44, 47)

Lack of sufficient instruction is not mitigating when the of-

fender is a city resident who knows how to sign his name.
Appellant is guilty of murder with the qualifying circumstance
of treachery and the aggravating circumstance of evident premedi-
The mitigating circumstance of lack of sufficient instruction
cannot be justified as appellant is a city resident and even knows
how to sign his name. The judgment is modified and appellant is
sentenced to reclusion perpetua. (People vs. Cabrito, 101 Phil. 1253,
1254

483
 Art. 15 ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of Offender

Lack of instruction must be proved by the defense.

The mitigating circumstance of lack of instruction must be
proved positively and directly and cannot be based on mere deduction
or inference. (People vs. Bernardo, C.A., 40 O.G. 1707)
Lack of education must be proved positively and cannot be based
on mere deduction or inference. (People vs. supra, citing
People vs. Bernardo, supra, and People vs. 61 Phil. 64)
Lack of instruction needs to be proven as all circumstances
modifying criminal liability should be proved directly and positively.
(People vs. No. Nov. SCRA 35, 38,
citing People vs. 59 Phil. 154)
In the absence of any basis on record on which to judge the degree
of instruction of the accused, no evidence having been taken relative
thereto because he entered a plea of guilty, the circumstance of lack of
instruction cannot be mitigating. (People vs. Macatanda, supra, at 39)

The question of lack of instruction cannot be raised for the

first time in appellate court.
It is for the trial court rather than the appellate court to find
and consider the circumstance of lack of instruction. (People vs. Sari,
99 Phil. 1040
When the trial court did not make any findings as to the degree
of instruction of the offenders, on appeal that alternative circumstance
cannot be considered in fixing the penalty to be imposed on the ac-
cused-appellants. (People vs. Diaz, No. L-24002, Jan. 21 , 1974, 55
SCRA 178, 187)

The trial court's appreciation of lack of instruction as a mitigat-

ing circumstance was not disturbed on appeal because the said court
was in a position to gauge appellant's level of intelligence from his
appearance, demeanor and manner of answering questions. (People
vs. Manuel, Nos. L-23786-87, Aug. 29 SCRA 337, 346)

Ordinarily, low degree or lack of instruction is mitigating in

all crimes.
Lack of instruction or low degree of it is appreciated as mitigat-
ing circumstance in almost all crimes. (U.S. vs. Reguera, 41 Phil. 506,
 ALTERNATIVE CIRCUMSTANCES Art. 15
Degree of Instruction and Education of Offender

520 [robbery with People vs. No. March

28, 1980, 96 SCRA, 556, 562-563 [Anti-Subversion People vs.
65 Phil. 696, 707 People vs. Hubero, 61 Phil. 64, 66

Exceptions:

1. Not mitigating in crimes against property, such as estafa,

theft, robbery, arson. (U.S. vs. Pascual, 9 Phil. 491 , 495
People vs. De la Cruz, 77 Phil. 444 , 448; People
vs. Melendrez, 59 Phil. 154, 155- 156 People
vs. San Pedro, No. L-44274, Jan. 22 , 1980, 95 SCRA 306,
310 [robbery with People vs. Condemena, No.
L-22426, May 29, 1968, 23 SCRA 910, 920 [robbery with

But in U.S. vs. Maqui, 27 Phil. 97, 101, lack of in-

struction was mitigating in theft of large cattle committed
by a member of an uncivilized tribe of Igorots or in Igorot
land.
But see People vs. Macatanda, No. L-51368, Nov. 6,
SCRA where the accused claimed that
he was a Moslem belonging to a cultural minority, and
the high court said: later cases which categorically
held that the mitigating circumstance of lack of instruction
does not apply to crimes of theft and robbery leave us with
no choice but to reject the plea of appellant. Membership
in a cultural minority does not per se imply being an
uncivilized or semi-uncivilized state of the offender, which
is the circumstance that induced the Supreme Court in the
Maqui case, to apply lack of instruction to the appellant
therein who was charged also with theft of large cattle.
Incidentally, the Maqui case is the only case where lack of
instruction was considered to mitigate liability for theft, for
even long before it, in U.S. vs. Pascual, 9 Phil. 491 , a 1908
case, lack of instruction was already held not applicable
to crimes of theft or robbery. The Maqui case was decided
in 1914, when the state of civilization of the Igorots has
not advanced as it had in reaching its present state since
recent years, when it certainly can no longer be said of
any member of a cultural minority in the country that he
is uncivilized or

485
Art. 15 ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of Offender

In robbery with homicide, where the accused was

illiterate, lack of instruction was held to be mitigating.
(People vs. Patricio, 79 Phil. People vs. Mantawar,
80 Phil. 817, 823)
But in another case, it was held that the benefit of lack
of instruction is unavailing to mitigate the crime of robbery
with homicide as this circumstance is not applicable to
the crime of theft or robbery, and much less to the crime
of homicide. No one, however unschooled he may be, is so
ignorant as not to know that theft or robbery, or assault
upon the person of another is inherently wrong and a
violation of the law. (People vs. Enot, No. Oct.
30, 1962, 6 SCRA 325, 329)
In a later case, also of robbery with homicide, it was
also held that belonging to the cultural minorities cannot
conceivably reduce, from the subjective point of view, the
defendants' awareness of the gravity of their offense, for
robbery and killing are by their very nature just as wrong to
the ignorant as they are to the enlightened. (People vs.
Mania, No. Nov. 30 SCRA 389, 397)

Not mitigating in crimes against such as rape and

adultery. No one is so ignorant as not to know that the
crime of rape is wrong and in violation of the law. (Malesa
vs. Director, 59 Phil. 406, 408; U.S. vs. 9 Phil. 140,
141; People vs. Lopez, 107 Phil. 1039, 1042)

How about in treason?

Not mitigating, because love of country should be a natural
feeling of every citizen, however unlettered or uncultured he may
be. (People vs. Lansanas, 82 Phil. People vs. Cruz, 88 Phil.
684, 687-688)

But in another case, the accused was also charged with treason.
His schooling was confined in studying and finishing caton only. Held:
Lack of instruction is mitigating. (People vs. Marasigan, 85 Phil. 427,
431)

Lack of education and instruction is not mitigating in murder.

Lack of education and instruction cannot mitigate appellant's
guilt because to kill is forbidden by natural law which every rational
486
 ALTERNATIVE CIRCUMSTANCES Art. 15
Degree of Instruction and Education of Offender

being is endowed to know and feel. (People vs. Mutya, G.R. Nos. L-
11255-56, Sept. 30, 1959
Exception:

Although ordinarily lack of instruction is not considered as

an extenuating circumstance in the crime of homicide or murder,
nevertheless, in the instant cases, the same may be so considered
because the crimes would probably not have been committed if the
accused were not so ignorant as to believe in witchcraft. The trial
court likewise did not err in failing to consider the lack of instruction
as mitigating circumstance in the crime of arson as the same does
not extenuate offenses against property. (People vs. Laolao, G.R. Nos.
Oct. 31 , 1959
It is also considered mitigating in murder in the following
case:
The crime was murder qualified by evident premeditation, the
defendants havin g a long time" sought the encounter. There
was also abuse of superior strength — four men with knives against
one unarmed person. But this is compensated by lack of instruction,
these appellants being "ignorant people living in a barrio almost
20 kilometers away from civilization." Consequently, the medium
degree of the penalty for murder — reclusion perpetua — becomes
imposable. (People vs. Mantala, G.R. No. Oct. 31 , 1959)

High degree of instruction, as aggravating.

Examples:
A lawyer, who, with abuse of his education and learning, com-
mits estafa.
A medical student who was convicted of slander by deed. (People
vs. Roque, C.A., 40 O.G. 1710)

Degree of instruction is aggravating when the offender

availed himself or took advantage of it in committing the
crime.
Thus, a doctor, who, using his knowledge, prepared certain
kind of poison to kill his victim in such a way as to avoid detection,
may be considered as having taken advantage of his high degree of
instruction and education.
487
Art. ALTERNATIVE CIRCUMSTANCES
Degree of Instruction and Education of Offender

But the fact that the accused was a lawyer was not considered
aggravating in physical injuries. (People vs. No. 21102-
R, Sept. 29, 1959) He did not take advantage of his high degree of
 Title Two
PERSONS CRIMINALLY LIABLE
FOR FELONIES

Art. 16. Who are criminally liable. — Th e f o l l o w i n g are crimi-

n all y l i ab l e for g r a v e an d l es s g r a v e f e l o n i e s :
1. . Principals .
2. Accomplices .
3. Accessories .
Th e f o l l o w i n g ar e c r i m i n a l l y l i ab l e fo r l i gh t fe l o n i es
:1. Principals .
2. Accomplices .

Treble division of persons criminally liable.

The treble division of persons criminally responsible for an
offense rests upon the very nature of their participation in the com-
mission of the crime.
When a crime is committed by many, without being equally
shared by all, a different degree of responsibility is imposed upon each
and every one of them. In that case, they are criminally liable either
as principals, accomplices, or accessories.

Accessories are not liable for light felonies.

In view of the omission of accessories in naming those liable for
light felonies, the accessories are not liable for light felonies.
Reason: In the commission of light felonies, the social wrong
as well as the individual prejudice is so small that penal sanction is
deemed not necessary for accessories.

489
Art. 16 PERSONS CRIMINALLY LIABLE
FOR FELONIES

Rules relative to light felonies:

Light felonies are punishable only when they have been
consummated. (Art. 7)
2. But when light felonies are committed against persons or
property, they are punishable even if they are only in the
attempted or frustrated stage of execution. (Art. 7)
3. Only principals and accomplices are liable for light felonies.
(Art. 16)
4. Accessories are not liable for light even if they are
committed against persons or property. (Art. 16)

Active subject and passive subject of crime.

In all crimes there are always two parties, namely: the active
subject (the criminal) and the passive subject (the injured party).
Art. 16 of the Code enu merat es the active subjects of the
crime.

Only natural persons can be active subject of crime.

Only natural persons can be the active subject of crime because
of the highly personal nature of the criminal responsibility.
Since a felony is a punishable act or omission which produces or
tends to produce a change in the external world, it follows that only
a natural person can be the active subject of the crime, because he
alone by his act can set in motion a cause or by his inaction can make
possible the completion of a developing modification in the external
world.

Only a natural person can be the offender because —

(a) The Revised Penal Code requires that the culprit should
have acted with personal malice or negligence. An ar-
tificial or juridical person cannot act with malice or
negligence.
(b) A juridical person, like a corporation, cannot commit a
crime in which a willful purpose or a malicious intent is
required. (West Coast Life Co. vs. Hurd, 27 Phil. 401 ,
407-408)

490
 PERSONS CRIMINALLY LIABLE Art. 16
FOR FELONIES

(c) There is substitution of deprivation of liberty (subsidiary

imprisonment) for pecuniary penalties in case of insolvency
of the accused.

The Code requires that the culprit should have acted

with personal or negligence. An artificial
person cannot act with malice or negligence.
A corporation could not have committed a crime
in which a willful purpose or a malicious intent was re-
quired. (West Coast Life Ins. Co. vs. 27 Phil. 401)
There is the substitution of deprivation of liberty
(subsidiary imprisonment) for pecuniary penalties in cases
of insolvency.
(d) Other penalties consisting in imprisonment and other
deprivation of liberty, like destierro, can be executed only
against individuals. (Albert)

Officers, not the corporation, are criminally liable.

A corporation can act only through its officers or incorporators,
and that as regards a violation of the law committed by an officer
of a corporation, in the exercise of his duties, he answers criminally
for his acts, and not the corporation to which he belongs, for being
an artificial person, it cannot be prosecuted criminally. (People vs.
Campos, C.A., 40 Sup. 12, 7)
Criminal actions are restricted or limited to the officials of the
corporation and never against the corporation itself. The
courts derived no authority to bring corporations before them in
criminal actions, nor to issue processes for that purpose. In criminal
cases, defendants are brought before the court through warrants of
arrest, which are issued only against natural persons. (West Coast
Life Ins. Co. vs. Hurd, 27 Phil. 401 , 407-408)

Juridical persons are criminally liable under certain special

laws.
Under Act 1459 (Corporation Law), Com. Act No. 146 (Public
Service Law), the Securities Law, and the Election Code, corporations
may be fined for certain violations of their provisions.

491
Art. 16 PERSONS CRIMINALLY LIABLE
FOR FELONIES

Only the of the corporation who participated either

as principals by direct participation or principals by
induction or by cooperation, or as accomplices in the
commission of an act punishable by law are liable.
The partnership of M, A and B was granted a franchise to
operate an electric plant. C, wife of M, was the manager of the
business. M and his son installed electric wires in the houses of
their customers. A boy who was with his father for the purpose of
buying salted fish happened to hold an uninsulated portion of an
electric wire of the electric plant managed by As the wire was
charged with electricity, the boy was electrocuted and consequently
died.
Held: There is no evidence at all that C directly took part or aided
in the careless installation of the electric wire, a portion of which was
negligently left uninsulated by M and his son.
As a general rule, a director or other officer of a corporation
is criminally liable for his acts, though in his official capacity, if he
participated in the unlawful act either directly or as an aider, abet-
tor or accessory, but is not liable criminally for the corporate acts
performed by other officers or agents thereof.
The ruling enunciated in the case of West Coast Life Co. vs.
Hurd, 27 Phil. 401 , 407-408, to the effect that criminal actions are
restricted or limited to the officials of a corporation and never against
itself, indicates the procedure to be taken in a criminal action when
an official of a corporation is involved, but does not point his degree
of participation in order to hold him liable for a certain criminal act
as such corporate (People vs. Abdona A. Montilla, C.A., 52
O.G. 4327)

Manager of partnership is liable even if there is no

evidence of his participation in the commission of the
offense.
In the prosecution for a violation of Section 170, paragraph 2,
of the National Internal Revenue Code, the manager of the partner-
ship is criminally liable, even in the absence evidence regarding his
direct participation in the commission of the offense. It is a settled
rule that since a corporation or partnership can only act through
its officers and their agents, the president or manager can be held
criminally liable for the violation of a law by the entity. (People vs.
492
 PRINCIPALS IN GENERAL Art. 17

Lao Chio, C.A., 59 O.G. 4859 , citing People vs. Manuel

C.A., 53 O.G. 3276)

Under the Motor Vehicle Law.

The president and general manager of a corporation which

violated the Motor Vehicles Law was held criminally liable for the
offense imputable to the corporation. (People vs. Cartesiano, C.A., 53
O.G. 3276)

Passive subject of crime.

The passive subject of a crime is the holder of the injured right:
the man, the juristic person, the group, and the State.
Thus, while a corporation or partnership cannot be the active
subject, it can be a passive subject of a crime.

Corpse or animal cannot be passive subject.

Reason: The dead and the animals have no rights that may be
injured.

Exception:
Under Art. 353, the crime of defamation may be committed if
the imputation tends to blacken the memory of one who is dead.

Art. 17. — Th e f o l l o w i n g ar e c o n s i d e r e d prin-

ci p al s :
1. . T h o s e w h o ta k e a direc t par t in th e ex ec u ti o n of th
e
act;

2. T h os e wh o d i r e c t l y force o r i n d u c e o th er s t o co mm i
it.

t3. T h os e wh o c o o p e r a t e i n th e c o m m i s s i o n o f th e

of-
fen s e b y a n o t h e r ac t w i t h o u t w h i c h i t w o u l d no t h av e b ee
n accomplished .
493
 Art. 17 PRINCIPALS IN GENERAL

Two or more persons participating in the crime.

When a single individual commits a crime, there is no difficulty
in determining his participation in the commission thereof. In fact, a
single individual committing a crime is always a principal, and one
by direct participation, because he must necessarily take direct part
in the execution of the act.
Thus, when a person kills another, there is no question as to
his participation and liability in the commission of the crime. He is
a principal by direct participation. But when two or more persons
are involved in killing another, it is necessary to determine the
participation of each. If they are all principals, all of them may be
principals by direct participation (par. 1); or one may be a principal
by induction (par. 2); and the other a principal by direct participation;
or one may be a principal by direct participation and the other a
principal by indispensable (par. 3)

of the three types of principals.

A, by promises of price and reward, induced B to kill a person
living on an island far from the mainland. D, the owner of the only
motor boat in the place and knowing the criminal designs of A and
B, offered to transport and actually transported B to the island. Once
there, B alone killed
Although he did not actually participate in the killing of C,
A is a principal, because he directly induced B to kill B is also a
principal, because he took direct part in the execution of the felony by
personally killing D is also a principal, because he cooperated in
the commission of the offense by another act (transporting the actual
killer to the island) without which the commission the offense would
not have been accomplished.

Difference between a principal under any of the three

catego- ries enumerated in Art. and a co-conspirator.
The difference between an accused who is a principal under any
of the three categories enumerated in Art. 17 of the Revised Penal
Code and a co-conspirator who is also a principal is that while the
former's criminal liability is limited to his own acts, as a general rule,
the latter's responsibility includes the acts of his fellow conspirators.
(People vs. Peralta, No. Oct. 29, 1968, 25 SCRA 759, 777)

494
 PRINCIPALS IN GENERAL Art. 17
Principals by Direct Participation Par. 1

PAR. 1. - PRINCIPALS BY DIRECT PARTICIPATION.

who take a direct part in the execution of the

"Take a direct part in the execution of the act."

The principal by direct participation personally takes part in the
execution of the act constituting the crime.

Thus, one who shoots at and kills another or one who burns
the house of another, personally executes the act of killing another
or the act of burning the house of another. He is a principal by direct
participation in the crime of homicide (unlawfully killing another) or
in the crime of arson (maliciously burning another's property).
One who only orders or induces another to commit a crime is
not a principal by direct participation, because he does not person-
ally execute the act constituting the crime. It is the one personally
committing the crime in obedience to that order or because of the
inducement, who is the principal by direct participation.
A common-law wife who induced the killing of another common-
law wife of her husband by giving money to the killer is a principal
by induction, while the killer is a principal by direct participation.
(People vs. Lao, No. Jan. 28, SCRA 42, 46-47, 51)

Two or more offenders as principals by direct participation.

Two or more persons may take direct part in the execution of the
act, in which case they may be principals by direct participation.
Two or more persons who took part in the commission of the
crime are principals by direct participation, when the following req-
uisites are present:
That they participated in the criminal resolution;
2. That they carried out their plan and personally took part
in its execution by acts which directly tended to the same
end. (People vs. Ong Lay, 60 Phil. 788, 790; People
vs. 44 Phil. 38, 45-46)
Thus, where the two accused each inflicted a serious wound
which contributed to the death of the victim, they are co-principals.
(People vs. Cagod, No. Jan. 18, 1978, 81 SCRA 110, 118)
495
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

First requisite — Participation in the criminal resolution.

Two or more persons are said to have participated in the criminal
resolution when they were in conspiracy at the time of the commission
of the crime.
It is well-settled that a person may be convicted for the criminal
act of another where, between them, there has been conspiracy or
unity of purpose and intention in the commission of the crime charged.
(People vs. G.R. No. 44414, Jan. SCRA
citing People vs. 77 Phil. 664; People vs. Serrano,
May 136 SCRA 899)

Conspiracy.
A conspiracy exists when two or more persons come to an agree-
ment concerning the commission of a felony and decide to commit it.
(Art. 8, par. 2)
The conspiracy contemplated in the first requisite is not a felony,
but only a manner of incurring criminal liability.

To be a party to a conspiracy, one must have the intention to partici-

pate in the transaction with a view to the furtherance of the common
design and purpose.
In order to hold an accused guilty as co-principal by reason of
conspiracy, it must be established that he performed an overt act in
furtherance of the conspiracy, either by actively participating in the
actual commission of the crime, or by lending moral assistance to
his co-conspirators by being present at the scene of the crime, or by
exerting moral ascendancy over the rest of the conspirators as to move
them to executing the conspiracy. (People vs. No.
May 31 , 1974, 57 SCRA 308, 316, citing People vs. Peralta,
Oct. 29, 1968, 25 SCRA 759, 777; People vs. No.
Oct. 28, 1974, 60 SCRA 303 , 318)

Mere knowledge, acquiescence, or approval of the act without

cooperation or agreement to cooperate is not enough to constitute one
a party to a conspiracy, but that there must be intentional participa-
tion in the transaction with a view to the furtherance of the common
design and purpose. (People vs. 104 Phil. 690, 697-698, citing
15 C.J.S. 1062; People vs. Cortez, supra; Taer vs. Court of Appeals,
G.R. No. 85204, June 18, 1990, 186 SCRA 598, 604)
496
 PRINCIPALS IN GENERAL
Art. 17
Principals by Direct Participation
Par. 1

Silence does not make one a conspirator.

Silence is not a circumstance indicating participation in the same
criminal design. (People vs. Gensola, No. Sept. 29
SCRA 483 , 489)

Conspiracy transcends companionship.

It has been held that conspiracy transcends companionship.
Hence, the fact that the two accused may have happened to leave
together, and one of them left a closing warning to the victim, cannot
instantly support a finding of conspiracy. (People vs. Padrones, G.R.
No. 85823 , Sept. 13, 1990, 189 SCRA 496, 506-507)

Existence of conspiracy.
The existence of conspiracy does not require necessarily an
agreement for an appreciable length of time prior to the execution of
its purpose, since from the legal viewpoint, conspiracy exists if, at
the time of the commission of the offense, the accused had the same
purpose and were united in its execution. (People vs. Binasing, et
98 Phil. 908)

Conspiracy arises on the very instant the plotters agree, expressly

or impliedly, to commit the felony and forthwith decide to pursue it.
Once this assent is established, each and everyone of the conspirators
is made criminally liable for the crime actually committed by anyone
of them. (People vs. Monroy, 104 Phil. 759, 764; People vs. G.R.
No. 44414, Jan. 18, 1990, 181 SCRA 133, 148)

Proof of conspiracy.
a. The direct evidence of conspiracy may consist in the inter-
locking extrajudicial confessions of several accused and
the testimony of one of the accused who is discharged and
made a witness against his co-accused who did not make
any confession.
In the absence of collusion among the declarants, their
confessions may form a complete picture of the whole situ-
ation and may be considered collectively as corroborative
confirmatory of the evidence independent therefrom.
(People vs. Castelo, No. May 30, 1964, SCRA
193, 221-222)

497
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

Two or more extrajudicial confessions given sepa-

rately, untainted by collusion, and which tally with one
another in all material respects, are admissible as evidence
of the conspiracy of the declarants. (People vs. Bernardo,
et C.A., 57 O.G. 8675)
To establish conspiracy, it is not essential that there be
proofs as to the previous agreement and decision to commit
the crime, it being sufficient that the malefactors shall have
acted in concert pursuant to the same objective. (People vs.
San Luis, 86 Phil. 485, 497; People vs. Carpio, G.R. Nos.
82815-16, Oct. 31 , 1990, 191 SCRA 108, 118; People vs.
Cruz, Jr., G.R. No. 86217, Oct. 31 , 1990, 191 SCRA 127,
135; People vs. Sazon, G.R. No. 89684, Sept.
SCRA 700, 713)

Formal agreement or previous acquaintance among

several persons not necessary in conspiracy.
In conspiracy, no formal agreement among the conspirators is
necessary, not even previous acquaintance among themselves; it is suf-
ficient that their minds meet so as to bring about an
intelligent and deliberate agreement to commit the offense charged.
It is sufficient that at the time of the aggression, all the accused
manifested by their acts a common intent or desire to attack so that
the act of one accused becomes the act of all. (People vs. Gupo, G.R.
No. 75814, Sept. 24, 1990, 190 SCRA
Conspiracy need not be proved by direct evidence. It need not be
shown that the parties actually came together and agreed in express
terms to enter into and pursue a common design. The assent of the
minds may be and, from the secrecy of the crime, usually inferred
from proof of facts and circumstances which, taken together, indicate
that they are parts of some complete whole. If it is proved that two
or more persons aimed, by their acts, at the accomplishment of the
same unlawful object, each doing a part so that their acts, though
apparently independent, were in fact connected and cooperative,
indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting
among them to concert ways and means is proved. (People vs. Mateo,
Jr., G.R. Nos. 53926-29, Nov. 13, 1989, 179 SCRA 303 , 320, citing
People vs. Carbonell, 48 Phil. 868)

498
 PRINCIPALS IN GENERAL Art. 17
Principals by Direct Participation Par. 1

Thus, when it is shown that all the accused were already armed
when they met, and that they went together in a jeep to the place where
they robbed the house of the offended party and raped his maids, their
conspiracy is implied. Their conspiracy is implied, notwithstanding
the claim of some of the accused that their participation therein was
only of having accompanied the other accused who had requested
them to show the house of the offended party. (People vs. Garduque,
G.R. No. July 31 , 1958

Conspiracy is shown where the offenders were all present at

the scene of the crime, acted in concert in attacking the victims,
assaulting and beating them up and chasing them and stabbing
them and in divesting them of their watches, gold rings and money,
and after the bloody were done, they fled from the scene and
went their separate ways. By their concerted actions, they showed
that they acted in unison and cooperated with each other towards
the accomplishment of a common felonious purpose which was to rob
and kill the victims. (People vs. Catubig, G.R. No. 71626, March 22,
SCRA 505, 516; People vs. Carcedo, G.R. No. 48085, June
SCRA 503 , 517)

Conspiracy must be established by positive and conclusive

But while conspiracy may be implied from the circumstances
attending the commission of the crime, it is nevertheless a rule that
conspiracy must be established by positive and conclusive evidence.
(People vs. 66 Phil. 638, 644)
The same degree of proof necessary to establish the crime is
required to establish a finding of criminal conspiracy, that is, proof
beyond reasonable doubt. It cannot be established by conjectures but
by positive and conclusive evidence. Since conspiracy must be proved
beyond peradventure of a doubt, it follows that it cannot be appreci-
ated where the facts can be consistent with the of
the accused in the fancied cabal. (People vs. G.R. Nos.
90191-96, Jan. 28, 1991, 193 SCRA 471 , 481; People vs. Cruz, G.R.
No. 74048, Nov. 14, 1990, 191 SCRA 377, 384)
Thus, where the defendant satisfactorily explained his pres-
ence with the group that committed the robbery, he cannot be
considered a conspirator. (People vs. Rico, CA-G.R. No.
Jan. 12, 1950)

499
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

Thus, too, mere presence at the scene of the crime at the time
of its commission is not by itself sufficient to establish conspiracy.
(People vs. Taaca, G.R. No. 35652, Sept. 29, 1989, 178 SCRA 56,
70)
In order to hold an accused guilty as co-principal by reason of
conspiracy, it must be established that he performed an overt act in
furtherance of the conspiracy, either by actively participating in the
actual commission of the crime, or by lending moral assistance to
his co-conspirators by being present at the scene of the crime, or by
exerting moral ascendancy over the rest of the conspirators as to move
them to executing the conspiracy. (People vs. Peralta, No.
Oct. 29, 1968, 25 SCRA 759, 777)

When there is no conspiracy, each of the offenders is

liable only for the act performed by him.
When policeman approached and Terencia
who were quarreling and told them to stop the fight, Guarino stabbed
Machica and ran away. Policeman Campos who pursued Guarino
overtook the latter and took him to the municipal building where
policeman Boco hit Guarino. Then, Chief of Police Castillo came and
shot to death Guarino in the presence of Machica, Campos and Boco
who had inflicted serious physical injuries on Guarino.

There was no competent proof that Machica, Campos and Boco

wanted or intended to kill Guarino. There was no previous indica-
tion that Castillo intended to kill Guarino. Castillo just drew out
his gun and fired, and Machica, Campos and Boco could not have
stopped it even if they wanted to. There being no conspiracy or
unity of purpose and intention among the four, Machica, Campos
and Boco did not participate in the criminal resolution of Castillo.
Only Castillo who shot Guarino to death was found guilty of murder
qualified by treachery. Machica, Campos and Boco were held liable
for serious physical injuries only. (People vs. Castillo, 103 Phil.

In the crime of homicide, immediate participation in the

nal design entertained by the slayer is essential to the responsibility
of one who is alleged to have taken a direct part in the killing, but
who has not himself inflicted an injury materially contributing to the
death. (People vs. 44 Phil. 38, 46)

500
 PRINCIPALS IN GENERAL Art. 17
Principals by Direct Participation Par. 1

Participation in criminal resolution essential.

It is not enough that a person participated in the assault made
by another in order to consider him a co-principal in the crime com-
mitted. He must also participate in the criminal resolution of the
other.

The cooperation which the law punishes is the assistance which

is knowingly or intentionally given and which is not possible without
previous knowledge of the criminal purpose. (People vs. Cruz, G.R.
No. 74048, Nov. 14, 1990, 191 SCRA 377, 385)

People vs. Ortiz and Zausa

(55 Phil. 995)

Facts: Sotero the deceased, and accused Ortiz and Zausa

had known one another for many years at the time the crime was com-
mitted, for his wife and that of Ortiz were sisters. About noon September
8, 1930, the deceased accompanied by three laborers, companions of
his, was returning from a plantation belonging to Pio Brionson carry-
ing some corn he had gathered; on reaching the house preceding that
of the accused, as he felt thirsty, he attempted to ask the occupants
for water, but as they happened to be absent, he went to the house of
the accused, and while in front of the house called out to Ortiz for a
drink of water. The latter answered from within that they had no water
and could not serve him, to which the deceased replied: we not
drink your water?" Ortiz rejoined, "But we have no water. How can
you compel us to give you some water?" And immediately afterwards
he descended from the house carrying his shotgun, which he pointed
at the deceased. When the latter saw the aggressive attitude of Ortiz,
he flung himself upon him, caught hold of the weapon, and they both
struggled for it. At this juncture, Modesta Zausa, companion of
Ortiz, took a spear from within the house, rushed down and with it
attacked the deceased stabbing him on the left side of the abdomen, so
that the intestines protruded. (Dying declaration) The deceased fell to
the ground unconscious, was assisted, and that night died of peritoni-
tis.
Held: The defense contends that Ortiz should be acquitted,
because he did not take part in the attack made by Modesta Zausa,
and because, according to the facts, there was no previous agreement
between them to commit the crime. In this we believe the defense is
right. It has been indisputably shown by the ante mortem statement
(Exhibit D) that while the deceased and Ortiz were struggling for the
shotgun, Modesta Zausa caught up the spear, hurried downstairs, ap-

501
 Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

proached the deceased, and suddenly stabbed him with it. From this,
it appears that there was no plan or agreement between them to carry
out the attack which ended in the death of the victim, and that from
the time Modesta Zausa thought of wounding the deceased to the time
she actually did so, barely a few seconds elapsed, and this interval is
palpably insufficient to give rise to the criminal agreement alleged in
the information.

In the United States vs. Magcomot, 13 Phil. it was held:

"In the absence of a previous plan or agreement to commit a crime
the criminal responsibility arising from different acts directed against
one and the same person is individual and not collective, and each of
the participants is liable only for the acts committed by
In the United States vs. Reyes and Javier, 14 Phil. 27 (Syllabus),
one of the defendants, named Reyes, suddenly and unexpectedly
inflicted certain mortal wounds with his club upon one Legaspi, while
the latter was being held by Javier, the other defendant. It was held:
"That Javier was neither principal nor accomplice in the commission
of the crime of homicide of which Reyes was convicted, it appearing
that there was no concerted action between him and his co-defendant,
that he had no reason to believe that a homicidal attack was about to
be made, and that, in holding Legaspi, he was voluntarily cooperating
therein."
In these cases, there was no anterior conspiracy. There was no
unity of purpose and intention immediately before the commission of
the crime. Hence, their criminal responsibility is individual.
In the absence of concerted action pursuant to a common criminal
design, each of the accused, is responsible only for the consequences
of his own acts.

Thus, in a case where one accused inflicted the mortal wound

by stabbing the victim with a knife while the other two assailants
merely hit the victim with a bamboo on the left arm and the head,
the former was held guilty of murder while the latter was held liable
only for or slight physical injuries. In still another case
where two persons attacked a single victim, one inflicting a fatal
wound hacking the victim with a almost amputating the left
arm completely, while the other also using a bolo, struck the victim
just below the armpit causing a wound that would heal in ten (10)
days, the one who inflicted the mortal wound was convicted of murder

502
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Principals by Direct Participation Par. 1

while the other, only of less serious physical injuries. Jr.

vs. Court of Appeals, G.R. No. 43527, July 3, 1990, 187 SCRA 123,
133)

No conspiracy, as shown by the acts of the defendant.

Prosecution wi tn ess testified that after the appellant had
stabbed the deceased, he immediately ran away, so that when his
brother cut off the head of the deceased, the appellant was
no longer present. If the appellant had agreed with his brother to
liquidate the deceased, instead of fleeing after he had stabbed the
latter on the arm, he would have stayed and finished the deceased by
himself or with Mauricio. The mere act of the appellant in stabbing
the deceased once cannot conclusively prove conspiracy. It results
that the appellant should be held answerable only for his individual
act. (People vs. Quiosay, 103 Phil. 1160-1161
The gunshot wound inflicted by one of the accused being slight
which did not cause the death of the victim nor materially contribute
to it in order that he may be held liable for homicide, his liability is
limited to the slight injury he caused. Since the use of a gun fired
at another shows intent to kill, he is liable for attempted homicide
and not merely for slight physical injury. (Araneta, Jr. vs. Court of
Appeals, supra, at 133-134)
The spontaneity of the respective reactions of several accused,
resulting in an attack where they all participated, rules out the
existence of conspiracy. Their respective liabilities shall be determined
by the nature of their individual participations in the felonious act.
Thus, two of them who cooperated in the execution of the offense
by simul taneous acts which, although not indispensable to the
commission of the offense, bore a relation to the acts done by the
principals and supplied material or moral aid in the execution of
the crime in an efficacious way, aware of the criminal intent of the
principals, are liable only as accomplices. (People vs. Lacao, Sr., G.R.
No. 95320, Sept. 4, 1991, 201 SCRA 317, 329, 330-331)
The fact that two of the appellants were standing behind their co-
appellant when the latter fired shots at the did not make them
liable for the act of the latter, there being no proof of any conspiracy
among the three. They were not armed. They did nothing to help
their co-appellant. Their mere passive presence at the scene of the

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Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

crime did not make them liable either as co-principals or accomplices.

(People vs. Madera, No. May 31 , 1974, 57 SCRA 349, 355)

Conspiracy shown by circumstances.

Before the commission of the crime, Nelson drew aside
and said, "It is a good thing that you are here, because we are planning
an idea (sic) to kill while Norman said, "let us stab
Jesus Varela." Sumpay protested: "Why should we stab him when I
do not even know him and he has no fault?" and Norman (now ap-
pellant) retorted: "Just go with me because he has committed a fault
against me."
Held: The presence of both brothers at the place and time of
the attack on Varela; their remark to Sumpay just before the crime
was committed; the assault on the deceased by Nelson Vinas, who
had no personal reason to bear any grudge against said Varela, were
circumstances showing that both brothers had conspired to carry out
the killing. (People vs. Vinas, No. October SCRA
682, 687)
These are telltale indicia of a community of design to kill: close
relationship among the three accused brothers and nephew; their
common desire to avenge the wrong done to their father (grandfather
in the case of the third accused); their going together to the latter's
house at lunchtime all armed; their concerted beating of the victim;
their act of bringing him to the yard of one of the brother's house, with
said brother dragging the victim and the other two accused, father
and son, thrusting their rifles at his body, thus showing that he was
their common captive; and their presence at the yard when policemen
arrived thereat to investigate the killing. (People vs. Manzano, Nos.
L-33643-44, July 31 , 1974, 58 SCRA 250, 259)
There was conspiracy under these facts: the four accused were
together in the yard of the victim's house when one of them called
him and deceived him as to their purpose in awakening him at three
o'clock in the morning. They were together when they rushed inside
his house. As if implementing a previously rehearsed plan, two of
them assaulted him, the third took the money, and the fourth stood
guard. They left the house together after they had accomplished their
malevolent mission. The four appellants were linked to each other
by friendship or some sort of relationship. (People vs. No.
L-27974, Feb. 27, 1976, 69 SCRA 427, 443)

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Art. 17
Principals by Direct Participation
Par. 1

Conspiracy may be shown by the appellants' actuations imme-

diately prior to, during, and right after the shooting of the victim,
as when they were not merely present at the scene of the crime but
were positively identified as among the armed men who arrived there,
shot the victim, and left together after accomplishing their purpose,
notwithstanding that they were not active participants in the killing
itself, but made no effort to prevent it, and in fact, drew their guns
that were tucked on their waists when the victim, after being shot
for the first time, tried to run. (People vs. Umbrero, G.R. No. 93021 ,
May 8, SCRA 821 , 829-830)

People vs. Timbol

(G.R. Nos. 47471-47473, Aug.

Facts: Gregorio Timbol, Timbol, Dalmacio Timbol and

Geronimo Buan were accused of the complex crime of assault upon an
agent of authority with murder.
The accused were armed and were menacingly pressing their
demand for the approval of the 60-40 participation in the mill, which
had been denied by the Board of Directors of Pasudeco. Subsequently,
Capt. Olivas who was then present, said that, as peace officer, it was
his duty to give De Leon and Gonzales protection. Gregorio Timbol drew
his gun and shot Capt. Olivas at his back. Gregorio Timbol then shot
De Leon. Buan shot Gonzales. Carmelino with teargas gun planted
himself at the door out of the room to forestall any help that might be
attempted on behalf of the victims. Dalmacio Timbol was not present
during the shooting, because when his confederates were in the threat-
ening attitude, he left the room.
Held: The conspiracy in the instant case appears conclusively
to have been proved by the following circumstances: (1) On July 2,
1939, Gregorio invited Buan to a "good time" in Manila. (2) On July
6, Gregorio and Carmelino came together to Manila. Gregorio bought
a teargas gun. He wrote a special delivery letter inviting Dalmacio to
see him without fail on July 8, the same date indicated to Buan. (3) On
the appointed date, July 8, the four accused came together to Manila.
(4) All of them carried firearms fully loaded. (5) Together, the four ac-
cused occupied one room in the Central Hotel and threw themselves
into an orgy; dancing, drinking, gambling, and hiring prostitutes, all
the expenses having been defrayed by Gregorio. (6) The four accused,
again together, returned to Pampanga on July 12, and upon reaching
San Fernando, together they went to the Pikes Hotel to embolden
themselves with whisky. (7) About half an hour later and after making

505
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

a redistribution of firearms among themselves, all of them together

left the hotel, went to the Pasudeco offices, and entered the office of
the President, Jose de Leon. (8) After a discussion with De Leon and
Gonzales, accused Gregorio Timbol ordered them not to leave the office
until his petition for a 60-40 participation shall have been acted upon
favorably. (9) When the three victims were killed, the three accused
fled, again together.
All these circumstances demonstrate conspiracy.

Conspiracy is implied when the accused had a common

pur- pose and were united in its execution.
There is unity of purpose and unity of execution establishing
conspiracy in this case: (1) a slapping incident preceded the shooting,
wherein the deceased slapped the face of one of the appellants; (2)
before the two groups could engage in a physical clash, they were
pacified by the carinderia owner who later flagged a taxicab for the
three accused; (3) the three boarded the taxicab leaving with the
slapped accused's parting words, "Pare hintay kayo, babalik
(4) they then proceeded to Greenhills arriving at the post
of a security guard whom they persuaded to lend them his carbine;
(5) in borrowing the gun, they all signed the logbook and when
the carbine was being handed to them, they were grabbing it; (6)
after receiving the gun, they again boarded the same taxicab and
returned to the carinderia; (7) upon arrival, gunshot were fired from
the taxicab with the three accused on board, hitting the victims; (8)
after having fired at the victims, the three returned the weapon, and
proceeded to the headquarters of the Security and Protective
Agency, to which they belonged, where they narrated the incident.
(People vs. G.R. Nos. 41490- 92 , Oct. 18, 1990, 190 SCRA
595, 612)

People vs. Delgado

(77 Phil. 11)

Facts: While Bragat and Ramon Chavez were occupying

a table in a store, the three accused arrived. All of a sudden, accused
Juanito Trinidad gave Bragat a fist blow on the back of his neck fol-
lowed by another to the mouth which blows sent him to the ground. In
the meantime, accused Edwin Delgado held Chavez by the shirt and
accused Ricardo Villanueva joined in hitting Bragat. Bragat tried to
run away, but he was overtaken by the three accused, was boxed by
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Principals by Direct Participation
Par. 1

Delgado, and the three accused trampled on Bragat's body. The ap-
pearance of the police made the three accused run away.
Held: The community of purpose on the part of the three accused
is plainly inferable from these circumstances: (1) The three accused
came together to the scene of the occurrence; (2) While accused Trinidad
struck the first blow, accused Delgado held Chavez, and accused
unsuccessfully attempted to hit Bragat; (3) As Bragat tried
to run away, he was pursued by the accused who trampled on his body
after he had been boxed by Delgado; (4) The three accused together left
Bragat unconscious on the ground and, together also, they went to the
house of Pepe

Unity of purpose and intention in the commission of the crime

is shown in the following cases:
a. Spontaneous agreement at the moment of the commission of
the crime is sufficient to create joint responsibility. (People
vs. Allado, 43 O.G. 1717, citing People vs. Caballero, 53
Phil. 585)
Example:
Thus, where the deceased challenged the two accused,
who accepted, assaulted and killed the challenger, it was
said that the acceptance of the challenge by the two accused
and their concert of attack clearly showed a community of
purpose and design. (People vs. 77 Phil. 664, 665-
667, citing Viada, Dec. of June 13, 1904)
b. Active cooperation by all the offenders in the perpetration
of the crime will also create joint
(1) On the occasion of a huego de anillo, where a number
of people was present, A stepped up behind the
deceased and struck him on the back of the head
with a piece of wood. The deceased reeled under the
blow and turned inclining backwards. While in this
attitude, the deceased was struck on the upper lip
with a whip in the hands by B. At this moment, C
seized the deceased by the left hand and D seized him
by the right. While the deceased was still inclining
backwards with his hands held fast by C and D, E
placed himself in front of the deceased and plunged a

507
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

knife into the body of the latter. The injury inflicted

by E was almost instantly fatal, the deceased dying
immediately without speaking a word.
Held: There was no proof sufficient to establish
anything like an anterior But the manner
in which the accused cooperated in the perpetration
of the homicide shows that they were moved by
a common motive and that their intention was to
accomplish the death of the deceased.

Dissenting: There was only individual responsi-

bility in this case.
When A gave the d eceased the first blow,
producing a mere bruise, when B dealt him the second
blow, producing another slight bruise, when C later
held the deceased by one arm and D by the other,
there was yet nothing to indicate to them that there
was another who sought to do away with the deceased;
for it was subsequent to all these that E who came
from behind them all, placed himself in front of the
deceased and gave him the mortal blow. None of the
other accused did anything more after E had stabbed
the victim.

No participation in criminal design when the

act of one came so close upon the heels of that of the
other.
Reason: He had no time to see that the other
intended to cause the deceased the wound he did.
(People vs. Manalo, 52 Phil. 484 , 489-490)

per se is not a badge of conspiracy,

absent the requisite concurrence of wills. It is not
sufficient that the attack is joint and simultaneous;
it is necessary that the assailants are animated by
one and the same purpose. Evidently, in a situation
where the assaults were not simultaneous but succes-
sive, greater proof is demanded to establish concert
of criminal design. (People vs. No.
June 30, 1967, 20 SCRA 549, 555)

508
 PRINCIPALS IN GENERAL Art. 17
by Direct Participation Par. 1

(2) People vs. Macabuhay, 46 No. 11.

Facts: A, B, C, D, and E were in the house of F.
Someone threw a stone towards that house. Then,
all the five marched to the residence of G, 40 yards
away, to avenge the stone-throwing. In the house of
G, they found the deceased. Suspecting the deceased
as the person who threw the stone, the four of them
suddenly seized and held fast the said victim and
the 5th stabbed the victim who died thereafter. The
common motive is to avenge the stone-throwing.

Held: A, B, C, D, and E were all liable as prin-

cipals by direct participation for the death of the
deceased.
(3) People vs. Cruz, Jr., G.R. No. 86217, Oct. 31 , 1990,
191 SCRA 127, 135.
The fact of conspiracy is well-established where
one of the appellant's companions announced the
holdup while the rest took the personal effects of the
victims, the appellant himself drawing out a bladed
weapon and proceeding to rob the victims as well.
(4) People vs. Carpio, G.R. Nos. 82815-16, Oct.
191 SCRA
Conspiracy is manifested in the coordinated acts
of the assailants, of one of them holding the hand of
the victim while another was stabbing him and a
third delivering fist blows on different parts of the
body of the victim, and, when the victim was able to
escape, of giving chase and the first accused shooting
the deceased five (5) times.
Contributing by positive acts to the realization a common
criminal intent also creates joint
(1) People vs. Agbuya, 57 Phil. 238.
For several years, marked enmity existed be-
tween two families, the Palisocs and Agbuyas. A and
D belonged to the Agbuya family, while C belonged
to the Palisoc family.

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 PRINCIPALS IN GENERAL
Principals by Direct Participation

A, preparatory to the commission of the crime,

cleaned his shotgun. While cleaning his shotgun, A
inquired from D whether he had seen Later, A
carried the gun from his house to a certain place ac-
companied by his son D to look for In that place,
D waited for C and, when the latter was coming, A
handed his shotgun to D. D fired at C, killing him
then and there. Is A liable as principal or merely as
an accomplice?
Where the homicide was committed by the act of
one of the two accused in shooting the deceased with
a gun which was supplied by his co-accused, father of
the actual slayer, and where it also appeared that the
latter contributed to the commission of the homicide
by various other significant acts, it was held that both
father and son were properly convicted as principals
in the
There was a common criminal intent in this case,
because there was bad blood between the Agbuyas
and the Palisocs and the father and son took common
cause.
People vs. Mancao, 49 Phil. 887.
The accused Mancao was the instigator
and aggressor, Roberto Villela having done nothing
but to defend himself, first disarming the former of
his stick with which he was assaulted, and later of his
bolo which he used after having been deprived of his
stick. Roberto Villela might have had the advantage
in the fight had not one of Crispino Mancao's laborers
come to his rescue, upon his cry for help, and struck
Roberto Villela on the thigh; then another man of
Mancao struck Roberto Villela several times on the
left knee, and, lastly, the accused Aguilar
struck Roberto Villela several blows on the back with
his sickle, one of which nearly severed his spine in
the lumbar region which later caused his death.

Held: While it is true that the wounds which

caused Roberto Villela's death were not inflicted
by Crispino Mancao but by his co-accused Ciriaco

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Art. 17
Principals by Direct Participation
Par. 1

Aguilar, yet said Crispino Mancao, having been

the instigator and aggressor and having called his
harvesters to his aid, among them the said Ciriaco
Aguilar, wanted them to carry out, as in fact they did,
the criminal act started by him and, therefore, he is
liable not only for his own acts, but also for the acts
of those who aided him.

Mancao contributed the following positive acts:

(1) his being the instigator, (2) his being the aggres-
sor, and (3) his having called his harvesters.
The common criminal intent is shown by the
unity of purpose and intention of all the offenders.
d. Presence during the commission of the crime by a band and
lending moral support thereto, also create joint responsibil-
ity with the material executors.

(1) U.S. vs. 1 Phil. 165.

There were 7 defendants in this case. They had
conducted the deceased to a certain place and there,
by order of A and B, the deceased was killed by C, D
and F and G posted themselves with A and B at
some distance to watch the approach of any one, in
order to prevent the discovery of the crime.
Held: All of them by previously concerted ac-
tion, met together and witnessed the capture and
later, the violent killing of the deceased. Some took
a direct part in the actual commission of the crime,
others were determined instigators who induced the
former to commit it, while the remainder cooperated
in the same by their presence and lending their moral
support. The four who were not the actual perpetra-
tors thereof, witnessed the commission of the crime,
lending to the murderers their moral support and,
therefore, all are thus directly responsible for the
consequences and incidents of the same.
(2) U.S. vs. Santos, 2 Phil. 453.
Facts: A band composed of some 25 men suc-
ceeded in capturing 5 American soldiers and subse-

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Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

quently took them to a certain place and detained

them in a house there. Five of the band, among them
the accused, subsequently took the Americans from
the house in which they were living and led them
away. The Americans were killed by two members of
the band in the presence of the accused and the other
three of the same
Held: It is of no importance that the accused
did not himself strike the blow or blows by which
the prisoners were killed. It is sufficient that he was
present at the place the commission of the act, aug-
menting with his arms and presence the power of the
band, thus aiding the common act of all, for him to
be considered as a principal by direct participation
in the crime prosecuted.
Note: There is a band in these cases. This cir-
cumstance is presumptive of a previous understanding
between one offender and the others who formed the
band, whereby he voluntarily lent his assistance of
thought and action for the realization of the criminal
object, increasing at least with his personal coopera-
tion, in an effective manner, the offensive strength of
said band. (U.S. vs. 4 Phil.
Conspiracy is presumed when the crime is com-
mitted by a band.
Where the accused was a member of a band that
appeared at the house of the deceased for the purpose
of killing the latter, as he was in fact killed by two
of the shots fired by some members of the band, the
accused is liable for the resulting homicide although
there was no evidence that he fired a shot at the
deceased. (U.S. vs. Asilo, 4 Phil. 176; U.S. vs.
Perez, 13 Phil. 287, 291)

But where at the start of the encounter between

the constabulary forces and an insurgent band, the
accused, who was with the band, fled from the scene
of the fight and did not take part therein, he is not
criminally liable. (U.S. vs. 4 Phil. 522, 525)

512
 PRINCIPALS IN GENERAL Art. 17
Principals by Direct Participation
Par. 1

Where the robbery was committed by a band, all

the members of the band are presumed to be conspira-
tors or co-principals also in the assaults committed by
the band unless he who claims to be a non-conspirator
proves that he attempted to prevent the assault. In
the absence of a showing that appellants attempted
to prevent the killing of the victim, they are equally
guilty of his death at the hands of their companions.
(People vs. Bazar, No. June 27, 1988, 162
People vs. Cinco, G.R. No. 79497, Feb.
27, 1991, 194 SCRA 535, 543)

e. Where one of the accused knew of the plan of the others to

kill the two victims and he accepted the role assigned to
him, which was to shoot one of the victims, and he actually
performed that role, he is a co-principal by direct participa-
tion in the double murder. (People vs. De la Cruz, 100 Phil.
624, 632-633)

There may be conspiracy even if there is no evident premedi-

tation on the part of the accused.
Although the presence of 10-year-old child, and
the fact that appellants were unarmed may indicate lack of evident
premeditation on their part, these circumstances and the do
not necessarily negate the existence of conspiracy for the same does
not require necessarily an agreement for an appreciable time prior
to the occurrence. From the legal viewpoint, conspiracy exists if, at
the time of the commission of the offense, the accused had the same
purpose and were united in its execution. (People vs. Binasing, 98
Phil. 902, 908, citing U.S. vs. Ancheta, 1 Phil. 165; U.S. vs. Santos, 2
Phil. 453; People vs. Mandagay, 46 Phil. 838; People vs. Agbuya, 57
Phil. 238; People vs. 77 Phil. 664; People vs. Macabuhay, 83
Phil. 464; People vs. San Luis, 86 Phil. 485)

Liability of participants where there is conspiracy.

Where there is conspiracy, the act of one is the act of all. There
is collective criminal responsibility.
Where it appears that the defendants, after conspiring together
to kill the deceased, went to his house for the purpose of carrying

513
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

out their common intent and prepared to cooperate to that end,

and some of them actually killed the deceased, while the others
posted themselves around the building ready to prevent his escape
or render any assistance which might be necessary, all will be held
equally guilty as principals irrespective of the individual participation
of each in the material act of the murder. (U.S. vs. Bundal, 3 Phil.
89)
Where consp iracy ha s been ad e q u a t e l y proven, all th e
conspirators are liable as co-principals regardless of the extent and
character of their participation because in contemplation of law, the
act of one is the act of all. The degree of actual participation by each
of the conspirators is immaterial. As conspirators, each is equally
responsible for the acts of their co-conspirators. (People vs. De la
Cruz, G.R. No. 83798, March 29, 1990, 183 SCRA 763, 778; People
vs. G.R. No. 48085, June SCRA 503, 517-518;
People vs. Alvarez, G.R. No. 88451 , Sept. 5, 1991, 201 SCRA 364,
380)

Liability of a conspirator for another conspirator's acts which differ

radically and substantially from that which they intended to com-
mit.
A conspirator should necessarily be liable for the acts of another
conspirator even though such acts differ radically and substantially
from that which they intended to commit. (See People vs.
58 Phil. 536; People vs. Rosario, 68 Phil. 720)
In a case, the Supreme Court said:

the circumstance that the wound made with the knife on

the leg of the person assaulted was the primary cause of death and
that the author of this injury has not been identified, the attorneys
for the accused chiefly planted their defense, and in this connection
it is insisted that the conspiracy to attack Gines contemplated only
beating him up and did not include the infliction of injury by means
of a cutting instrument. Such an act, so it is said, was not within the
scope of the agreement; and it is insisted that only the individual
who inflicted the cut (wound) could be held responsible for the death,
if that person were known. It results, in this view, that none of the
appellants can be held liable further than for the bruises inflicted by
means of the iron bars. These injuries, so it is claimed, would in the
natural course of events have been curable in a few days.

514
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Art. 17
Principals by Direct Participation
Par. 1

"We are of the opinion that this contention is not tenable. The
accused had undoubtedly conspired to do grave personal injury to the
deceased, and now that the injuries actually inflicted have resulted
in death, they cannot escape from the legal effect of their acts on the
ground that one of the wounds was inflicted in a different way from
that which had been intended. A blow inflicted by one of the small
iron bars used in this assault might well have resulted in the taking
of life, and the circumstance that a knife was also used in striking
the deceased does not relieve the appellants from the consequence of
their joint acts. As has been said by the Supreme Court of the United
States, a number of persons agree to commit, and enter upon the
commission of a crime which will probably endanger human life such
as robbery, all of them are responsible for the death of a person that
ensues as a (Boyd vs. U.S., 142; U.S., 450; 35 Law
1077). In United States vs. Patten, the Court said:
who join in a criminal attack on a defenseless man with dangerous
weapons, knock him down, and when he tries to escape, pursue him
with increased numbers, and continue the assault, are liable for man-
slaughter when the victim is killed by a knife wound inflicted by one
of them during the beating, although in the beginning they did not
contemplate the use of a (People vs. 58 Phil. 536,
542-543)

And in another case: "There is no question that the four as-

sailants acted in conspiracy with each other. This was evident from
the time they went to Bernardo's house pretending to look for a lost
carabao and, more convincingly, when they moved in concert to kill
Bernardo even as the two witnesses were pulled away by the hair,
after which all four of them fled together. As conspirators, they are
each liable for the attack on Bernardo, regardless of who actually
pulled the trigger or wielded the club that killed him." (People vs.
G.R. No. 80406, Nov. 191 SCRA 503, 507)
Suppose that three persons conspired to commit robbery only,
but in the course of the robbery one of them killed an inmate of the
house, must all of them be held liable for robbery with homicide?
It seems that the others must not be held responsible for
the homicide which was not contemplated in their conspiracy
and in which they did not take part. The reason for this opinion
is that Art. 296 of the Revised Penal Code defines the liability
of the offenders in robbery if committed by a band, that is, any

515
 Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

member of a band (at least four armed men) is liable for any
assault committed by the other member of the band, unless it
be shown that he attempted to prevent the same.
Hence, if the robbers are only three, or even more than three
but not more than three are armed, Art. 296 is not applicable
and the robber who does not take part in the assault is not liable
therefor.

Where there is conspiracy to commit a felony, all the

conspira- tors are liable for its consequences.
It is argued for appellant that inasmuch as there was no
conspiracy to kill Acuna, and inasmuch as Barauel only hit him with
an iron bar, the latter may not be held responsible for the death. Held:
Since there was conspiracy to punish Acuna, and the death of Acuna
resulted, all the conspirators are responsible for the consequences
that arose from the punishment. (People vs. Villamora, 86 Phil. 287,
291)

Note: The ruling is in accordance with the provision of Article

4, paragraph 1, of the Revised Penal Code.

A conspirator is not liable for another's crime which is not

an object of the conspiracy or which is not a necessary
and logical consequence thereof.
In the case of People vs. 96 Phil. 185, where only the
Huks, allies of defendant Umali, committed robbery which was not
an object of the conspiracy, it was held that defendant Umali was not
liable therefor, but liable for sedition, arson and murder, the objects
of the conspiracy.

Other defendants not held liable for the killings persons not covered
by the conspiracy.

Appellant Sulpicio cannot be held liable for the killing of

Cabizares, notwithstanding a conspiracy between him and Serapio
The conspiracy was to kill Rafael only and no one else.
Nothing was said or agreed upon about the members of Rafael's
family. In fact, in executing their plan, appellants let the two women
inside house leave unhurt and they did no harm to the

516
 PRINCIPALS IN GENERAL Art. 17
Principals by Direct Participation Par. 1

remaining companions of Rafael in the Their target was solely

Rafael Cabizares. And the rule has always been that co-conspirators
are liable only for acts done pursuant to the conspiracy. For other
acts done outside the contemplation of the co-conspirators or which
are not the necessary and logical consequence of the intended crime,
only the actual perpetrators are liable. (People vs. De la G.R.
No. October 30, 1967, 21 SCRA 569, 586, citing People vs.
89 Phil. 225; People vs. Daligdig, 89 Phil. 598; People vs.
Umali, 96 Phil. 185; People vs. Duenas, May and
I Reyes, The Rev. Penal Code, 432-433)

The ruling in the case of People vs. De la Cerna, supra, should be

distinguished from the ruling in the cases of People vs. 58
Phil. 536, and People vs. Rosario, 68 Phil. 720. Conspirators are liable
for the acts of another conspirator even though such acts differ radically
and substantially from that which they intend to commit. This is in
accordance with the provision of Art. 4, par. 1, of the Revised Penal
Code. But when the conspirators selected a particular individual to be
their victim, and another person was killed by one of them, only that
conspirator who killed another person would be liable therefor.

Conspiracy may cover persons previously undetermined.

Even if the conspiracy was only against Jose de Leon and not
against Augusto Gonzales and Capt. Olivas whose intervention was
merely accidental and could not have been foreseen by the accused
when they were preparing their plan, the accused are liable for all
the natural and inherent consequences of such plan, it appearing
that there was a general plan to kill anyone who might put up violent
resistance. (People vs. Timbol, supra)

A person in conspiracy with others, who had desisted before

the crime was committed by the others, is not criminally
liable.
"Although this appellant (Dalmacio Timbol) was a member of
the conspiracy, yet he desisted therefrom before the intended crimes
were committed. He left the office of De Leon and the Pasudeco build-
ing long before the killings took place.
"And since conspiracy alone, without the execution of its purpose,
is not a crime punishable by law, except in special instances (Art.

517
8), none of which is the case at bar, Dalmacio Timbol is not

518
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

liable." (People vs. Timbol, G.R. Nos. August

4, 1944)
It was held that the act of a conspirator who, as soon as the ag-
gression was started by his co-conspirators, ran away and called for
help of other persons who hurriedly responded, is an act of desistance
from taking an active part in the aggression which removes the case
from the operation of the established rule that when a conspiracy
is proved, the act of one co-conspirator is the act of all. (People vs.
Mappala, 40 O.G. 1681)

When there is conspiracy, it is not necessary to ascertain

the specific act of each conspirator.
It is not necessary to ascertain the specific acts of aggression
committed by each of the culprits, since, having participated in the
criminal resolution, the act of one is the act of all. (People vs. Mendoza,
91 Phil. 58, 63)
Conspiracy having been established, it is immaterial who of the
conspirators fired the fatal shot. (People vs. Canoy, G.R. Nos.
54, Jan. 30, 1953, 92 Phil. 1076
For indeed, it is well-entrenched in our jurisprudence that when
there is conspiracy, the act of one is the act of all, and all persons
taking part in the crime shall be held guilty as principals. It is of no
moment that not all the accused took part in the actual commission
of every act constituting the crime. Each is responsible for all the
acts of the others done in furtherance of the conspiracy. The degree
of actual participation is immaterial. (People vs. G.R. Nos.
90672-73, July SCRA citing earlier cases. Also
People vs. Base, G.R. No. SCRA 688, 696; People vs. Moka,
G.R. No. 88838, April 26, 1991, 196 SCRA 378, 385-386; People vs.
Catubig, G.R. No. 71626, March 22, 1991, 195 SCRA 505, 516-517)

Conspiracy having been established, it is immaterial whether it

was VC or SG who fired the fatal shot. (People vs. Canoy, et G.R.
Nos. L-4653-4654, Jan. 30, 1953)

When there is conspiracy, the fact that an element of the

offense is not present as regards one of the conspirators is
immaterial.
Thus, in the complex crime of seduction by means of usurpation
of official functions, where one of the accused simulated and falsely
519
 PRINCIPALS IN GENERAL Art. 17
Principals by Direct Participation Par. 1

pretended to be a minister authorized to perform marriage ceremo-

nies and did simulate that he was performing a marriage ceremony
between his co-accused and a girl in order thus the more easily to
deceive her and cause her to live in marital relations with the other
accused, the element of performance of official functions was present
as regards one of the accused only; but the Supreme Court declared
the other accused guilty of, and sentenced him to the penalty for, the
same crime complexed with seduction which he actually committed.
(U.S. vs. Hernandez, 29 Phil. 109)

All are liable for the crime of abduction, even if only one acted with
lewd designs.
Lewd designs on the part of the offender is an essential element
of the crime of abduction. (Art. 342 — forcible abduction; Art. 343
— consented abduction)

In a case where defendant conspired with his co-de-

fendant Loyola to forcibly abduct and, in furtherance of the
conspiracy, took a direct part by positive overt acts necessary to the
realization of the abduction, it was held that it was of no moment
that Loyola alone acted with lewd designs, for once conspiracy is
established, the acts of one are considered the acts of all. (People vs.
Loyola, C.A., 51 O.G. 253)

In multiple rape, each rapist is equally liable for the other

rapes.
In a line of cases, it has been held that in multiple rape, each
defendant is responsible not only for the rape personally committed
by him, but also for the rape committed by the others, because each
of them cooperated in the commission of the rape perpetrated by the
others, by acts without which it would not have been accomplished.
(People vs. Fernandez, G.R. No. 62116, March 22, 1990, 183 SCRA
511, 517-518)
Exceptions:
1. In the crime of parricide, the element of relationship must be
present as regards all the offenders.
If the wife and son of the deceased conspired to kill the
latter and did kill him, both the wife and the son are guilty of
parricide. But if the wife of the deceased and a stranger conspired

520
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

to kill him and did kill him, only the wife is guilty of parricide
and the stranger is guilty of homicide or murder, as the case
may be. (People vs. Patricio, 46 Phil. 875)
The reason for the exception is that Art. 62 , par. 3,
provides that aggravating circumstances which arise from the
private relations of the offender with the offended party shall
serve to aggravate only the liability of the principals, accomplices
and accessories as to whom such circumstances are attendant.
This provision applies when the element of the felony arises from
the private relation of the offender with the offended party.

2. In the crime of murder where treachery is an element of the

crime, all the offenders must at least have knowledge of the
employment of treachery at the time of the execution of the act
or their cooperation therein.
Thus, if A and B who conspired to kill C, carried out their
plan without previously considering the means, methods, or
forms in killing the latter, and only A employed treachery, since
B was present during the killing and knew the employment of
treachery by A, both are liable for murder.
But if B remained at the gate of the premises of C, and
only A actually killed C in the latter's house with treachery, so
that B did not know of the employment of treachery, only A is
liable for murder and B is liable for homicide.
The reason for this exception is that Art. 62 , par. 4, pro-
vides that the circumstances which consist in the material
execution of the act, or in the means employed to accomplish it,
shall serve to aggravate the liability of those persons only who
had knowledge of them at the time of the execution of the act
or their cooperation therein. Treachery is either a qualifying or
a generic aggravating circumstance.

Participation in another's criminal resolution must either

precede or be coetaneous with the criminal act.

People vs. Tan Diong

(59 Phil. 539)
Facts: Tan Diong, to avoid the execution of the judgment against
him in a civil case, transferred his properties by unilateral deeds of

521
 PRINCIPALS IN GENERAL Art. 17
Principals by Direct Participation Par. 1

conveyance with fictitious consideration in favor of Eustaquio Baranda

whose participation was only his testifying falsely in court that he had
acquired the properties with sufficient consideration.
Held: As to Eustaquio Baranda, we note that the conveyances
by which these properties were conveyed to him were of a unilateral
character. Baranda did not participate in the conveyances, and his
alleged participation in the fraud consisted only in the fact that he
serted in the properties conveyed. In our opinion, this does
not justify his conviction as a participant in the fraud. His resolution
to accept the benefit of the fraudulent conveyances may have been
formed only after the act of Tan Diong. His guilt as a co-conspirator in
the fraud is, therefore, not proved.
Note: Baranda would have been liable as a co-principal, had he
concurred with Tan Diong at the time or before the execution of the
deeds of conveyance.

There could be no conspiracy to commit an offense

through negligence.
Since conspiracy presupposes an agreement and a decision to com-
mit a felony, when it appears that the injuries inflicted on the offended
party were due to the reckless imprudence of two or more persons, it
is not proper to consider conspiracy between or among them.

In cases of criminal negligence or crimes punishable by

spe- cial law, allowing or failing to prevent an act to be
performed by another, makes one a co-principal.
Thus, a professional driver of a passenger truck who allowed his
conductor to drive the truck which, while being driven by the latter,
bumped a jeepney resulting in the death of one jeepney passenger,
was held criminally liable as co-principal of homicide and damage to
property through reckless imprudence under Act No. 3992 and Art.
365 of the Revised Penal Code. (People vs. Santos, C.A., 44 O.G. 1289)
Both the driver and the conductor were held liable as co-principals.
Also, a was held criminally liable under the Pure
Food and Drugs Act for the act of his employee, in selling adulter-
ated coffee, although the storeowner did not know that the coffee
was sold by his employee. (U.S. vs. Siy Cong Bieng and Co Kong, 30
Phil. 577) Both the storeowner and the employee were held liable as
principals.

522
Art. 17 PRINCIPALS IN GENERAL
Par. 1 Principals by Direct Participation

Second requisite — (Principals by direct participation)

That the culprits "carried out their plan and personally took part
in its execution, by acts which directly tended to the same

The principals by direct participation must be at the scene of

the crime, personally taking part in its execution.
A principal by direct participation must personally take part
in executing the criminal plan to be carried out. This means that he
must be at the scene of the commission of the personally taking
part in its execution.
Thus, in the case People vs. Ong Chiat Lay, 60 Phil. 788, it
was held that one of the accused was not a principal by direct par-
ticipation because he was absent from the scene of the fire when the
crime of arson was committed by the other accused.
The exception to the rule that to be a principal by direct partici-
pation, the offender must be at the scene of the commission of the
is the case where there was conspiracy to kidnap and kill the
victim and only one of the conspirators kidnapped the victim and,
after turning him over to his co-conspirators for execution, left the
spot where the victim was killed. The one who kidnapped the victim
was liable for murder committed by the others. The reason for the
exception is that by kidnapping the victim, he already performed his
part and the killing was done by his co-conspirators in pursuance of
the conspiracy. (People vs. Santos, 84 Phil. 104)

The acts of each offender must directly tend to the same end.
While the principals by direct participation personally take part
in the execution of their common purpose, it is not necessary that
each of them should perform a positive act directly contributing to
the accomplishment of their common purpose.
In a murder which the offenders previously agreed to commit,
not only the one who inflicts the fatal wound is considered a principal,
but also the one who holds down the victim and the one who lies in
wait at the door to prevent any help from being rendered. The acts of
each and every one of the offenders in this case are all directed to the
same end, that is, the killing of their victim. Criminal responsibility
in such a case is collective. (People vs. 46 Phil. 838)

523
 PRINCIPALS IN GENERAL
Art. 17
Principals by Direct Participation
Par. 1

One serving as guard pursuant to the conspiracy is a principal

by direct participation.
The appellants were part of the plot to rob the victim. At the
time of the robbery, they stood guard outside the house, while their
co-accused entered the victim's dwelling. They are equally liable as
the others. (People vs. No. July SCRA
301 , 308)

Thus, one who stands guard outside the house for the purpose of
keeping others away, or of warning his fellow-conspirators of danger
of discovery, while the latter are murdering the occupant, takes a
direct part in the commission of the crime of murder, and is guilty as
a principal by direct participation. He is in fact present, aiding, and
abetting in the commission of the crime. (U.S. vs. 22 Phil.
127; U.S. vs. 26 Phil. 133)

Exception:

People vs.
(77 Phil. 136)

Facts: The accused were jointly tried for the murder of three per-
sons. Said accused were members of a guerrilla unit and were charged
with having taken the deceased Lorenzana to their headquarters and
beating him to death while investigating him on charges of espionage
for the Japanese. The other accused admitted their guilty participation
in the crime. Accused Samano and Alcantara admitted that they acted
as guards near the place of the crime, but that they did so in obedience
to superior orders and without knowledge that the deceased who was
then under investigation would later be killed. There was no evidence
that there was conspiracy between those who pleaded guilty and the
present appellants.
Held: When there is no conspiracy or unity of criminal purpose
and intention indicating participation in the criminal resolution, mere
passive presence at the scene of another's crime does not constitute
complicity.

When the second requisite is lacking, there is only con-

spiracy.
The second requisite is that the persons who have participated
in the criminal resolution, must carry out their plan and personally
524
 Art. 17 PRINCIPALS IN GENERAL
Par. 2 Principals by Induction

take part in its execution by acts which directly tend to the same
end.
If this second requisite is lacking, at most, there is only a con-
spiracy among the several defendants who participated in the CTiminal
resolution, and if the crime they agreed and decided to commit is not
treason, rebellion or sedition, they are not criminally liable.
Thus, if four of the accused merely attended the conferences and
entered no opposition to the nefarious scheme, merely assenting out
of respect and fear, and after the commission of the murders they
joined with the other accused in celebrating with a fiesta, by way of
custom, they were neither co-principals nor accomplices. (People vs.
Asaad, 55 Phil. 697)
This is the reason why Dalmacio Timbol, who merely conspired
with his co-accused to kill the deceased but left the place before his
co-accused began shooting the deceased, was acquitted of the charge of
murder. (People vs. Timbol, G.R. Nos. August
Even if G's participation in the first meeting sufficiently involved
him in the conspiracy (as he was the one who explained the location of
the house to be robbed in relation to the surrounding streets and the
points thereof through which entrance and exit should be effected),
such participation and involvement, however, would be inadequate
to render him criminally liable as a conspirator. The reason for this
is that conspiracy alone, without the execution of its purpose, is not
a crime punishable by law, except in special instances (Article 8, Re-
vised Penal Code) which, however, do not include robbery. (People vs.
G.R. No. May cited in People vs. Peralta,
No. Oct. 29, 1968, 25 SCRA 759, 777-778)

PAR. 2. - PRINCIPALS BY INDUCTION.

who directly force or induce others to commit it."

Paragraph No. 2 of Art. provides for the second class

of principals.
The second class of principals, according to Article 17 of the
Revised Penal Code, comprises "those who directly force or induce
others to commit it (the Those who directly induce others to
commit the act are called "principals by inducement" or "principals
525
 PRINCIPALS IN GENERAL Art. 17
Principals by Induction Par. 2

by from the Spanish por induction." The word

"inducement" comprises, in the opinion of Viada and the Supreme
Court of Spain, price, promise of reward, command, and pacto. (People
vs. Gensola, No. Sept. 30, 1969, 29 SCRA 483, 490)

The principal by induction becomes liable only when the

principal by direct participation committed the act induced.
Thus, in the case of People vs. Ong Chiat Lay, 60 Phil. 788, it
was held that one cannot be held guilty of having instigated the com-
mission of the crime without first being shown that the crime was
actually committed by another.

Two ways of becoming principal by induction.

There are two ways of becoming a principal by induction under
the second paragraph of Art. 17, namely:
(1) by directly forcing another to commit a crime, and
(2) by directly inducing another to commit a crime.

By directly forcing another to commit a crime.

There are two ways of directly forcing another to commit a crime.
They
a. By using irresistible force.
b. By causing uncontrollable fear.
In these cases, there is no conspiracy, not even a unity of crimi-
nal purpose and intention. Only the one using force or causing fear
is criminally liable. The material executor is not criminally liable
because of Art. 12, pars. 5 and 6.

By directly inducing another to commit a crime.

There are two ways of directly inducing another to commit a
crime. They are:
a. By giving price, or offering reward or promise.
Both the one giving the price or offering reward or
promise and the one committing the crime in considera-
tion thereof are principals — the former, by inducement;
526
Art. 17 PRINCIPALS IN GENERAL
Par. 2 Principals by Induction

and the latter, by direct participation. There is collective

criminal
A wife, who induced the killing of the mistress of her
husband by giving money to the killer, is a principal by
induction. The killer is a principal by direct participation.
(People vs. Lao, No. Jan. 28, 1961, 1 SCRA 42)
b. By using words of command.
Both the person who used the words of command and
the person who committed the crime, because of the words
of command, are equally liable. There is also collective
criminal responsibility. (U.S. vs. Gamao, 23 Phil. 81)

Requisites:
In order that a person may be convicted as a principal by induce-
ment, the following requisites must be present:
1. That the inducement be made directly with the intention
of procuring the commission of the crime; and
2. That such inducement be the determining cause of the
commission of the crime by the material executor. (U.S. vs.
Indanan, 24 Phil. 203; People vs. 61 Phil.
609)
To constitute inducement, there must exist on the part of the
inducer the most positive resolution and the most persistent effort to
secure the commission of the crime, together with the presentation to
the person induced of the very strongest kind of temptation to commit
the crime. (U.S. vs. Indanan, supra)

Illustration of the first requisite.

When the accused, blinded by the grudge which she bore against
the deceased, caused her co-accused thru promise of pecuniary gain
to shoot the victims with a gun which she had furnished the latter,
it is clear that she had the intention of procuring the commission of
the crime. (People vs. Otadora, 86 Phil. 244)

In the case of a married woman who suggested to her paramour

that he kill her husband in order that thereafter they might live
together freely and the paramour, acting upon these suggestions,

527
 PRINCIPALS IN GENERAL Art. 17
Principals by Induction Par. 2

killed him, it was held that the proposition of the woman constituted
something more than mere counsel or advice which her co-defendant
was entirely free to accept or not. It was coupled with a consideration
which, in view of the relations existing between them, furnished a
motive strong enough to induce the man to take the life of her husband.
(U.S. vs. Alcontin, 10 O.G. 1888, cited in U.S. vs. Indanan, supra;
People vs. Giron, 82 Phil. 783)

The cases cited also illustrate the second requisite. In the

Otadora case, the promise of pecuniary gain was the determining
cause of the commission of the crime by the principal by direct
participation. In the Alcontin case, the proposition of the woman, in
view of the relations existing between her and the other accused, was
the determining cause of the commission of the crime by the latter.

A thoughtless expression without intention to produce the

result is not an inducement to commit a crime.
But a thoughtless expression or act, without any expectation or
intention that it would produce the result, is not an inducement to
commit a crime.
Thus, a chance word spoken without reflection, a wrong ap-
preciation of a situation, an ironical phrase, a thoughtless act, may
give birth to a thought of, or even a resolution to, crime in the mind
of one for some independent reason predisposed thereto without the
one who spoke the word or performed the act having any expectation
that his suggestion would be followed or any real intention that it
produce the result. In such case, while the expression was imprudent
and the results of it grave in the extreme, the one who spoke the word
or performed the act would not be guilty of the crime committed by
the other. (U.S. vs. Indanan, supra)

Example of imprudent advice, not constituting sufficient

inducement.
In a decision by the Supreme Court of Spain rendered on the
10th of July, 1877, it was held that person who advised a married
woman whose husband was very stingy and treated her badly that
the only thing for her to do was to rob him, was not guilty of the
crime of robbery by inducement, for the reason that an imprudent
and ill-conceived advice is not (Cited in the case of U.S.
vs. Indanan, supra)

528
 Art. 17 PRINCIPALS IN GENERAL
Par. 2 Principals by Induction

The person who gave the advice did not have the intention to
procure the commission of the crime.

The inducement may be by acts of command, advice, or through influ-

ence, or agreement for consideration.
The inducement and the commission of a crime whereby the
inducer becomes a principal, to the same extent and effect as if he
had physically committed the crime, may exist in acts of command,
sometimes of advice, or agreement for a consideration, or through an
influence so effective that it alone determines the commission of the
crime.

The words of advice or the must have actually

moved the hands of the principal by direct participation.
Thus, a person who persuaded an inexperienced boy of tender age
to steal certain jewels of his grandmother was found guilty of theft by
inducement. cited in U.S. vs. Indanan, supra) Minors under 15
years of age are easily susceptible to the suggestions of the inducer,
because usually they have no discernment or judgment of their own.
When induced to commit a crime, the influence of the inducer is the
determining cause of the commission of the crime.

Words of command of a father may induce his son to commit a crime.

A distinction should be made between the words of command
of a father to his sons, under conditions which determine obedience,
and the excited exclamations uttered by an individual to whom obedi-
ence is not due. The moral influence of the words of the father may
determine the course of conduct of a son in cases where the same
words coming from a stranger would make no impression. (People
vs. 44 Phil. 38, 57)

The accused, who, exercising dominance and ascendancy over

his 3-year-old son, compelled the latter to hurl a stone at another boy,
causing injury to the latter's eye, is clearly a principal by inducement.
(People vs. Bautista, C.A., 58 O.G. 5197)

Meaning of the second requisite.

It is necessary that the inducement be the determining cause
of the commission of the crime by the principal by direct
529
 PRINCIPALS IN GENERAL Art. 17
Principals by Induction
Par. 2

tion, that is, without such inducement the crime would not have been
committed. (Decision of the Supreme Court of Spain, cited in U.S. vs.
Indanan, supra)
Inducement exists if the command or advice is of such a nature
that, without its concurrence, the crime would not have material-
ized. (People vs. Cruz, G.R. No. 74048, Nov. SCRA 377,
385)
Thus, if the principal by direct participation had personal reason
to commit the crime so that he would commit it just the same even if
no inducement was made by another, this second requisite does not
exist.

The inducement must precede the act induced and must be so influ-
ential in producing the criminal act that without it, the act would not
have been performed.
Thus, the price given to the principal by direct participation after
the commission of the crime, without prior promise to give a price or
reward, could not be an inducement.
If the person who actually committed the crime had a reason
of his own to commit the crime, it cannot be said that the induce-
ment was influential in producing the criminal act. In such case, the
one charged with having induced the commission of the crime is not
criminally liable.

People vs. Castillo

(G.R. No. July 26, 1966)

Facts: Convicted by the trial court were appellant Castillo as

principal by inducement and Marincho Castillo as principal by direct
participation. It appears that before the commission of the crime at
bar, Marincho Castillo was slapped on the face by the now deceased
Juan Vargas as a result of an altercation between them. Two months
after, while appellant, holding gun, was talking face to face with Var-
gas, Marincho came from behind and hacked the latter on the head.
As Marincho was about to strike the victim a second blow, appellant
said: kill Marincho, accompanied by appellant, surrendered
himself to the authorities.
Issue: Whether appellant can be found guilty as principal by
inducement.

530
Art. 17 PRINCIPALS IN GENERAL
Par. 2 Principals by Induction

Held: In the case People vs. Dec. 29, 1960,

this Court held that in determining whether the utterances of an ac-
cused are sufficient to make him guilty as co-principal by inducement,
it must appear that the inducement was of such nature and was made
in such a way as to become the determining cause of the crime and
that such inducement was uttered with the intention of producing the
result. In this case, appellant was, of course, armed with a revolver
while talking with the deceased, but the firearm was not pointed at
the latter. Then he is alleged to have uttered the words "You kill
only after his son had already fatally boloed Vargas on the head. The
inducement to commit the crime was, therefore, no longer necessary
to induce the assailant to commit the crime. Appellant's guilt has not
been established beyond reasonable doubt.

By using words of command.

With respect to command, it must be the moving cause of the
offense. In the case at bar, the command shouted by Fidelina,
strike him!" was not the moving cause of the act of Rufino Gensola.
The evidence shows that Rufino would have committed the act at
his own volition, even without said words of command. (People vs.
Gensola, No. Sept. 30, 1969, 29 SCRA 483 , 490)
"Kill him and we will bury him" as an imprudent utterance said
in the excitement of the hour or in the heat of anger, and not, rather,
in the nature of a command that had to be obeyed, does not make the
utterer a principal by inducement. (People vs. Agapinay, G.R. No.
77776, June 27, 1990, 186 SCRA 812, 821)

In determining whether the utterances of an accused are sufficient

to make him guilty as co-principal by inducement, it must appear that
the inducement was of such nature and was made in such a way as to
become the determining cause of the crime and that such inducement
was uttered with the intention of producing the result. (People vs.
Castillo, No. 19238, July 26, 1966, 17 SCRA 721 , 723-724)
For the utterances of an accused to make him a principal by in-
ducement, it is necessary that the words be of such nature and uttered
in such manner as to become the determining cause of the crime, and
that the inducement precisely was intended to serve such purpose. In
other words, the inciting words must have great dominance and influ-
ence over the person who acts; they ought to be direct and as efficacious
or powerful as physical or moral coercion or violence itself. (People vs.
Nos. Aug. 46 SCRA 634, 651)
531
 PRINCIPALS IN GENERAL Art. 17
Principals by Induction Par. 2

In order that a person using words of command may be held li-

able as principal under paragraph No. 2 of Art. 17, the following five
requisites must all be present:
(1) That the one uttering the words of command must have
the intention of procuring the commission of the crime.
(2) That the one who made the command must have an as-
cendancy or influence over the person who acted.
Illustration of this requisite:

A was a poor, ignorant fisherman, dependent his

uncle B. On the other hand, B was a man of great influence
in the community. B was the local political leader of his
party. In the meeting where the plan to murder the priest
was discussed, B was the prime mover and the dominant
figure. B selected A who was present in the meeting to
commit the crime and directed him to do it. The influence
exercised by B over A was so great and powerful that the
latter could not resist it. (U.S. vs. Gamao, 23 Phil. 81)
(3) That the words used must be so direct, so efficacious, so
powerful as to amount to physical or moral coercion.
Illustration of this requisite:
(a) Efficacious —
One who makes the accused believe that the person
to be killed was the one who had stolen the property of the
accused, is guilty as principal by inducement.
Note: It would seem that the material executor had
a reason to kill the victim, but it was furnished by the
inductor who made him believe that the deceased had
stolen his property.
(b) Powerful — (U.S. vs. Gamao, supra).
(4) The words of command must be uttered prior to the com-
mission of the crime.
Thus, when the commission of the crime has already
been commenced when the words of inducement are ut-
tered, this requisite is lacking.

532
Art. 17 PRINCIPALS IN GENERAL
Par. 2 Principals by Induction

In a decision of the Supreme Court of Spain, cited

in People vs. Kiichi 61 Phil. 609, it was held that
a father who simply said to his son who was at the time
engaged in a combat with another, "Hit was not
responsible for the injuries inflicted after such advice was
given.
(5) The material executor of the crime has no personal reason
to commit the crime.
If the principal by direct participation has a personal
reason to commit the crime, the supposed words of induce-
ment cannot be the determining cause.

People vs. Kiichi Omine

(61 Phil. 611)

Facts: The witnesses for the prosecution contend that while the
injured party, Angel Pulido, was talking with Omine, Autor
attempted to intervene, but was prevented by Pulido with a
bolo, who did not wound him except on the left thumb; that Luis
and Agapito then held Angel Pulido by the arms, and when
Eduardo Autor approached, Omine shouted to him y
and Autor struck Angel Pulido in the breast with his bolo. Previously
Eduardo Autor had struck Angel Pulido with the fist and a blow in the
right
Held: Under the circumstances of this case, even if it were
satisfactorily proven that Kiichi Omine uttered the words in ques-
tion, we are of the opinion that they would not be sufficient to make
him a principal by induction, because it does not appear that the
words uttered by Kiichi Omine caused Eduardo Autor to strike Angel
Pulido. In the first place, as we have indicated, Eduardo Autor had
already other reasons for striking Angel Pulido when Omine uttered
the words of inducement. In the second place, the words in question
were not in this particular case sufficient to cause Eduardo Autor
to strike the offended party with his bolo. Although Eduardo Autor
was working under the direction of apparently, according to
the testimony of Angel Pulido, he was being paid by him (Pulido).
It does not appear that Omine had any particular influence over
Eduardo Autor.

Accused Autor was found guilty of serious physical injuries. Ac-

cused Omine was acquitted.

533
 PRINCIPALS IN GENERAL
Art. 17
Principals by Induction
Par. 2

Requisites considered in determining the liability of a person accused

as principal by inducement.

Appellant was prosecuted allegedly for uttering the words: "You

had better kill him," at the time when his co-accused was attacking
his victim. The Supreme Court stated:

"In the present case, there is nothing to show that appellant

had any reason at all to have Angel killed (first requisite,
not present). On the other hand, even before he allegedly uttered
the words attributed to him, Caimbre, had already boloed
his victim several times (fourth requisite, not present). To this we
must add the circumstance that there is no evidence to show that
appellant had sufficient moral influence over Demetrio Caimbre
as to make the latter obey him blindly" (second requisite, not
present). Appellant wa s acquitted. (People vs. Caimbre, 110 Phil.

The question whether a person present upon the occasion of a

homicide but who takes no direct part in the act can be held crimi-
nally liable for inciting and encouraging another with expressions,
such as, "go ahead," "hit him," "there you have him," "now is the
etc., depends upon whether such words are spoken under
conditions which give them a direct and determinative influence
upon the mind of the principal actor. (People vs. 44 Phil.
38, 56-57)

Ascendancy or as to amount to moral coercion

is not necessary when there is conspiracy.
To consider as principal by induction one who advises or incites
another to perpetrate an offense, it is essential to show that the
advisor had so great an ascendancy or influence that his words were
so efficacious and powerful as to amount to moral coercion. Proof of
such extremes is usually required to justify such conclusion. But such
proof is unnecessary where, as in this case, the principal actor admits
having been so impelled and says that he acted pursuant to a previous
plan or conspiracy to kill and promise to condone his indebtedness.
(People vs. Phil. 629, 633)
There is collective criminal responsibility when words of induce-
ment were used.

534
Art. 17 PRINCIPALS IN GENERAL
Par. 2 Principals by Induction

One who planned the crime committed by another is a

prin- cipal by inducement.
The persons who planned the crime committed by other persons
are guilty as authors by inducement. (People vs. Asaad, 55 Phil. 697

If the crime committed is not contemplated in the order

given, the inducement is not material and not the determining
cause thereof.
People vs.
(G.R. Nos. July 20, 1955)
Facts: Accused Lawas, as head of the home guards whose duty
was to preserve peace and order among the inhabitants in Barrio
Lanao, ordered his men to fire at the Moros suspected of having killed
Christian residents. In the course of the melee that followed, some
of the home guards fired at the women and children who were in the
second floor of the house.
Held: While the home guards were given an order by accused
was to fire at the Moros then on the ground, said order could not imply
or include an order to go up the house and massacre the innocent and
defenseless women and children. Lawas clearly did not intend that the
women and children inside the house should also be fired at. Lawas is
not guilty of murder for the killing of the women and children, because
to hold him liable as principal by induction, it is necessary (1) that the
inducement is and precedes the commission of the crime, and
(2) that such inducement is the determining cause thereof.

Principal by inducement in falsification.

While it is true that it was the employee of the office of the
treasurer who performed the overt act of writing the false facts on the
residence certificate of the accused, it was, however, the accused who
induced him to do so by supplying him with those facts. The accused
was a principal by inducement. The employee was a mere innocent
agent of the accused in the performance of the act constituting the
crime. (People vs. Po Giok To, 96 Phil. 913 , 919)
In this case, the employee was not criminally liable, because
he had no knowledge of the falsity of the facts supplied by the ac-
cused.

535
 PRINCIPALS IN GENERAL Art. 17
Principals by Induction Par. 2

Distinguish principal by inducement from the offender who

made proposal to commit a felony.
1. In both, there is an inducement to commit a crime.
2. In the first, the principal by inducement becomes liable
only when the crime is committed by the principal by direct
participation; in the second, the mere proposal to commit a
felony is punishable in treason or rebellion. The person to
whom the proposal is made should not commit the crime;
otherwise, the proponent becomes a principal by induce-
ment.
3. In the first, the inducement involves any crime; in the
second, the proposal to be punishable must involve only
treason or rebellion.

Effects of acquittal of principal by direct participation upon

the liability of principal by inducement.
Conspiracy is negatived by the acquittal of co-defendant.
(2) One cannot be held guilty of having instigated the commis-
sion of a crime without first being shown that the crime
has been actually committed by another. (People vs. Ong
60 Phil. 788, 790)
But if the one charged as principal by direct participa-
tion is acquitted because he acted without criminal intent
or malice, his acquittal is not a ground for the acquittal of
the principal by inducement. (See People vs. Po Giok To,
supra)
The reason for the rule is that in exempting circum-
stances, such as when the act is not voluntary because of
lack of intent on the part of the accused, there is a crime
committed, only that the accused is not a criminal. In in-
tentional felonies, the act of a person does not make him
criminal unless his mind be criminal.

Possessor of recently stolen property is a principal.

It is clear from Section 5(j), Rule 131, of the Rules of Court, that
the possessor of a recently stolen article is considered a principal, not
536
 Art. 17 PRINCIPALS IN GENERAL
Par. 3 by Indispensable Cooperation

merely as an accessory or an accomplice, unless he proves in a satis-

factory manner that he is but an accessory or an accomplice thereto
and that another person, from whom the article came, is the one who
stole it from the owner thereof. (People vs. Javier, No. L-36509, Feb.
25, 1982, SCRA 186, 190)

PAR. 3. - PRINCIPALS BY INDISPENSABLE COOPERA-

TION.

"Those who cooperate in the commission the offense by another

act without which it would not have been

Meaning of the term "cooperate."

To cooperate means to desire or wish in common a thing. that
common will or purpose does not necessarily mean previous under-
standing, for it can be explained or inferred from the circumstances
of each case. (People vs. 56 Phil. 571 , 576)

Requisites:
1. Participation in the criminal resolution, that is, there is
either anterior conspiracy or unity of criminal purpose and
intention immediately before the commission of the crime
charged; and
2. Cooperation in the commission of the offense by perform-
ing another act, without which it would not have been
accomplished.

First requisite:

As in Par. 1 of Art. 17, this co-delinquency in paragraph 3 also

requires participation in the criminal resolution, that is, there must
be conspiracy. But concurrence with the principal by direct participa-
tion in the purpose of the latter is sufficient, because the cooperation
is indispensable to the accomplishment of the commission of the of-
fense.

May there be cooperation by acts of negligence?

One who, by acts of negligence, cooperates in the commission
of estafa through falsification or malversation through falsification,

537
 PRINCIPALS IN GENERAL Art. 17
Principals by Indispensable Cooperation
Par. 3

without which negligent acts the commission of the crime could not
have been accomplished, is a co-principal. But the one who cooper-
ated in the commission of the crime was held guilty of the same crime
through reckless imprudence. (Samson vs. Court of Appeals, 103 Phil.
277, 282-283; People vs. Rodis, 105 Phil. 1294, 1295

Second requisite:

The cooperation must be indispensable, that is, without which

the commission of the crime would not have been accomplished. If the
cooperation is not indispensable, the offender is only an accomplice.
"Cooperate xxx by another act"

The act of the principal by indispensable cooperation should

be different from the act of the principal by direct participation. The
law says another which means that it should not be the act
of one who could be classified as principal by direct participation.
Examples:

Where it appears that C seized the hands of a 12-year-old

girl, dragged her by force and violence to a place behind
a house where there were some trees whence he called
to his confederate, J, the person chiefly interested in the
perpetration of the crime, with whom C must have had an
agreement beforehand, delivered her to him his arrival
at the place, and then went away from the scene of the
crime so that J might freely consummate the prearranged
rape, as the latter did with violence and intimidation, it
was held that C cooperated in the perpetration of the crime
by acts without which its commission would not have been
accomplished. (U.S. vs. Javier, 31 Phil. 235, 239-240)

(2) R, an employee of a bank, had the duty to examine the

account of the drawer of a check, to determine whether or
not the drawer of the check had sufficient balance to
credit to require the payment of the check, and to indorse
upon the check, if it was entitled to payment, the words
P.O. Luciano de Reyes." After the check
was marked in this manner, it would pass to the cashier
of the bank who, in reliance upon the indorsement, would
pay or order the same to be paid. R, in connivance with
B, and knowing that the latter had no sufficient funds in

538
Art. 17 PRINCIPALS IN GENERAL
Par. 3 Principals by Indispensable Cooperation

the bank, indorsed upon a check drawn by B the words

P.O. Luciano de The cashier, relying
upon the indorsement, ordered the payment of the check,
thus enabling B to draw the amount of the check. In this
case, R was a principal by indispensable cooperation. (U.S.
vs. Buanco, 14 Phil. 484)
In these two cases, it will be noted that the cooperation of the
other accused consisted in performing an act which is different from
the act of execution of the crime committed by the other accused.
In the case of U.S. vs. Javier, the act of cooperation is the forcible
taking of the girl to the place where the rape was committed by the
other accused. In rape, the act of execution is the sexual intercourse
with the woman against her will.
In the case of U.S. vs. Lim Buanco, the act of execution of the
crime of estafa committed by the principal by direct participation is
the fraudulent cashing of the check which resulted in the damage to
the bank. The act of cooperation of the other offender is the certifica-
tion that the check was entitled to payment.
If the cooperation of one of the accused consists in performing an
act necessary in the execution of the crime committed, he is a principal
by direct participation.
Thus, if in the commission of homicide, one of the offenders held
the victim while the other was stabbing him, the one who held the
victim should be a principal by direct participation.
But there are cases where the Supreme Court considered the ac-
cused who held the victim while being stabbed by the other accused as
a principal by indispensable cooperation under paragraph 3 of Art. 17.
The evidence amply demonstrates that said Platon cooperated
in the execution of the deed on trial by holding the victim by the right
arm while his brother and co-defendant inflicted the wounds that
produced death. The responsibility he has incurred by virtue of such
cooperation, without which the deed could not have been committed
in the way it was, is beyond doubt that of principal. (U.S. vs. Cueva,
23 Phil. 553)

Appellants grabbed the waist of the deceased and placed his

hands around it, thereby pinning his (the deceased's) arms. It was

638
 PRINCIPALS IN GENERAL
Art. 17
Principals by Indispensable Cooperation
Par. 3

at this juncture when his co-accused Marcelino Mario stabbed the

deceased at his left breast above the nipple with his dagger (Exh.
C). Under the circumstances, it is clear that appellant is a principal
to the commission of the crime of murder, as he cooperated in the
execution thereof by another act, without which, it would not have
been committed (Art. 17[3], Revised Penal Code). (People vs. Mario,
108 Phil. 574, 577; People vs. Labis, No. L-22087, Nov. 15, 1967, 21
SCRA 875, 885)

Liability of conspirators who took turns in raping a girl.

Four persons each took turns in having sexual intercourse with
a girl by force. It was held that each of them is responsible, not only
for the act of rape committed personally by him, but also for the rape
committed by the others, because while one of them was having sexual
intercourse with the girl, the others were holding her, so that each
one of them cooperated in the consummation of the rape committed by
the others by acts without which it could not have been accomplished.
Four sentences were imposed on each accused. (People vs. Villa, 81
Phil. 193, 197; People vs. Alfaro, 91 Phil. 404, 408-409; People vs.
Fernandez, G.R. No. 62116, March 22, 1990, 183 SCRA 511 , 517)

To be liable as principals, the offender must fall under any

of the three concepts defined in Article
In its decision of December the Supreme Court of Spain
held that a person who assists one who commits the crime of arson
and who knows the latter's purpose, but whose participation in the
arson is not disclosed, may not be considered as a principal because
his acts were neither direct nor absolutely necessary for the commis-
sion of the offense nor did it induce the said commission. (2 Viada,
pp. 369-370) In another decision dated December it said that
where the accused accompanied the killer on a road where the victim
was going to pass and with open knife encouraged him (the killer)
with his presence, the former is not guilty of the crime as principal
because his participation is neither direct nor does it constitute the
inducement necessary to bring about the execution of the crime or
that of cooperation as his act is not indispensable in the commission
of the crime. pp. 383-384)

In People vs. Ubina, 97 Phil. 515, it was held that under the
circumstances, the accused does not fall under any of the three con-

539
Art. 17 PRINCIPALS IN GENERAL
Par. 3 Principals by Indispensable Cooperation

cepts in Article 17 of the Revised Penal Code, and may only

be considered guilty as accomplice.

Collective criminal responsibility.

There is collective criminal responsibility when the offenders
are criminally liable in the same manner and to the same extent.
The penalty to be imposed must be the same for all.
Principals by direct participation have collective criminal
responsibility. Principal by induction, except that who directly forced
another to commit a crime, and principal by direct participation
have collective criminal responsibility. Principal by indispensable
cooperation has collective criminal responsibility with the principal
by direct participation.

Individual criminal responsibility.

In the absence of previous conspiracy, unity of criminal purpose
and intention immediately before the commission of the crime, or
community of criminal design, the criminal responsibility arising from
different acts directed against one and the same person is individual
and not collective, and each of the participants is liable only for the
act committed by him. (U.S. vs. 13 Phil. 386, 390; U.S. vs.
Abiog, 37 Phil.
Where there is no pretension that there was any conspiracy be-
tween the accused nor concerted action pursuant to a common CTiminal
design between them, each is responsible only for the consequences
of his own acts. (Araneta, Jr. vs. Court of Appeals, G.R. No. 43527,
July 187 SCRA 123, 133)

Example of individual responsibility.

The deceased was the one who assaulted a group of three indi-
viduals with a knife, and in the course of an incomplete self-defense,
two of them caused less serious physical injuries upon the assailant,
while the third inflicted the fatal wound. In this case, the party who
inflicted the fatal wound would be the only one responsible as principal
for the crime of homicide; the other two would be held liable only for
less serious physical injuries. (Dec. Sup. Ct. of Spain, June 2, 1874,
Jr. 1 Viada, Cod. 342-343; People vs. Martinez,
42 Phil. 85, 89; People vs. 44 Phil. 38, 44-45)

540
 ACCOMPLICES Art. 18

Art. 18. Accomplices. — A c c o m p l i c e s ar e th e p e r s o n s wh o ,

no t b e i n g i n c l u d e d i n Ar ti cl e 17, c o o p e r a t e i n th e e x e c u t i o
n o f th e offen s e b y p r e v i o u s o r s i m u l t a n e o u s acts .

Quasi-collective criminal responsibility.

B etwee n collective criminal resp on sibil ity and individual
criminal responsibility, there is the so-called quasi-collective criminal
responsibility.

In quasi-collective criminal responsibility, some of the offenders

in the crime are principals and the others are

The participation of an accomplice presupposes the commis-

sion of the crime by the principal by direct participation.
The principal element of every punishable complicity consists
in the concurrence of the will of the accomplice with the will of the
author of the crime (People vs. 44 Phil. 49), and the accom-
plice cooperates by previous or simultaneous acts in the execution of
the offense by the

"Not being included in Article

the participation or cooperation of the accomplice is not
any one of those mentioned in Article 17, which defines the three
concepts of An accomplice does not fall under any of the
three concepts in Art. 17. (People vs. Ubina, 97 Phil. 515)
When there is no conspiracy between or among the defendants
but they were animated by one and the same purpose to accomplish
the criminal objective, those who cooperated by previous or simulta-
neous acts but cannot be held liable as principals are accomplices.

In case of doubt as to whether principal or accomplice.

In case of doubt, the participation of the offender will be consid-
ered that of an accomplice rather than that of a principal.
In the case of appellants Carlos and Pascual Clemente, while
they joined their brother in the pursuit of the fleeing Matnog, and in
the attack on him as he yet the prosecution eyewitness was unable

541
Art. 18 ACCOMPLICES

to assert positively that the two managed to hit the fallen man. There
being no showing of conspiracy, and the extent of their participation
in the homicide being uncertain, they should be given the benefit of
the doubt, and consequently, they are declared to be mere accomplices
in the crime. (People vs. G.R. No. L-23463, Sept.
21 SCRA 261, 270-271)

When the participation of an accused is not disclosed, he

is only an accomplice.
A person who assists one who commits the crime of arson and
who knows the latter's purpose, but whose participation in the arson
is not disclosed, may not be considered as a principal, because his
acts are neither direct nor absolutely necessary for the commission
of the offense, nor do they induce the said commission. (2 Viada, pp.
369-370, cited in People vs. 97 Phil. 515, 533)

In criminal cases, the participation of the accused must be es-

tablished by the prosecution by positive and competent evidence. It
cannot be presumed.

An accomplice does not have previous agreement or

under- standing or is not in conspiracy with the principal
by direct participation.
An accomplice does not enter into a conspiracy with the principal
by direct participation. He does not have previous ag re em e n t
or understanding with the principal to commit a crime. But he
participates to a certain point in the common criminal design. (People
vs. 76 Phil. 571 , 576)
If there is conspiracy, all the conspirators are equally liable for
the crime actually committed by any one of them. The same penalty
shall be imposed on each and every one of them.
On the other hand, the accomplice gets a penalty one degree
lower than that provided for the principal in a consummated felony.
(Art. 52)

Distinction between accomplice and conspirator.

Conspirators and accomplices have one thing in common: they
know and agree with the criminal design. Conspirators, however,

542
 ACCOMPLICES Art. 18

know the criminal intention because they themselves have decided

upon such course of action. Accomplices come to know about it after
the principals have reached the decision, and only then do they agree
to cooperate in its execution. Conspirators decide that a crime should
be committed; accomplices merely concur in it. Accomplices do not
decide whether the crime should be committed; they merely assent to
the plan and cooperate in its accomplishment. Conspirators are the
authors of a crime; accomplices are merely instruments who perform
acts not essential to the perpetration of the offense. (People vs. de
Vera, G.R. No. 128966, 18 August 1999)

May a co-conspirator be held liable as an accomplice only?

In a case, the Supreme Court held: "It is true, strictly speak-
ing, that as Dablen and should be punished as
co-principals. However, since their participation was not absolutely
indispensable to the consummation of the murder, the rule that the
court should favor the milder form of liability may be applied to

In the case People vs. No. L-39046, June 30, 1975, 64

SCRA 729, 736, it was held that if the overt acts of the accused, al-
though done with knowledge of the criminal intent of his co-accused
was not indispensable to the homicidal assault, the accused should
be held liable only as an accomplice in the killing of the victim.
In some exceptional situations, having community of design with
the principal does not prevent a malefactor from being regarded as an
accomplice if his role in the perpetration of the homicide or murder
was, relatively speaking, of a minor character. (People vs. 76
O.G. 6600, No. 37, Sept.

Note:
1. The ruling in People vs. Nierra is inconsistent with the
ruling in People vs. Manzano, 58 SCRA 250, where it was
held that appellant's alternative contention that he should
be regarded only as an accomplice is untenable once it is
postulated that he conspired with Bernardo and to
kill Jose Quintos.
2. The fact that the role of a malefactor in the perpetration
of the homicide or murder was of a minor character is of

543
 Art. 18 ACCOMPLICES

no consequence, since having been in conspiracy with the

others, the act of one is the act of all. (People vs. Mendoza,
91 Phil. 58, 63)
The ruling in People Nierra failed to distinguish between
"community of design" and "participation in the criminal
resolution" of two or more offenders.
The first does not necessarily mean that there is
conspiracy, although it may develop into a conspiracy; the
second implies conspiracy.
If a malefactor entered with the others into an
agreement concerning the commission of a felony and
the decision to commit it, the malefactor and the others
participated in the criminal resolution. Such agreement and
decision may be inferred from the facts and circumstances of
the case. If there was no such agreement and decision, but,
knowing the criminal design of the others, the malefactor
merely concurred in their criminal purpose, there is only
community of design. The malefactor, whose role in the
perpetration of the homicide or murder is of a minor
character, may properly be held liable as accomplice.

In order that a person may be considered an accomplice, the

following requisites must concur.
1. That there be community of design; that is, knowing the
criminal design of the principal by direct participation, he
concurs with the latter in his purpose;
That he cooperates in the execution of the offense by previ-
ous or simultaneous acts, with the intention of supplying
material or moral aid in the execution of the crime in an
efficacious way; and
3. That there be a relation between the acts done by the
principal and those attributed to the person charged as
accomplice. (People vs. 44 Phil. 38, 49)

First requisite:

Note that before there could be an accomplice, there must be

a principal by direct participation. But the principal originates the

544
 ACCOMPLICES Art. 18

criminal design. The accomplice merely concurs with the principal

in his criminal purpose.
The cooperation that the law punishes is the assistance know-
ingly or intentionally rendered, which cannot exist without previous
cognizance of the criminal act intended to be executed by the principal
by direct participation. (U.S. vs. 11 Phil. 526, 528; People vs.
Cajandab, No. L-29598, July 26, 1973, 52 SCRA 161, 166)

The cooperation which the law punishes is the assistance which

is knowingly or intentionally given and which is not possible without
previous knowledge of the criminal purpose. (People vs. Cruz, G.R.
No. 74048, Nov. SCRA 377, 385, citing People vs. Bello,
11 Phil. 526 and People vs. Ortiz, 55 Phil. 993)
Thus, the sentry is not liable as accomplice in this case:
The sentry improperly permitted certain convicts to go out
of jail, accompanied by the corporal of the guards. The convicts
committed robbery. Was the sentry an accomplice in the crime of
robbery committed by the convicts? No. When the sentry permitted the
convicts to go at large, the sentry had no knowledge of their intention
to commit any crime. (U.S. vs. Bello, supra)
But the driver of a taxicab who, knowing that his co-accused were
going to make a hold-up, permitted them to use the taxicab driven by
him in going to a store where his said co-accused staged the hold-up,
and waited for them until after the hold-up, is an accomplice in the
crime of robbery. (People vs. Lingad, 98 Phil. 5, 12)

How an accomplice acquires knowledge of the criminal design of the

principal.
1. When the principal informs or tells the accomplice of the
former's criminal purpose.
Thus, when the master told his servant that he would
abduct (abduction with consent) a girl under 18 years of
age and instigated his said servant to induce the girl to
leave her home for immoral purposes, and the servant as-
sisted in the commission of the crime by so inducing the
girl, the master was the principal by direct participation
and the servant was an accomplice. (U.S. vs. Sotto, 9 Phil.
231, 236)

545
Art. 18 ACCOMPLICES

Mariano Tadeo accompanied Crispino Tangbaoan

from Abra, to barrio Bacooc, and on
arriving there, Crispino revealed to Mariano that he was
going to kill one Guilay. It is likely that out of friendship
and companionship, Mariano did not leave Crispino after
Mariano learned intention. Mariano was with
Crispino when the latter killed Guilay. It was held that
Mariano was an accomplice in the crime committed by
Crispino. (People vs. Tangbaoan, 93 Phil. 686, 691)
2. When the accomplice saw the criminal acts of the princi-
pal.
In a quarrel, Ramon was choking the deceased. Then,
Jose ran up and delivered a blow with a bamboo stick on
the head of the deceased. After the blow struck by Jose,
which Ramon saw, the latter continued to choke the de-
ceased until life was extinct. The choking by Ramon was
not the cause of death. It was the blow delivered by Jose
which caused the death of the deceased. Held: Ramon is
an accomplice. The reason is that after the deceased had
received the fatal injury, Ramon continued to hold and
choke the deceased until after life was extinct. It shows
that Ramon approved of the blow struck by Jose, thereby
showing his participation in the criminal design of Jose,
and this is sufficient to make Ramon responsible as an ac-
complice. (People vs. 44 Phil. 38, 42 , 49, 54-55)
Another case: stabbed the deceased
after Alfredo Cagalingan had stabbed said deceased at the
back, while Victor Jr. stabbed the same deceased
while the latter was already lying prostrate on the ground.
While the acts of Jovito Cagalingan and Victor Romina,
Jr. show a community of design with the principal, Alfredo
Cagalingan, who inflicted the fatal wound, and Jovito and
Victor cooperated in hastening the victim's death, their
acts were not absolutely indispensable in the commission
of the crime. A person who assails a victim already fatally
wounded by another is only regarded as Jovito
Cagalingan and Victor Romina, Jr. are only accomplices.
(People vs. Cagalingan, G.R. No. 79168, Aug. 319-
320)

546
 ACCOMPLICES Art. 18

Where one of the accused embraced the victim and

rendered him helpless to stop him from further hitting
the other accused, the first accused should be held liable
as accomplice where he did not stop his co-accused from
further hitting the victim.

There is no showing that the attack was agreed upon

between the two accused No motive for it was
shown other than the provocation given by the deceased;
and such motive was true only insofar as the other accused
was concerned. The circumstances indicate that if the ac-
cused embraced the deceased and rendered him helpless,
it was to stop him from further hitting the other accused
with his fists. However, even after the first knife thrust
had been delivered, he did not try to stop the other accused,
either by word or overt act. Instead, the accused continued
to hold the deceased, even forced him down on the bamboo
bed with the other accused still pressing the attack. If the
initial intent of the accused was free from guilt, it became
tainted after he saw the first knife thrust delivered. (People
vs. Manansala, No. Feb. 31 SCRA 401
,
405)

The criminal design to be considered in case there is

no conspiracy or unity of criminal purpose and intention
between two or among several accused charged with a crime
against is the criminal intent entertained by the
accused who inflicted the more or most serious wound on the
victim. In the case People vs. supra, it was Jose
who had the criminal intent, which is to kill the deceased.
Such intent to kill can be inferred from the nature of the
weapon used and the part of the body which was injured.
When a bamboo stick was used in delivering a blow on the
head, death to the victim can be expected.

Concurrence with the criminal purpose of another may make one a

Even if only one of the offenders originated the criminal design

and the other merely concurred with him in his criminal purpose,
but before the actual commission of the crime both of them agreed
and decided to commit it, the other is not merely an accomplice. He
547
Art. 18 ACCOMPLICES

is also a principal, because having agreed and decided to commit a

felony with another, he becomes a co-conspirator.

No knowledge of the criminal design of the principal — not an ac-

complice.
and were partners in the trade of raising and selling
Ireneo Ibanez was not directly involved in the business between
the two. A quarrel between Sixto and Cosme sprang simultaneously
out of a business discussion. Ireneo obtruded into the discussion to
support the interest of his brother Sixto. In the course of the quarrel,
one of the trio mentioned the word Whereupon Cosme started
to run towards his house. Ireneo and Sixto pursued Cosme. When
they caught up with Cosme, Sixto held Cosme's neck from behind and
proceeded to tighten his grip. At this juncture, Ireneo stabbed Cosme
in such a sudden and unexpected manner that the eyewitnesses did
not even notice that Ireneo's blow carried a dagger with it. And Sixto
showed surprise when later he saw the bloodstained dagger of Ireneo,
and asked him, "What did you do?" Sixto immediately loosened his
grip on Cosme's neck.

Held: While it is true that the act of Sixto coincided with Ireneo's
act of stabbing, does not of itself demonstrate the
concurrence will nor the unity of action and purpose which are the
bases of the responsibility of two or more individuals.
There is no proof that they pursued Cosme because they had
accepted a challenge coming from him. Apparently, their intention
was only to prevent him from taking from his house a weapon with
which to carry out an attack. They were, therefore, just advancing a
legitimate defense by preventing an illegitimate aggression.
act of holding Cosme's neck from behind is no proof of intention to
kill. At that time he did not know yet what his brother's intention
was. It was not shown that Sixto knew that his brother was armed.
(People vs. Ibanez, 77 Phil. 664)
Ciriaco Limbo was an employee of the Bureau of Printing. He
stole several blank certificates used for the registration of large cat-
tle from the bookbinding department of that Bureau and sold them
to one of his co-defendants, Pedro Flores, for the sum of P15 each.
These registration certificates were used by Flores in effecting a sale
of the two horses for the theft of which they convicted.

548
 ACCOMPLICES Art. 18

Limbo took no part, direct or indirect, either in the stealing of

the horses or in selling them after they had been stolen. He had no
knowledge of the commission of the crime of theft by his co-defend-
ants. He did not enter into any conspiracy or arrangement with them
looking to the commission of the crime of theft of the horses. He did
not receive any share of the proceeds of the sale of the horses.

Held: Limbo was liable only for the theft of the blank certificates,
but he was neither a principal, an accomplice, nor an accessory in the
crime of theft of the horses committed by the other defendants. (U.S.
vs. Flores, 25 Phil. 595, 597)

The accomplice intends by his acts, to commit or take part

in the execution of the crime.
vs. People
(G.R. No. April

Facts: It appears that appellant is a close friend of Dr. Jesus

Lava, a top leader of the Communists, who was his classmate in the
high school, and who later on became the godfather of appellant's first
child. Appellant's wife and children were treated successfully by Dr.
Lava in 1939 and 1943 for various illnesses free of charge, and appel-
lant believed that his wife and children owe their lives to Dr. Lava. One
night in 1946, Dr. Lava arrived in the house of the appellant asking for
shelter. Appellant gave Lava accommodation for the night. The next
time that appellant heard from Dr. Lava was in May 1949, when he
received a note from the latter asking for some cigarettes, powdered
milk and canned goods. Appellant furnished in as small amounts as
he could send. It also appears that appellant, as a ranking employee of
the National City Bank of New York, helped the Huks to open accounts
and changed dollars to Philippine money for the Huks. The Court of
Appeals found him guilty as an accomplice in the crime of rebellion.

Held: There are two elements required, in accordance with the

definition of the term accomplice given in the Revised Penal Code
(Art. 18), in order that a person may be considered an accomplice to
a criminal act, namely, (1) that he takes part in the execution of the
crime by previous or simultaneous acts and (2) that he intends by said
acts to commit or take part in the execution of the crime. The crime of
rebellion is committed by rising publicly and taking up arms against
the Government for any of the purposes mentioned in Article 134 of
the Revised Penal Code. Appellant did not take up arms against the
Government. He did not openly take part in the commission of the

549
Art. 18 ACCOMPLICES

crime of rebellion by any other act without which said crime would not
have been committed. The act of sending cigarettes and food supplies
to a famous Huk does not prove intention to help him in committing
rebellion or insurrection. Neither is the act of having dollars changed
to pesos or in helping the Huks to open accounts, by themselves show
an intent or desire to participate or help in an uprising or rebellion.
Appellant was a public relations officer of the bank of which he was an
employee and the work above indicated performed by him was a part of
his functions as an employee of the bank. Good faith is to be presumed.
No presumption of the existence of a criminal intent can arise from the
above acts which are in themselves legitimate and legal. Said acts are
by law presumed to be innocent acts while the opposite has not been
proved. In the crime of treason, any act of giving comfort or moral aid
may be criminal, but such is not the case with rebellion where the Penal
Code expressly declares that there must be a public uprising and taking
up of arms in rebellion or insurrection. Granting for the sake of argu-
ment that appellant had the criminal intent of aiding the communists
in their unlawful designs to overthrow the Government, the assistance
thus extended may not be considered efficacious enough to help in the
successful prosecution of the crime of insurrection or rebellion so as to
make him an accomplice therein.

The community of design need not be to commit the crime

actually committed. It is sufficient if there was a common
purpose to commit a particular crime and that the crime
actually committed was a natural or probable consequence
of the intended crime.
1. In the case of People vs. Largo, 99 Phil. 1061, it appears
that Crispin Verzo caused Salazar and
Largo to load a time bomb in a PAL plane, which carried
Suzara. Verzo was the paramour of Suzara's
wife. The bomb exploded when the plane was in mid-air.
The plane fell into the sea. All of its 13 passengers and crew
members were killed. It was held that Salazar and Largo
were accomplices in the crime of which Crispin Verzo was
found guilty as principal, "because although they cooper-
ated in the execution of the criminal act with knowledge
that something illicit or forbidden was being done, there
is no evidence that they knew that the act would, or was
intended to, cause the destruction of the plane and its pas-
sengers."

550
 ACCOMPLICES Art. 18

2. In the case of U.S. vs. De Jesus, 2 Phil. 514, three men

entered the house of Ramon Osete for the purpose of
abducting his daughter, but instead of accomplishing
the abduction, they killed Osete. While the homicide was
being perpetrated, two other men remained in the street
in front of the victim's house, standing by the carriage
which had brought them to the scene of the crime. It was
held that the two men who were on the street ready to
overcome any opposition which they might meet were
accomplices.

Where the accomplices consent to aid in the com-

mission of forcible abduction (a crime in which the use
of force is involved), they will be responsible as such
accomplices for the resulting homicide, the commission
of which might reasonably have been regarded as a pos-
sibility in attemptin g to carry out the abduction, and
this even if it appears that the purpose to commit the
homicide on the part of the principal was unknown to
the accomplices.

When the owner of the gun knew that it would be used to

kill a particular person, and the principal used it to kill
another person, the owner of the gun is not an accomplice
as to the killing of the other person.
Although Serapio got the carbine from Sulpicio, the latter
cannot be considered a principal by indispensable cooperation or
an accomplice. There is no evidence at all that Sulpicio was aware
Serapio would use the rifle to kill Casiano. Presumably, he gave the
carbine to Serapio for him to shoot Rafael only as per their agreement.
Neither is there concrete proof that Sulpicio abetted the shooting of
Casiano. Sulpicio might have been liable if after the shooting of Rafael,
Serapio returned the carbine to him but upon seeing Casiano fleeing,
immediately asked again for the carbine and Sulpicio voluntarily
gave it to Serapio's criminal intention then would be reasonably
apparent to Sulpicio and the latter's giving back of the rifle would
constitute his assent thereto. But such was not the case. Sulpicio,
therefore, must be acquitted for the killing of Casiano
(People vs. De la G.R. No. October SCRA
569, 586-587)

551
Art. 18 ACCOMPLICES

Second requisite:
Like the principal by cooperation under par. 3 of Art. 17, the
accomplice cooperates with the principal by direct participation. But
the cooperation of an accomplice is only necessary, not indispensa-
ble.
However, if there is conspiracy between two or among several
persons, even if the cooperation of one offender is only necessary, the
latter is also a principal by conspiracy. The nature of the cooperation
becomes immaterial.

Examples of cooperation by accomplice:

a. By previous acts.
The example of cooperation by previous act is the
lending of a dagger or pistol to the murderer, knowing the
latter's criminal purpose.
In the crime of rape, the pharmacist who, knowing
the criminal purpose of another, furnishes him the drug
with which he will put his victim to sleep in order to rape
her, is also an accomplice in the crime. (U.S. vs. Flores, 25
Phil. 595, 597-598)
b. By simultaneous acts.
The defendant who held one of the hands of the vic-
tim and tried to take away the latter's revolver, while his
co-defendant was attacking him, is an accomplice, for he
cooperated in the execution of the crime by simultaneous
acts without any previous agreement or understanding
with his co-defendant. (People vs. 89 Phil. 520,
524)

The three persons who actually detained the offended

woman were principals in the crime of illegal detention
and the three other accused who held the victim's com-
panion, in order to prevent the latter from rendering
any help to the victim, were accomplices, there being no
conspiracy among them. (People vs. Crisostomo, 46 Phil.
775, 784)
 ACCOMPLICES Art. 18

The cooperation of an accomplice is not due to a conspiracy.

People vs. Francisco

(G.R. No. L-6270, Feb.

Facts: Francisco, then Mayor of Cordon, Isabela, accompanied by

his co-accused Badua, Dasalla and Tagasa, brought along
with them in a jeep, Ricardo Corpus, whose hands were tied at his
back and proceeded to the PC detachment where Francisco told the
officer of the day that he was leaving Corpus under the custody of the
constabulary because he was a bad man and wanted to take his life.
The Corporal told him that he could not accept Corpus, because there
was no detention cell there. Francisco and his co-accused left with
Corpus. Corpus disappeared and was not seen anymore. The evidence
shows that Francisco was the only one who had the criminal intention
to kidnap Corpus.

Held: The companions of Francisco (Berganio, Badua, Dasalla

and Tagasa) cannot be convicted as principals because of the failure of
the prosecution to prove the existence of conspiracy between them and
Francisco. But they are not entirely free from criminal liability for the
reason that they helped Francisco in bringing Corpus from the munici-
pal building to the PC detachment and ultimately to Barrio
These acts constitute cooperation by or previous
under Article 18 of the Revised Penal Code.
Once it is postulated that one of three accused had conspired
with his co-accused to kill the victim, he cannot be regarded only as
an accomplice. (People vs. Nos. L-33643-44, July 31, 1974,
58 SCRA 250, 259)

When the acts of the accused are not indispensable in the

killing, they are merely accomplices.
As to appellants and Alfredo, the evidence as a whole
would show that they were not entirely free from participation in
the killing of the deceased. The numerous contusions inflicted on
the deceased support the assertion that they threw stones at the de-
ceased, but the throwing of the stones was done during the struggle
between Marciano and the deceased, after the latter had attacked
the former with the iron pipe. Absolutely no evidence exists to prove
that any stone thrown by either Emigdio or Alfredo inflicted any
mortal injury on Felix Jugo, nor does it appear that they joined Mar-
ciano in hitting the deceased after the latter crashed to the ground

553
Art. 18 ACCOMPLICES

from Marciano's blows. Thus, the form and manner of assistance by

Emigdio and Alfredo do not safely disclose that unity of purpose and
design and compulsion by a common motive that would make them
co-principals with the actual slayer, Marciano. The nature of the
killing as an offshoot of a spontaneous turn of events — not a previ-
ously conceived ambush — is seen by the use of stones by Emigdio
and Alfredo, weapons unlikely to be chosen in the cool calculation of
a treacherous ambuscade. At most, they could only be held liable as
accomplices, in that they cooperated in the execution of the offense
by simultaneous acts which were not indispensable. (People vs.
et 59 O.G. 7060, 7064)

The act of one, blocking people coming to the aid of the victim
while being assailed is undoubtedly one of help and cooperation to the
assailants. But, it is not indispensable to the stabbing of the victim.
Hence, he is merely an accomplice. (People vs. Resayaga, No.
March 30, 1988, 159 SCRA 426, 432; People vs. No. L-39046,
June SCRA 729, 736 [hitting the victim's companion with
a piece of wood, apparently to dissuade him from going to the succor
of the
One who acted as a look-out or guard and also assisted in taking
the stolen articles in the crime of robbery with homicide, absent a
conspiracy. (People vs. Parcon, Nos. Dec. 19, 1981 , 110
SCRA 425, 434, 435)

The accomplice merely supplies the principal with material

or moral aid without conspiracy with the latter.
Where the evidence does not prove that appellant conspired with
the malefactors, he cannot be considered as a principal. However, in
going with them, knowing their criminal intention, and in staying
outside of the house with them while the others went inside the store to
rob and kill the victim, the appellant effectively supplied the criminals
with material and moral aid, making him guilty as an accomplice.
(People vs. Balili, No. Aug. SCRA People
vs. Doctolero, G.R. No. 34386, Feb. SCRA 632, 645)
The act of one of the accused in inflicting wound upon the victim
several times with a small knife only after the latter had fallen to the
ground seriously wounded, if not already dead, is not necessary and
indispensable for the consummation of the criminal assault but merely
a or expression of sympathy or feeling of camaraderie with

554
 ACCOMPLICES Art. 18

the other accused. For such act, the accused should be found guilty
only as accomplice. (People vs. Vicente, No. May 21 , 1969,
28 SCRA 247, 256-257)

The wounds inflicted by an accomplice in crimes against

persons should not have caused the death of victim.
The person charged as an accomplice should not have inflicted
a mortal wound. (People vs. 76 Phil. 571) If he inflicted a
mortal wound, he becomes a principal by direct participation.
Thus, when Z cut the deceased on the neck with a bolo and af-
terwards R likewise gave the deceased another blow on the neck, both
wounds inflicted being mortal, even if only R originated the intention
to assault the deceased while Z did no more than to assist the action of
the initiator of the crime, the two must be considered as co-principals
and therefore both are responsible for the crime perpetrated. (U.S.
vs. Zalsos, 40 Phil. 96)

In the following cases, the other accused were held to be accom-

plices only, because the wounds inflicted by them were not the cause
of death:
People vs. 59 Phil. 580, because the wounds inflicted
by the accused did not materially contribute to the death
of the deceased.

2. People vs. 56 Phil. 587, because the wound in-

flicted by the accused was not of a character that would
have resulted in the death of the deceased.
3. People vs. Cortes, 55 Phil. 143, because the accused who
were armed with clubs merely struck the victim, as he fell
by the fatal blow made by the principal, without causing
the victim serious injuries.
4. People vs. Antonio, 73 Phil. stoning the victim already
mortally wounded by other accused, the stoning not being
the cause of death.

People vs. Azcona

(59 Phil. 580)
Facts: Azcona induced the other accused to kill Cabili. The one
who fired the shot which killed Cabili was the principal by direct par-

555
Art. 18 ACCOMPLICES

ticipation and Azcona was the principal by induction. The two other
accused inflicted wounds after the fatal shot by the principal by direct
participation, when Cabili was either dead or in the throes of dissolu-
tion.
Held: The two other accused are merely accomplices.

People vs. Antonio

(73 Phil. 421)
Facts: One of the accused attacked and wounded the deceased,
inflicting upon the latter, lacerated wounds on the forehead and on
the neck. When the deceased was already prostrated on the ground
mortally wounded, accused Faustino threw stones against the
wounded man, inflicting contusions on his body. The cause of death
were the wounds on the forehead and neck.
Held: Faustino Divina is only an accomplice.

In these cases, the following rules are indicated:

The one who had the original criminal design is the person
who committed the resulting crime.

Thus, in the case, the son was the one who

entertained the original criminal design, because it was he
who caused the death of the victim which gave rise to the
crime of homicide.
The father, who continued choking the victim after
the fatal blow was given, merely concurred in the criminal
purpose of his son.
2. The accomplice, after concurring in the criminal purpose
of the principal, cooperates by previous or simultaneous
acts.

When the cooperation is by simultaneous act, the

accomplice takes part while the crime is being committed
by the principal by direct participation or immediately
thereafter.

Thus, in the cases mentioned, the principal had al-

ready attacked the victim before the accomplice struck the
said victim.
3. The accomplice in crimes against persons does not inflict
the more or most serious wounds.

556
 ACCOMPLICES Art. 18

Problem: A gave a fist blow on the face of B. Seeing what A had

done to B, C stabbed B to death. Is A an accomplice? No, because the
one who had the original criminal design was the wound inflicted by
C being the more serious. A could not have concurred in the criminal
purpose of C, because A was the first to strike B and A did nothing
more after C had stabbed B.

The criminal responsibility of A and C will be individual, that

is, each is responsible for the act actually performed by him.
But if C stabbed B first, and as B was in a dying condition, A
gave a first blow on B's face, then A is an accomplice.
Reason: When A gave a fist blow on the face of B after the latter
had been mortally wounded by C, it shows that A concurred in the
criminal purpose of

Being present and giving moral support when a crime is being

committed will make a person responsible only as accomplice
in the crime committed.
Absent knowledge of the criminal purpose of the principal, giving
aid or encouragement, either morally or materially, in the commission
of the crime, mere presence at the scene of the crime does not make
one an accomplice. (People vs. Toling, No. L-28548, July 91
SCRA 382, 400)

People vs. Ubina

Phil. 515)

Facts: Ubina who was defeated by Aureliano Carag for

the mayorship of Solana, Cagayan, and whom Carag had insulted,
conspired with five persons to kill Carag. These five persons brought
along Romero Pagulayan, Pascual Escote, and Pablo to the
place where Carag was killed, but the actual killing was perpetrated
by the said five persons. Their participation in the act of killing Carag
was limited to being present and staying around the premises, while the
five conspirators fired at the victim and carried out their purpose.
Held: Other than being present and, perhaps, giving moral sup-
port, no act of Pagulayan, Escote, and Binayug may be said to
constitute a direct participation in the acts of execution. Neither did
they induce in any manner, the commission of the offense; they joined
the conspira- tors after the latter had decided to commit the act. Their
presence and
557
 Art. 18 ACCOMPLICES

company was not indispensable and essential to the perpetration of the

murder. They are only accomplices.

The moral aid may be through advice, encouragement or

agreement.
But the complicity which is penalized requires a certain degree
of cooperation whether moral, — through advice, encouragement,
or agreement, or material, — through external acts. In the case of
accused there is no evidence of moral or material coopera-
tion, and none of an agreement to commit the crime in question. Her
mere presence and silence, while they are simultaneous acts, do not
constitute cooperation, for it does not appear that they encouraged or
nerved her co-accused Martin to commit the crime of arson; her failure
to give alarm, being a subsequent act, does not make her liable as an
accomplice. (People vs. Silvestre and Atienza, 56 Phil. 353 , 358)

The responsibility of the accomplice is to be determined by acts

of aid and assistance, either prior to or simultaneous with the com-
mission of the crime, rendered knowingly for the principal therein,
and not by the mere fact of having been present at its execution,
unless the object of such presence was to encourage the principal or
to apparently or really increase the odds against the victim.
an intent, concurring with some overt act, be specifically
shown by the evidence of the prosecution. (Decision of Supreme Court
of Spain, June cited in U.S. vs. Guevara, 2 Phil. 528, 532)
But the advice, encouragement or agreement should not be the
determining cause of the commission of the crime by the principal
by direct participation; otherwise, the one who gave the advice or
encouragement or the one who entered into the agreement would be
a principal by inducement. When the accomplice gives an
encouragement to, or enters into an agreement with the principal,
he knows the principal is going to commit the crime.

Third requisite:

There must be a relation between the criminal act of the prin-

cipal and the act of the one charged as accomplice.
It is not enough that a person entertains an identical criminal
design as that of the principal. There must be a relation between the

558
 ACCOMPLICES Art. 18

criminal act of the principal by direct participation and that of the

person charged as accomplice.

People vs. De la Cruz

(61 Phil. 162)
Facts: A young lady was attacked by Reyes, her suitor, by throw-
ing her on the ground and passing his hand over her body. When they
learned of the incident, the parents of both parties agreed that the father
of Reyes would punish him. In the meantime, the brother of the young
lady, not knowing of such agreement, armed himself with a pistol and
looked for Reyes to avenge the honor of his sister. In the house of the
young lady, where Reyes was about to be punished, she immediately
stabbed him on the chest with a pen knife. At the time, the brother of
the young lady was under the house, again with his pistol, waiting for
Reyes to come down in order to kill him. For the death of Reyes, the
brother of the young lady was accused as accomplice.

Held: There can be no liability by reason of complicity if there

is no relation between the criminal act of the principal by direct
participation and that of the person charged as accomplice. The most
that could be said against the brother of the young lady, is that he
intended to kill the deceased but, even then, he did nothing in con-
nection with his sister's act of attacking and killing said deceased.

An accomplice may be liable for a crime different from that

which the principal committed.
1. A attacked B with treachery, the attack being sudden and
unexpected. When B was mortally wounded, father of A,
appeared, placed himself upon B's abdomen, and held his
hands. Later, D also appeared and held both knees of B,
C and D made it possible for A to search the body of B for
the latter's revolver. It was not shown that C and D knew
of the manner A attacked B. What they knew was that A
had unlawfully attacked and wounded B. It was held that
A was guilty of murder qualified by treachery (Art. 248)
and C and D were guilty as accomplices in the crime of
homicide. (Art. 249) Art. 62, paragraph 4, provides that
the circumstances which consist in the material execu-
tion of the act or in the means employed to accomplish it
(among them being treachery), shall serve to aggravate the
liability (or qualify the crime) only of those persons who
had knowledge of them at the time of the execution of the

559
 ACCOMPLICES

act or their cooperation therein. (See People vs. Babiera,

52 Phil. 98)
2. A, a guard, asked C to help him (A) remove from
the NARIC warehouse some sacks of rice belonging to the
NARIC, and sold them to D.
The qualifying circumstance of grave abuse of confi-
dence which in the case of A makes the crime qualified theft
(Art. 310) does not apply to C, who was not in confidential
relations with the C is guilty as accomplice in the
commission of the crime of simple theft (Art. 308) only. (See
People vs. Valdellon, 46 Phil. 245, 252)
Where the appellants may be said to have joined only
in the plan to rob, by providing the banca used in the rob-
bery, which makes them accomplices, they are not liable
for the killing committed by the principals in the course
of the robbery. Having been left in the banca, they could
not have tried to prevent the killing, as is required of one
seeking relief from liability for assaults committed during
the robbery. (People vs. No. L-30028, May
114 SCRA 131, 148, 149)
Art. 62, par. 3, provides that aggravating circumstances
which arise from the private relations of the offender with
the offended party shall aggravate the liability (or qualify
the crime) of the principals, accomplices and accessories
as to whom such circumstances are attendant.

Distinguish accomplice from principal in general.

An accomplice is one who does not take a direct part in the com-
mission of the act, who does not force or induce others to commit it,
or who does not cooperate in the commission of the crime by another
act without which it would not have been accomplished, yet cooper-
ates in the execution of the act by previous or simultaneous actions.
(People vs. Silvestre, 56 Phil. 353 , 356)

Distinguish an accomplice from a principal by cooperation.

The participation of the offender in a case of complicity, although
necessary, is not indispensable as in the case of a co-principal by coop-

560
 ACCOMPLICES Art. 18

eration. For example, if one lends his dagger or pistol to a murderer

fully knowing that the latter will commit murder, he undoubtedly
cooperates in the commission of the crime of murder with a previous
act which, however, cannot be considered indispensable for the reason
that even though the offender did not lend his dagger or pistol, the
murderer could have obtained it somewhere else or from some other
person. In such a case, the participation of the offender is that of an
accomplice by virtue of the provisions of this article. (See 1 Viada,
Cod. 370)

Where the accused struck the deceased on the forehead with a

piece of wood, rendering the latter unconscious, thereby facilitating
the subsequent slaying of the deceased by the other accused, the
former must be deemed responsible as an accomplice in the killing.
(People vs. 106 Phil. 1003, 1007)

Note: The accused who struck the deceased on the forehead

must have knowledge of the intention of the other ac-
cused to kill the deceased before he struck the deceased.
If he had no such knowledge, he is not an accomplice
in the killing of the deceased. He is principal by direct
participation in the crime he personally committed, say,
physical injuries.

While the act of holding the victim by Romeo was one of help and
cooperation, it is not indispensable for the commission of the offense
by the others who boloed the victim, as the hacking could have been
committed just the same without his holding the victim. Romeo is
only an accomplice. (People vs. Geronimo, No. L-35700, Oct.
53 SCRA 246, 259)

Note: If there was conspiracy between Romeo and the others,

he would be liable as notwithstanding the fact
that his cooperation was not indispensable.

Distinguish an accomplice from a principal by direct

partici- pation.
In both, there is community of criminal design.
By the overwhelming weight of authority, the same
community of purpose and intention is necessary to jus-

561
Art. 18 ACCOMPLICES

tify the conviction of an accused person in the character of

accomplice that is necessary to sustain conviction in the
character of principal. (People vs. 44 Phil. 38, 49)
We must bear in mind that unity of purpose and of
action must exist, not only among the principals themselves,
but also between the principals and the accomplices, and
that what distinguishes the latter from the former is that
the accomplices cooperate in the execution of the offense
by previous or simultaneous acts other than those which
would characterize them as principals, pursuant to Article
17 of the Revised Penal Code. (People vs. C.A.,
46 O.G.
The person who entertains the owner of a house
while robbers are assaulting it, so that he will not return
thereto until after the robbery has been consummated, is
an accomplice in the crime, inasmuch as he cooperated
therein by simultaneous act, although not an indispensable
one for its accomplishment. (I Viada 370, cited in U.S. vs.
Diris, 133, 136)
This case implies that the owner of the house was
entertained at some distance from the place where the
robbery was committed. If that person was in the same
place, say under the house, talking with the owner of the
house in order to distract his attention from what was going
on upstairs, he was a principal by direct participation,
serving as guard to warn his companions in case there
should arise any necessity for giving an alarm.

(2) As to the acts performed, there is no clear-cut distinction

between the acts of the accomplice and those of the prin-
cipal by direct participation. That is why, in case of doubt,
it shall be resolved in favor of lesser responsibility, that is,
that of mere accomplice.
(3) Between or among principals liable for the same offense,
there must be conspiracy; but between the principals and
the accomplices, there is no conspiracy. (People vs.
76 Phil. 571 , 575)

562
 ACCESSORIES Art. 19

Art. 19. Accessories. — A c c e s s o r i e s ar e t h o s e w h o , h a v i n g

k n o w l e d g e o f th e c o m m i s s i o n o f th e c ri me , an d w i t h o u t hav-
in g p a r t i c i p a t e d t h e r e i n , e i t h e r a s p r i n c i p a l s o r a c c o m p l i c e s
, tak e par t s u b s e q u e n t t o it s c o m m i s s i o n i n an y o f th e
followin g manners :
1 . B y p ro fi ti n g t h e m s e l v e s o r a s s i s t i n g th e o f f e n d e r t o
profit b y th e effec t s o f th e cri me ;
2 . B y c o n c e a l i n g o r d e s t r o y i n g th e bod y o f th e cr i m
e o r th e effects o r i n s t r u m e n t s th ereof, i n o rd e r t o p r e v e n t it s
discovery ;
3 . B y h a r b o r i n g , c o n c e a l i n g , o r a s s i s t i n g i n th e e s c a p
e o f th e p r i n c i p a l o f th e c r i m e , p r o v i d e d th e a c c e s s o r y act s wi t
h ab u s e o f hi s p u b l i c f u n c t i o n s o r w h e n e v e r th e a u t h o r o f th
e cr i m e i s gu i l t y o f t r e a s o n , p a r r i c i d e , m u r d e r , o r a n a t t e m p t
t o tak e th e life o f th e C h i e f E x e c u t i v e , o r i s k n o w n t o b e
h ab i tu - ally gu il t y o f so m e o t h e r c r i m e .

An accessory does not participate in the criminal design, nor

cooperate in the commission of the felony, but, with knowledge of the
commission of the crime, he subsequently takes part in three ways: (a)
by profiting from the effects of the crime; (b) by concealing the body,
effects or instruments of the crime in order to prevent its discovery;
and (c) by assisting in the escape or concealment of the principal of
the crime, provided he acts with abuse of his public functions or the
principal is guilty of treason, parricide, murder, or an attempt to take
the life of the Chief Executive, or is known to be habitually guilty of
some other crime. (People vs. Verzola, No. L-35022, Dec. 21, 1977,
80 SCRA 600, 608)

IMPORTANT WORDS AND PHRASES IN ART. 19.

"Having knowledge."
An accessory must have knowledge of the commission of
the crime, and having that knowledge, he took part subsequent
to its commission.
In the absence of positive proof, direct or circumstantial,
of his knowledge that the goods were of illegal origin or

563
Art. 19 ACCESSORIES

fraudulently acquired by the vendors at the time of the

transaction, a customer who purchases such goods cannot be
held criminally responsible as accessory. (People vs. Labrador,
C.A., 36 O.G. 166)
Thus, if A buys a stolen property, not knowing that it was
stolen, he is not liable.

Mere possession of stolen property does not make the ac-

cused an accessory where the thief was already convicted.
The legal principle that unexplained possession of stolen articles
is sufficient evidence to convict one of theft is not applicable where
the principal or author of the robbery has already been convicted
and where there is no proof that the alleged accessory knew of the
commission of the crime and that he profited himself by its proceeds.
It is within the realm of possibilities that he received it honestly, in
the legal course of transactions without knowing that it was stolen.
(People vs. 40 O.G. 279)

Note: If there has been no one convicted as the thief, the pos-
sessor should be prosecuted as principal of the crime of
theft.

Entertaining suspicion that a crime has been committed is

not enough.
Entertaining suspicion that the carabao was a stolen object,
is not of itself proof of knowledge that a crime has been committed.
"Knowledge" and "suspicion" are not synonymous terms. "The word
is defined as being the imagination of the existence of
something without proof, or upon very slight evidence, or upon no
evidence at (Cook vs. Singer, 32 P. 2d. 430, cited in Words and
Phrases, Vol. 40, p. 929)
If the accused had entertained some suspicion, it was only at
that time when the truck driven by him with its load of a carabao
had already left the camarin and on the way to Lantangan. But his
suspicion was merely the product of his imagination founded on a
fact that of itself, and under ordinary circumstances, will not give
rise to a belief that the carabao was stolen, because transporting at
nighttime is not an uncommon happening in everyday life, especially

564
 ACCESSORIES Art.

when the trip was done in obedience to an order of his superior which
he cannot ignore or disobey. The suspicion of under the
circumstances, was but a flickering thought based on nothing more
than the product of imagination. Upon the foregoing facts, we are of
the opinion, and so hold, that the appellant is entitled to acquittal.
(People vs. Batuampo, C.A., 62 O.G. 6269-6270)

Knowledge of the commission of crime may be acquired

subsequent to the acquisition of stolen property.
U.S. vs.
(3 Phil. 110)
Facts: The robbers took and carried away carabaos belonging to
another. These animals were found in the possession of A who acquired
them without knowing that they had been illegally taken. When the
owners of the carabaos informed A that they were illegally deprived
of their animals, A demanded the payment of one-half of what he had
paid for them. The owners promised to come back with the money.
When the owners came back, A informed them that he had returned
the animals to the persons from whom he had bought them.

Held: To declare the accused guilty as accessory, it is not neces-

sary that he should have acquired the property, knowing at that time
that it had been stolen. It is sufficient that after acquiring that knowl-
edge, he concealed or disposed of the property, thereby depriving the
owner thereof.

Knowledge of the commission of crime may be

established by circumstantial evidence.
When a person knew that his co-accused had no legitimate
business; that some of the goods were taken to him as early as 5:00
to 6:00 o'clock in the morning; and that said co-accused was neither
a barber nor the owner of a sari-sari store such as would induce in
him a rational belief that the latter's possession of said goods (among
them barber's utensils) was legitimate; the conclusion is that he had
knowledge of their illegal source. (People vs. Dalena, CA-G.R. Nos.
and Oct. 25, 1954)

2. "Commission of the crime."

The crime committed by the principal must be proved
beyond reasonable doubt.

565
 Art. 19 ACCESSORIES

Thus, where it is doubtful whether a woman killed her

husband maliciously, as it is possible that she might have acted
in self-defense, the fact that their servant took part in the burial
of the deceased in a secluded place would not make the servant
an accessory in parricide, an offense which was not conclusively
proven. (See People vs. Pardito, G.R. No. March

3. "Without having participated therein either as principals or ac-

complices."
A attacked and fatally wounded B. Seeing B fall to the ground
as a result of the fatal blow made by A, C and D hit B with a piece
of wood each was carrying. When B died, A, C, and D buried the
corpse to prevent the authorities from discovering the crime.
Can be held liable as an accessory? No, because he already
participated as principal. Are C and D accessories? No, because
they already participated as accomplices.
4. "Take part subsequent to its commission."
The accessory takes part after the crime has been com-
mitted. Note that paragraphs Nos. 1, 2 and 3 of Art. 19, which
describe the different acts of the accessory, refer to those acts
performed after the crime had been committed.

acts of accessories.
1. By profiting themselves or assisting the offender to profit by the
effects of the crime.
The crime committed by the principal under this paragraph
may be any crime, provided it is not a light felony.
a. By profiting themselves by the effects of the crime.
Examples:
A person who received any property from another, and
used it, knowing that the same had been stolen, is guilty
of the crime of theft as an accessory. (People vs.
76 Phil. 463 , 467)
In murder, one who shared in the reward given for
the commission of the crime (U.S. vs. Empainado, 9 Phil.
613) profited by the effects of the crime.

566
 ACCESSORIES Art. 19

But one who received from the owner of a sto-

len jeep, as a reward for locating it in the possession of
someone who had bought it, is not an accessory, because
the amount of P200 was in the nature of a reward and
not fruits or effects of the crime. (People vs. Yatco,
51 O.G. 260)

The accessory should not take the property without the

consent of the principal.
In profiting by the effects of the crime, the accessory
must receive the property from the principal. He should
not take it without the consent of the principal. If he took it
without the consent of the principal, he is not an accessory
but a principal in the crime of theft. Theft may be commit-
ted by taking with intent to gain, personal property from
one who stole it, without the latter's consent.

When is profiting by the effects the crime punished as the

act of principal, and not the act of accessory?
Whe n a person kn owi n gl y acquired or received
property taken by the brigands. (Art. 307, Revised Penal
Code)
b. Assisting the offender to profit by the effects of the crime.
Examples:
A person who receives any property from another,
which he knows to have been stolen, and sells the same for
the thief to whom he gives the proceeds of the sale, is guilty
of the crime of theft, as an accessory. (U.S. vs. Galanco,
Phil. 575)
In kidnapping for ransom, those who acted as run-
ners or couriers in obtaining the ransom money (People
vs. Magsino, G.R. No. L-3649, Jan. 29, 1954) assisted the
offenders to profit by the effects of the crime.
One who takes part in cattle rustling by profiting
himself by its effects with knowledge of the crime is only
an accessory after the fact. (Taer vs. Court of Appeals, G.R.
No. 85204, June 18, 1990, 186 SCRA 598, 604-605)

567
Art. 19 ACCESSORIES

An accessory should not be in conspiracy with the princi-

pal.
A conspired with others to steal certain goods in the
customhouse. A agreed to pay, as in fact he paid them,
a substantial sum of money upon delivery of the stolen
goods in his warehouse from the wagons on which his co-
conspirators loaded the goods at the customhouse. It was
held that A was guilty of the crime of theft as a principal
and not merely as an accessory. (U.S. vs. Tan Tiap Co., 35
Phil.

2. By concealing or destroying the body of the crime to prevent its

discovery.
The crime committed by the principal under this paragraph
may be any crime, provided it is not a light felony.

"Body of the crime."

Same as "corpus delicti."
It means that a specific offense was in fact committed by
someone. (People vs. Marquez, 43 O.G. No. 5)

Examples of concealing the body of the crime.

a. Those who assist in the burial of the victim of a homicide to
prevent the discovery of the crime incur the responsibilities
of accessories. (U.S. vs. Leal, 1 Phil. 118)
In homicide or murder, it is necessary to prove that a
particular person is the victim. The victim must be prop-
erly identified. Thus, if the body of the victim cannot be
found, the crime cannot be proved. Hence, the concealing
of the body of the victim is in effect concealing the crime
itself.
b. Furnishing the means to make it appear that the deceased
was armed, by placing a weapon in his hand when already
dead, and that it was necessary to kill him on account of
his resistance to the constabulary men; or making it ap-
pear that the deceased who had been arrested ran away.
(U.S. vs. Cuison, 20 Phil. 433; People vs. Saladino, G.R.
No. May 23 , 1958)

568
 ACCESSORIES Art. 19

This example may serve to illustrate the body

of the crime."
The mere act of a person of carrying the cadaver of one
unlawfully killed, when it was buried to prevent the discovery
of the crime, is to make him responsible as an acces-
sory under paragraph 2 of Art. 19. (People vs. Galleto, 78 Phil.
820)

There must be an attempt to hide the body of the crime.

With respect to appellant he should be acquitted. Ac-

cording to his affidavit — the only evidence against him — he
was merely ordered to board the jeepney, not knowing, not even
suspecting, the reason or purpose of the ride. He did not take
part in the killing, neither did he profit by it, nor try to conceal
the same from the authorities. It is true that he helped his com-
panions in removing the two dead bodies from the and
throwing them into the ditch; but there was no attempt to bury
or hide said bodies, not even cover them with grass or bushes. In
fact, the evident design and plan of the culprits as unfolded during
the trial was not to hide the bodies, but to just leave them on the
roadside so as to make it appear that the two victims were killed
by Huks in an encounter with the Government forces. (People vs.
De la Cruz, 100 Phil. 624, 633)

Concealing or destroying the effects or instruments of the crime

to prevent its discovery.
A person who received personal property knowing that it
had been stolen, for the purpose of concealing the same, as in
fact he concealed it, is guilty of the crime of theft as an acces-
sory. (U.S. vs. Villaluz, 32 Phil. 376)
He is guilty of the crime of homicide as an accessory, under
paragraph No. 2 of Art. 19, who received a pistol or a knife, know-
ing that it had been used in killing the deceased, and concealed
it.
The stolen property is the effect of the crime. The pistol or
knife is the instrument of the crime.
A person who destroyed the ladder which he knew had
been used by another in climbing the wall of the house where

569
Art. 19 ACCESSORIES

the latter had committed robbery, is guilty of the same crime

as accessory. The ladder is an instrument of the crime.

prevent its discovery."

The pronoun refers to the word "crime." In the case of
U.S. vs. 32 Phil. 376, 380, the Supreme Court stated:
"Such facts also show that her concealment of said articles was
for the purpose of preventing and defeating the discovery of the
crime."
Note that the concealing or destroying of the body of the
crime, the effects or instruments thereof, must be done in order
to prevent the discovery of the crime. Note also that what is
concealed is the body of the crime, the effects or instruments
thereof, not the principal who committed the crime. If the prin-
cipal is concealed, paragraph 3 of Art. 19 applies.
Simply assisting the principal in bringing the body down
the house to the foot of the stairs and leaving said for anyone
to see, cannot be classified as an attempt to conceal or destroy
the body of the crime. The concealing or destroying of the body
of the crime, the effects or instruments thereof, must be done
to prevent the discovery of the crime. In this case, the body was
left at the foot of the stairs at a place where it was easily visible
to the public. (People vs. Verzola, No. L-35022, Dec. 21 , 1977,
80 SCRA 600, 609)

Is a person who merely received a property knowing it to be

stolen liable as an accessory?
In People vs. Tanchoco, 76 Phil. 463 , it was held: "A person
who receives any property from another, knowing that the same had
been stolen, is guilty of the crime of theft, as an accessory after the
fact A person who receives any property from another,
which he knows to have been stolen, for the purpose of selling the
same and to share in the proceeds of the sale, is guilty of the crime of
theft, as an accessory after the fact. (U.S. vs. Galanco, Phil. 575 )
In the same manner that a person who receives stolen property for
the purpose of concealing the same, is likewise guilty of the crime
of theft as an accessory after the fact." (U.S. vs. Villaluz, 32 Phil.
376)

570
 ACCESSORIES Art. 19

Note: Is it sufficient that the purpose to profit exist? Is it

ficient that there is a purpose to conceal?

3. By harboring, concealing or assisting in the escape of the prin-

cipal of the crime.

Two classes of accessories are contemplated in paragraph

of Article 19.
a. Public officers who harbor, conceal or assist in the escape of the
principal any crime (not light felony) with abuse his public
functions.
Requisites:
(1) The accessory is a public officer.

(2) He harbors, conceals, or assists in the escape of the princi-

pal.
(3) The public officer acts with abuse of his public functions.
(4) The crime committed by the principal is any crime, provided
it is not a light felony.
b. Private persons who harbor, conceal or assist in the escape of
the author of the crime — guilty of treason, parricide, murder,
or an attempt against the life of the President, or who is known
to be habitually guilty of some other crime.
Requisites:
(1) The accessory is a private person.
(2) He harbors, conceals or assists in the escape of the author
of the crime.
(3) The crime committed by the principal is either: (a) treason,
(b) parricide, (c) murder, (d) an attempt against the life
of the President, or (e) that the principal known to be
habitually guilty of some other crime.

"Habitually guilty of some other crime."

Thus, if a person was previously punished three times for
less serious physical injuries and now commits estafa, the one

571
Art. 19 ACCESSORIES

who helps in his escape is liable as an accessory although the

accessory is a private individual.
But the accessory must have knowledge of the principal
being habitually guilty of some other crime, because the law
says "or is known to be habitually guilty of some other crime."

A mayor who refused to prosecute offender is accessory.

Abusing his public office, the president of the town of Cabiao re-
fused to prosecute the crime of homicide and thus made it possible for
the principal offender to escape. He refused to make an investigation
of the serious occurrence, of which complaint was made to him. The
municipal president was found as accessory. (U.S. vs. Yacat,
1 Phil. 443)

One who kept silent with regard to the crime he witnessed

is not an accessory.
A person who saw the commission of a crime, say murder, by
another whom he knew, kept silent with regard to it, and did not
report it to any of the authorities is not liable even as an accessory.
(U.S. vs. Caballeros, 4 Phil. 350; U.S. vs. Callapag, 21 Phil. 262)
The reason for this ruling is that such an omission is not one
of the different acts enumerated in Art. 19 of the Code. Such omis-
sion is not harboring, or concealing or assisting in the escape of the
principal. (Art. 19, par. 3)
But if that person went to the authorities and volunteered false
information which tended affirmatively to deceive the prosecuting
authorities and thus to prevent the detection of the guilty parties
and to aid them in escaping discovery and arrest, he is liable as an
accessory. (U.S. vs. 15 Phil. 408, 415)
Where the accused was present when her husband was shot,
but she did not only enjoin her daughter not to reveal to anyone what
the latter knew, but also warned her daughter that she would kill
her if she would tell it to somebody, and when the peace officers who
repaired to their house to investigate what had happened asked her,
she (the accused) claimed that she had no suspects in mind, the ac-
cused thereby concealed or assisted in the escape of the principal in
the crime, which made her liable as an accessory, under paragraph

572
 ACCESSORIES Art. 19

3 of Article 19 of the Revised Penal Code, to the crime of murder.

(People vs. Talingdan, No. July 6, 1978, 84 SCRA 19,

liability is subordinate and subsequent.

Where the alleged incendiary was acquitted, it is neither proper
nor possible to convict the defendant as accessory. The responsibil-
ity of the accessory is subordinate to that of the principal in a crime,
because the accessory's participation therein is subsequent to its
commission, and his guilt is directly related to that of the principal
delinquent in the punishable act. If then the facts alleged are not
proven in the prosecution instituted, or do not constitute a crime, no
legal grounds exist for convicting a defendant as an accessory after
the fact for a crime not perpetrated. (U.S. vs. Mendoza, 23 Phil. 194,
196)

When is conviction of accessory possible, even if

principal is acquitted?
Conviction of an accessory is possible notwithstanding the ac-
quittal of the principal, if the crime was in fact committed, but the
principal was not held criminally liable, because of an exempting
circumstance (Art. 12), such as insanity or minority. In exempting
circumstances, there is a crime committed. Hence, there is a basis
for convicting the accessory.
Thus, if a minor, eight years old, stole a ring worth and
B, knowing that it has been stolen, buys it for P200.00, B is liable
as accessory in the crime of theft, even if the principal (the minor) is
exempt from criminal liability. (See U.S. vs. Villaluz, 32 Phil. 376)

Apprehension and conviction of the principal is not

necessary for the accessory to be held criminally liable.
Even if the principal is still unknown or at large, the accessory
may be held responsible provided the requisites prescribed by law for
the existence of the crime are present and that someone committed
it.
May the trial of an accessory proceed without awaiting the
result of the separate charge against the principal? The answer is in
the affirmative. The corresponding responsibilities of the principal,
accomplice and accessory are distinct from each other. As long as

573
Art. 19 ACCESSORIES

the commission of the offense can be duly established in evidence,

the determination of the liability of the accomplice or accessory can
proceed independently of that of the principal. (Vino vs. People, G.R.
No. 84163, Oct. 19, 1989, 178 SCRA 626, 632)

When the alleged principal is acquitted, may the

accessory be convicted?
In United States vs. Villaluz, supra, a case involving the crime
of theft, it was ruled that notwithstanding the acquittal of the prin-
cipal due to the exempting circumstance of minority or insanity, the
accessory may nevertheless be convicted if the crime was in fact
established.
Corollary to this is United States vs. Mendoza, supra, where it
was held in an arson case that the acquittal of the principal must
likewise result in the acquittal of the accessory where it was shown
that no crime was committed inasmuch as the fire was the result of
an accident. Hence, there was no basis for the conviction of the ac-

Where the commission of the crime and the responsibility of

the accused as an accessory are established, the accessory can be
convicted, notwithstanding the acquittal of the principal. (Vino vs.
People, supra, at 632-634)

People vs. Billon

(C.A., 48 O.G. 1391)

Facts: Felicisimo Billon alias Billon was prosecuted,

together with Gorgonio who was not brought to trial for be-
ing at large, in the Court of First Instance of Pangasinan for murder.
Billon positively testified that it was Advincula who shot De Castro to
death. On the other hand, he admitted that he had harbored him at his
house on 861 B. Hidalgo, Manila, after the commission of the crime,
which was clearly one of murder. Billon also admitted that he assisted
in the escape of Advincula. Billon was found guilty as accessory instead
of as principal. On appeal, he contended that he could not be declared
as an accessory because Advincula, the principal, was not yet tried and
found guilty.

Held: Art. 19, paragraph 3, is stated in Spanish as follows:

ocultando o en fuga al autor
del delito, cuando el encubridor hace con abuso de funciones publicas o

574
 ACCESSORIES Art. 19

cuando de parricidio, asesinato, atentado contra

la vida del Jefe Ejecutivo, o reo habitual de otro delito."
(las cursivas nuestras.)

From the wordings of the above quoted legal provision, it is not

necessary that the principal should be first declared guilty before the
accessory can be made liable as such. Apparently, the opposite is the
rule, contended by the appellant's counsel, following the English
text of the law.
By harboring, concealing, or assisting in the escape
of the principal of the crime, provided the accessory acts with
abuse of his public functions or whenever the author of the crime
is guilty of treason, parricide, murder, or an attempt to take the
life of the Chief Executive, or is known to be habitually guilty of
some other crime." (Italics

However, the Spanish text should prevail.

The accused cannot be held liable as accessory under

para- graph 3 of Art. if the principal charged with
murder died before trial, because had he been alive he
might have been found guilty only of homicide.
We note at once that a person may be held guilty as an accessory
after the fact under pars. 1 and 2 of Article 19, even if the principal of
the crime is unknown or it cannot be proven who committed the crime,
provided that the accessory after the fact knew of the perpetration of
the offense, because under the phraseology of the said paragraphs,
it seems to us clear enough that the prosecution prove that a crime
was committed without being put to prove who committed it, and
that the person sought to be held guilty as accessory after the fact
profited from the effects thereof or concealed the body of the crime or
the instruments used in the commission thereof in order to impede its
discovery. Thus, a person, knowing the illegal source of a thing that
is stolen, benefits therefrom, is guilty as an accessory after the fact,
even if the author of the theft has not been discovered. But
is here charged with having assisted in the escape of Balisi, not with
having profited from, or having concealed the effects or instruments of
the crime. The principle we have just stated cannot apply to a person
who is sought to be implicated as an accessory after the fact because he
concealed the principal of the crime or assisted him in escaping when
the said principal is guilty of treason, parricide, murder, an attempt
on the life of the Chief Executive or is otherwise habitually known

575
Art. 19 ACCESSORIES

to have committed another crime. And we draw this conclusion from

the very wording of the law itself. It is our view that not only must
the crime be proven, but as well the identity of the author
be established, and both these in a full-dress criminal trial. In this
case before us, Balisi was not tried, nor was final judgment rendered
against him, because of his death prior to arraignment. (People vs.
C.A., 59 O.G. 2474)

Reasoning in the Barlam case refuted.

As far as the accused who actually stands trial and is found
guilty as accessory is concerned, he is given a full hearing. Whether
the principal is brought to court or is the prosecution has to
prove the commission of the crime charged, with the same quantum
of evidence, and the participation in it of all the persons named in the
information. The accessory is accorded the opportunity to refute the
evidence of the prosecution establishing the crime and the participation
of the alleged principal. Upon the evidence adduced by both parties
and for purposes of conviction of the accessory, the court can make a
finding as to whether the crime charged has been established and the
other accused is the principal thereof, without pronouncing judgment
on him. (People vs. Inovero, 65 O.G. [March 31 , 1969 issue] 3168)

The arraignment, trial and conviction of accessory

during the pendency of a separate case against the
principal are null and void.
The arraignment, trial and conviction of an accessory after the
fact without the principal of the crime having first been tried and
convicted in the separate case filed and pending at the time of the
arraignment, trial and decision of the case against the accessory, is
not proper and violates the legal system of procedural orderliness.
In view of all the foregoing, the arraignment, trial and conviction
of the appellant Gaw Lin are hereby declared null and void. The case
is remanded to the court below so that, in the event the defendants in
Criminal Case No. 68874 are tried and convicted by final judgment of
the crime of qualified theft, the defendant Gaw Lin in Criminal Case
No. 71278, who allegedly purchased the stolen goods with knowledge
of the commission of the crime, may be arraigned and tried, and the
proper judgment rendered by the trial court. (People vs. Gaw Lin
alias Juan Gaulin, C.A., 63 O.G. 3821 , 3824)

576
 ANTI-FENCING LAW OF 1979

But when the principal is not yet the

accessory may be prosecuted and convicted.
In a case, the accused was prosecuted as accessory to the crime
of qualified theft by profiting himself assisting the offender to
profit by the effects of the crime, under par. 1 of Art. 19.
It may be asked whether or not appellant may be legally con-
victed as accessory after the fact of the crime of qualified theft, when
up to now the principal has not yet been prosecuted for failure to
identify and apprehend him. We believe that the answer should be
in the affirmative. The crime of qualified theft has been proved; the
nonprosecution of the principal for the reason that his identity has not
as yet been discovered, cannot serve as basis to free appellant from
the liability incurred by him as an accessory after the fact. (People
vs. Ramos, C.A., 62 O.G. 6862)

For one to be found guilty and punished as an accessory, it is

not necessary that there be a principal duly convicted (Cuello
Codigo Penal, I, pages 515-516, Octava Edicion). Neither the
letter nor the spirit of the law requires that the principal be convicted
before one may be punished as an accessory. As long as the corpus
delicti is proved and the accessory's participation as such shown, he
can be held criminally responsible and meted out the corresponding
penalty. (Inovero vs. Coronel, 65 O.G. 3160)

Can there be an accessory even after the principal was con-

victed?
Yes, by presenting oneself to serve out the sentence in lieu of
the real culprit. But the crime committed by the real culprit must
be treason, parricide, murder, or an attempt to take the life of the
President, that he is known to be habitually guilty of some other
crime, because this is possible only when the accessory is a private
individual.

Heavy penalties for accessories in robbery and theft.

PRESIDENTIAL DECREE NO. 1612
ANTI-FENCING LAW OF 1979
SECTION Title. — This decree shall be known as the Anti-
Fencing Law.

577
 ANTI-FENCING LAW OF 1979

SEC. 2. of Terms. — The following terms shall mean

as follows:
a. is the act of any person who, with intent to
gain for himself or for another, shall buy, receive, possess, keep,
acquire, conceal, sell or dispose of, or shall buy and sell, or in
any other manner deal in any article, item, object or anything of
value which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft.
b. "Fence" includes any person, firm, association, cor-
poration or partnership or other organization who/which commits
the act of fencing.
3. Pen alties. — Any person guilty of fencing shall be pun-
ished as hereunder indicated:
a. The penalty of prision mayor, if the value of the
property involved is more than pesos but not exceeding
pesos; if the value of such property exceeds the latter
sum, the penalty provided in this paragraph shall be imposed in
its maximum period, adding one year for each additional
pesos, but the total penalty which may be imposed shall not
exceed twenty years. In such cases, the penalty shall be termed
reclusion temporal and the accessory penalty pertaining thereto
provided in the Revised Penal Code shall also be imposed.

b. The penalty correccional in its medium and

maximum periods, if the value of the property robbed or stolen
is more than pesos but not exceeding pesos.
The penalty of prision correccional in its minimum
and medium periods, if the value of the property involved is more
than P200 pesos but not exceeding pesos.
d. The penalty of arresto mayor in its medium period
to prision correccional in its minimum period, if the value of
the property involved is over pesos but not exceeding
pesos.
e. The penalty of arresto mayor in its medium period if
such value is over five (5) pesos but not exceeding P50 pesos.
f. The penalty of arresto mayor in its minimum period,
if such value does not exceed P5 pesos.
SEC. 4. Liability of Officials of Juridical Persons. — If the
fence is a partnership, firm, corporation or association, the president
or the manager or any officer thereof who knows or should have known
the commission of the offense shall be liable.

578
 ANTI-FENCING LAW OF 1979

SEC. 5. Presumption of Fencing. — Mere possession of any

goods, article, item, object, or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of fenc-
ing.
SEC. 6. to Sell/Used Second Hand Arti-
cles. — For purposes of this Act, all stores, establishments or entities
dealing in the buy and sell of any good, article, item, object or anything
of value obtained from an unlicensed dealer or supplier thereof, shall
before offering the same for sale to the public, secure the necessary clear-
ance or permit from the station commander of the Integrated National
Police* in the town or city where such store, establishment or entity
is located. The Chief of Constabulary/Director General, Integrated
National shall promulgate such rules and regulations to carry
out the provisions of this section. Any person who fails to secure the
clearance or permit required by this section or who violates any of the
provisions of the rules and regulations promulgated thereunder shall
upon conviction be punished as fence.

SEC. 7. Repealing Clause. — All laws or parts thereof, which

are inconsistent with the provisions of this Decree are hereby repealed
or modified accordingly.
SEC. 8. — This Decree shall take effect upon ap-
proval.
Done in the City of Manila, this 2nd day of March, in the year of
Our Lord, nineteen hundred and seventy-nine.

(Sgd.) FERDINAND E. MARCOS

President of the Philippines

Note: In other crimes punishable by the Revised Penal Code,

the penalty lower by two degrees than that prescribed by
law for the consummated felony shall be imposed upon
the accessories to the commission of a consummated
felony. (Art. 53, Revised Penal Code)

Accessory distinguished from principal and from accomplice.

The accessory does not take direct part or cooperate in, or
induce, the commission of the crime.

*Now, Philippine National Police (PNP).

**Now, Director General, PNP.

579
 Art. 20 ACCESSORIES EXEMPT FROM CRIMINAL
LIABILITY

2. The accessory does not cooperate in the commission of the

offense by acts either prior thereto or simultaneous there-
with.
3. The participation of the accessory in all cases always takes
place after the commission of the crime.
An accessory does not participate in the criminal
design, nor cooperate in the commission of the felony, but,
with knowledge of the commission of the crime, he subse-
quently takes part in any of the three ways mentioned in
Article 19. (People vs. Verzola, No. L-35022, Dec.
80 SCRA 608)

Art. 20 . Accessories who are exempt from criminal liability.

— Th e p e n a l t i e s p r e s c r i b e d for a c c e s s o r i e s sh al l no t b e im-
p o s e d u p o n t h o s e wh o ar e su c h wi t h r e s p e c t t o th ei r s p o u s e s ,
a s c e n d a n t s , d e s c e n d a n t s , l e g i t i m a t e , n a t u r a l , an d a d o p t e d
b r o t h e r s an d si s t e r s , o r r e l a t i v e s b y affinity w i t h i n th e s am e
d e g r e e s , wi t h th e si n gl e e x c e p t i o n o f a c c e s s o r i e s withi
n th e p r o v i s i o n s o f p a r a g r a p h 1 o f th e n ex t p r e c e d i n g
ar ti cl e .

Ground for exemption.

The exemption provided for in this article is based on the ties
of blood and the preservation of the cleanliness of one's name, which
compels one to conceal crimes committed by relatives so near as those
mentioned in this article.

Principals related to accessories exempt from criminal li-

ability.
An accessory is exempt from criminal liability, when the prin-
cipal is his —
spouse, or
(2) ascendant, or
(3) descendant, or
(4) legitimate, natural or adopted brother, sister or relative
by affinity within the same degree.
580
 ACCESSORIES EXEMPT FROM CRIMINAL Art. 20
LIABILITY

Even if only two of the principals guilty of murder are the

brothers of the accessory and the others are not related to him, such
accessory is exempt from criminal liability. It appeared that some
time after the crime was committed, the accused (accessory) accom-
panied some of the other accused to the place where the bodies of the
victims were concealed on the night of the murder, and helped them
to remove and bury these bodies at another and more remote spot.
(U.S. vs. Abanzado, 37 Phil. 658 , 669)

Nephew or niece not included among such relatives.

A nephew, who had witnessed the killing by his uncle of the
deceased, helped in burying the dead body. Is the nephew criminally
liable as an accessory? Yes, because the relationship of uncle and
nephew is not included in Art. 20.

In the case of U.S. vs. 15 Phil. 358, it was held that

the relationship between uncle and niece does not come within any
of the degrees of relationship of spouse, or ascendant, descendant,
legitimate, natural, or adopted brother or sister, or relative by affinity
in the same degree.

Accessory is not exempt from criminal liability even if the

principal is related to him, if such accessory profited by
the effects of the crime, or (2) assisted the offender to
by the effects of the crime.
The last part of Article 20 says, the single exception of
accessories falling within the provisions of paragraph 1 of the next
preceding article." The preceding article is Article 19.
Paragraph 1 of Article 19, covers the accessories who take part
subsequent to the commission of the crime in any of the following
manners:
1. By profiting by the effects of the crime.
2. By assisting the offender to profit by the effects of the
crime.
If the accessory has performed any of those acts, he is liable,
even if the principal is his spouse, ascendant, descendant, brother
or sister, or father-in-law, or son-in-law, or brother-in-law, because
such acts are prompted not by affection but by a detestable greed.

581
Art. 20 ACCESSORIES EXEMPT FROM CRIMINAL
LIABILITY

The daughter stole the earrings and the mother pawned them as
a pledge for her debt. Held: The mother is an accessory for although
she had no part in stealing the earrings, she took steps to obtain gain
and profit from the effects of the crime. The relationship does not
exempt her from liability, because she assisted in obtaining profit
from the theft. (U.S. vs. 14 Phil. 595, 601)

Only accessories under paragraphs 2 and 3 of Article

19 are exempt from criminal liability if they are related
to the principals.
A son who helps his father bury the body of a person whom the
latter has murdered, in order to prevent its discovery; a grandson who,
having knowledge of the commission of robbery by his grandfather,
conceals or destroys the body of the crime, or the effects or instruments
thereof, in order to prevent its discovery; and a person who
conceals, or assists in the escape of his brother who committed treason,
do not incur any liability, because the acts of the accessories in those
cases are covered by paragraphs 2 and 3 of Art. 19. Not one of them
falls under paragraph 1 of Art. 19, because none of those accessories
profits or assists the offender to profit by the effects of the crime.

Does the concealing of the effects of the crime, not to

prevent its discovery, but to obtain gain, fall under
paragraph 2 of Art. 19?
Paragraph 2 of Article 19 requires that the purpose of the con-
cealment is to prevent the discovery of the crime. On the other hand,
paragraph 1 says, "by profiting themselves by the effects of the crime."
Does paragraph 1 mean that the accessory should actually profit from
the effects of the crime? That seems to be the meaning. But suppose
a husband conceals the property stolen by his wife in order to profit
from it later, is he liable as accessory?
It would seem that he may be held liable as accessory, because
his said act is prompted not by affection but by a detestable greed.
In that case, his purpose in concealing the stolen property is not to
prevent the discovery of the crime.

But suppose A, who committed parricide by killing his wife, went

to his adopted brother to hide in the latter's house and his adopted
brother harbored and concealed A because he gave his adopted brother

582
 ACCESSORIES EXEMPT FROM CRIMINAL Art. 20
LIABILITY

is the adopted brother an accessory? Is he criminally

liable?
He is an accessory, because knowing that A committed
he harbored and concealed him. But he is not criminally liable,
because he did not profit by the effects of the crime. The
received by him from A was not the effect of the crime of parricide.

Liability of a public officer when related to the principal.

Is a public officer who, with evident abuse of his office, furnished
the means of escape to his brother who had committed murder crimi-
nally liable as accessory?
Such a public officer does not incur any criminal liability. Ties
of blood or relationship constitutes a more powerful incentive than
the call of duty.
Furthermore, Article 20 does not grant the benefits of exemption
only to accessories who profited or helped the offender profit by the
effects of the crime. This is the only case where the accessory who is
related to the offender incurs criminal liability.

583
 Title Three
PENALTIES

Chapter One
PENALTIES IN
GENERAL

Penalty, defined.
Penalty is the suffering that is inflicted by the State for the
transgression of a law.

Concept of penalty.
Penalty in its general sense signifies pain; especially considered
in the juridical sphere, it means suffering undergone, because of
the action of human society, by one who commits a crime. (Pessina,
Elementos de Penal, pp. 375-376)

Different juridical conditions of penalty:

Must be productive of suffering, without however affecting
the integrity of the human personality.
2. Must be commensurate with the offense — different crimes
must be punished with different penalties.
3. Must be personal — no one should be punished for the
crime of another.
4. Must be legal — it is the consequence of a judgment ac-
cording to law.
5. Must be certain — no one may escape its effects.
6. Must be equal for all.
7. Must be correctional.

584
 PENALTIES

These are the juridical conditions of penalty according to the

classical school on which the Code is mainly based.

What is the purpose of the State in punishing crimes?

To secure ju sti ce. The Stat e ha s an exi sten ce of its own
to maintain, a conscience of its own to assert, and moral principles to
be vindicated. Penal justice must therefore be exercised by the State
in the service and satisfaction of a duty, and rests primarily on the
moral rightfulness of the punishment inflicted. (Albert)

Theories justifying penalty:

(a) Prevention — The State must punish the criminal to pre-
vent or suppress the danger to the State arising from the
criminal acts of the offender.
(b) Self-defense — The State has a right to punish the criminal
as a measure of self-defense so as to protect society from
the threat and wrong inflicted by the criminal.
(c) Reformation — The object of punishment in criminal cases
is to correct and reform the offender.
(d) Exemplarity — The criminal is punished to serve as an
example to deter others from committing crimes.
(e) Justice — That crime must be punished by the State as
an act of retributive justice, a vindication of absolute right
and moral law violated by the criminal.

Social defense and exemplarity justify the penalty of death.

When a person has proved himself to be a dangerous enemy of
society, the latter must protect itself from such enemy by taking his
life in retribution for his offense and as an example and warning to
others. (People vs. 85 Phil. 611 , 635)

The penalty under this Code has three-fold purpose.

(a) Retribution or expiation — The penalty is commensurate
with the gravity of the offense.
(b) Correction or reformation — as shown by the rules which
regulate the execution of the penalties consisting in dep-
rivation of liberty.

585
 Art. 21 PENALTIES THAT MAY BE IMPOSED

(c) Social defense — shown by its inflexible severity to recidi-

vists and habitual delinquents.

Constitutional restriction on penalties.

The Constitution directs that "excessive fines shall not be im-
posed, nor cruel and unusual punishment inflicted."
The punishment is "cruel and unusual" so disproportionate
to the offense committed as to shock the moral sense of all reasonable
men as to what is right and proper under the circumstances.
Example: Those inflicted at the whipping post, or in pillory,
burning at the stake, breaking on the wheel, and the like. (People
vs. De la Cruz, 92 Phil. 906, 908)
Appellant, who has been tried, and sentenced to suffer
one month imprisonment for collecting without legal authority bets for
a daily double race, an offense penalized by Rep. Act No. 3063 by "a
fine of not less than One thousand pesos nor more than Two thousand
pesos or by imprisonment for not less than one month or more than
six or both, in the discretion of the court," maintains that the
penalty as applied to his offense infringes the constitutional provision
against excessive or cruel and unusual punishment. Held: Neither
fines nor imprisonment constitute in themselves cruel and unusual
punishment, for the constitutional stricture has been interpreted as
referring to penalties that are inhuman and barbarous, or shocking
to the conscience vs. U.S., 217 U.S. 349) and fines or impris-
onment are definitely not in this category. (People vs. Dionisio, G.R.
No. March 27, 1968, 22 SCRA 1299, 1301)

Art. 21 . Penalties that may be imposed. — No f e l o n y shal l be

p u n i s h a b l e b y an y p e n a l t y no t p r e s c r i b e d b y la w p ri o r t o it s
commission .

Art. 21 simply announces the policy of the State as regards

punishing crimes.
This article is general in its provisions and in effect prohibits
the Government from punishing any person for any felony with any
penalty which has not been prescribed by the law.

586
 PENALTIES THAT MAY BE IMPOSED Art. 21

It has no application to any of the provisions of the Revised

Penal Code for the reason that for every felony defined in the Code,
a penalty has been prescribed.
The provisions of Art. 21 can only be invoked when a person
is being tried for an act or omission for which no penalty has been
prescribed by law.
Art. 21 is not a penal provision. It neither defines a crime nor
provides a punishment for one. It has simply announced the policy of
the Government with reference to the punishment of alleged criminal
acts. It is a guaranty to the citizen of this country that no act of his,
will be considered criminal until the Government has made it so by
law and has provided a penalty. It is a declaration that no person
shall be subject to criminal prosecution for any act of his until after
the State has the crime and has fixed a penalty therefor. (U.S.
vs. Parrone, 24 Phil. 29, 35)

Reason for the provision.

An act or omission cannot be punished by the State if at the
time it was committed there was no law prohibiting it, because a law
cannot be rationally obeyed unless it is first shown, and a man cannot
be expected to obey an order that has not been given.

No penalty prescribed by law prior to its commission.

A was charged with "fraud or infringement of literary rights or
because A allegedly reproduced and sold fraudulent copies
of another's literary work. At that time, we had no copyright law. Can
be punished for such act? No, because there was no law at that time
defining and penalizing the act. (U.S. vs. Yam Tung Way, 21 Phil.
67)

Subsidiary penalty for a crime cannot be imposed, if it was

"not prescribed by law prior to its commission."
U.S. vs. Macasaet
(11 Phil. 447)

Facts: Macasaet was charged with and convicted of a violation of

the Internal Revenue Law (Act No. punishable by a fine. That

587
Art. 22 RETROACTIVE EFFECT OF PENAL LAWS

law did not provide imprisonment for failure to pay the fine by reason
of insolvency. While the case was pending trial, Act No. 1732 took ef-
fect. This new law provides subsidiary imprisonment for failure to pay
the fine under the old law (Act No. 1189). The court in imposing the
payment of the fine also imposed subsidiary imprisonment in view of
the provisions of the new law.
Held: Inasmuch as Act No. 1732 did not go into force until after
the commission of the crime by Macasaet, subsidiary imprisonment
cannot be lawfully imposed.

22 . Retroactive effect penal laws. — Pen a l law s shall hav e

a r e t r o a c t i v e effect in so far as the y favor th e p e r s o n gu ilt y of
a felony, wh o i s no t a h ab i t u a l cri mi n al , as thi s ter m i s d efin ed
in Rul e 5 of Article 62 of thi s Code, a l t h o u g h at th e tim e of th e
p u b l i c a t i o n o f suc h law s a fina l s e n t e n c e bee n pronounce
d an d th e co n v i c t i s s e r v i n g th e same .

Art. 22 is not applicable to the provisions of the Revised

Penal Code.
This provision clearly has no direct application to the provisions
of the Revised Penal Code. Its application to the Revised Penal Code
can only be invoked where some former or subsequent law is under
consideration. It must necessarily relate to penal laws existing prior
to the Revised Penal Code, in which the penalty was less severe than
those of the Code; or (2) to laws enacted subsequent to the Revised
Penal Code, in which the penalty is more favorable to the accused.
It is not believed, therefore, that the Legislature in enacting
Art. 10 (first clause) of the Revised Penal Code intended to provide
that Art. 22 should not be applicable to special laws.
If by an amendment to the Revised Penal Code or by a later
special law, the punishment for an act is made less severe than by
the provisions of the Code, then the accused person might invoke the
provisions of Art. 22. (See U.S. vs. Parrone, 24 Phil. 29, 35-36)

General rule is to give criminal laws prospective effect.

Before Art. 365 of the Revised Penal Code was amended, slight
physical injuries (a light felony) through reckless imprudence was not

588
 RETROACTIVE EFFECT OF PENAL LAWS Art. 22

punishable. On September the offended party suffered slight

physical injuries through the reckless imprudence of the accused. On
June 21 , 1957, before the case against the accused could be finally
decided, Republic Act No. 1790 was approved, amending Art. 365 and
making slight physical injuries through reckless imprudence punish-
able. It was held that since the act involved occurred long the
enactment of the amendatory legislation, it cannot be applied as it
is axiomatic that a criminal law may not be given retroactive effect.
(People vs. Changco, 54 O.G. 6749)

Exception — to give them retroactive effect when favorable

to the accused.
Before Republic Act No. 587, amending the Motor Vehicle Law
took effect (on January Section 68 of the Motor Vehicle Law
specifically provides that conviction thereunder shall not bar prosecu-
tion for other offenses under another law.

The accused, driver of a bus, was convicted of the crime of

homicide with serious physical injuries through reckless imprudence
for the death of one passenger and for the injuries suffered by two
other passengers of the bus. He was also convicted of the crime of
damage to property through reckless imprudence for the destruction
caused to the other bus. The act of the accused which gave rise to
the two crimes occurred before Republic Act No. 587 took effect. The
information for homicide with serious physical injuries alleged facts
sufficient to constitute such crime as that defined and penalized by
Section 67(d) of the Motor Vehicle Law, whereas the information for
damage to property is under Art. 365 of the Code.
As amended, the Motor Vehicle Law provides in its Section 67(d)
that "if, as the result of negligence or reckless or unreasonably fast
driving any accident occurs resulting in death or serious bodily injury
to any person, the motor vehicle driver at fault shall, upon conviction,
be punished under the provisions of the Penal Code."
It was held that although Republic Act No. 587 took effect af-
ter the incident in question, the same may be applied, it being more
favorable to the accused. (Lapuz vs. Court of Appeals, 94 Phil. 710,
713)
Republic Act No. 587 is favorable to the accused, because instead
of being liable for two separate crimes under the Motor Vehicle Law

589
 Art. 22 RETROACTIVE EFFECT OF PENAL LAWS

and under the Code, respectively, he is liable for one complex crime
under the Code only.

The exception applies to a law dealing with prescription of crime.

Art. 22 applies to a law dealing with prescription of an offense
which is intimately connected with that of the penalty, for the length of
time for prescription depends upon the gravity of the offense. (People
vs. Moran, 44 Phil. 387, 400)
When the new law reduces the period of prescription of
criminal actions or establ ish es easier requirements to give the
prescription effect, the reduction conceded by the new law implies
an acknowledgment on the part of the sovereign power that the more
severe requirements of the former law were unjust in regard to the
essence of the criminal action. (People vs. 44 Phil. 437, 442)

Reason for the exception.

The sovereign, in enactin g a su b sequ en t penal law more
favorable to the accused, has recognized that the greater severity
of the former law is unjust. The sovereign would be inconsistent if
it would still enforce its right under conditions of the former law,
which has already been regarded by conscientious public opinion as
juridically burdensome. (People vs. Moran, 44 Phil. 387, 414)

The new law may provide otherwise.

Thus, Rep. Act No. 4661 , reducing the period of prescription
of criminal action for libel from two years to one year, specifically
provides that "The provisions of this amendatory Act shall not apply
to cases of libel already filed in court at the time of approval of this
amendatory Act."

Revised Penal Code was not given retroactive effect.

People vs. Carballo
(62 Phil. 651)
Facts: On January the accused who had been convicted of
bigamy accepted a conditional pardon extended to him by the Governor
General. During that year, he committed violations of the Revised
Ordinances of Manila and was convicted thereof by final judgment on
March 18, 1931.

590
 RETROACTIVE EFFECT OF PENAL LAWS Art. 22

Prior to January 1, 1932, when the Revised Penal Code took ef-
fect, there was no law punishing the violation of a conditional pardon
as a crime.
Held: The provisions of the Revised Penal Code cannot be given
retroactive effect.

Giving a law retroactive effect, if unfavorable to accused,

will violate the constitutional inhibition as to ex post facto
laws.
An act which when committed was not a crime, cannot be made
so by statute without violating the constitutional inhibition as to ex
post facto laws. (People vs. Carballo, 62 Phil. 651 , 653)

An ex post facto law is one which: makes criminal an act done

before the passage of the law and which was innocent when done, and
punishes such an act; (2) aggravates a crime, or makes it greater than
it was, when committed; (3) changes the punishment and inflicts a
greater punishment than the law annexed to the crime when commit-
ted; (4) alters the legal rules of evidence, and authorizes conviction
upon less or different testimony than the law required at the time of
the commission of the offense; (5) assuming to regulate civil rights
and remedies only, in effect imposes penalty or deprivation of a right
for something which when done was lawful; and (6) deprives a person
accused of a crime of some lawful protection to which he has become
entitled, such as the protection of a former conviction or acquittal,
or a proclamation of amnesty. (Mejia vs. Pamaran, Nos.
April 160 SCRA 457, 472)

"Although at the time of the publication of such laws a

final sentence has been pronounced and the convict is
serving the same."
The provision of Art. 22 that penal laws shall have a retroactive
effect insofar as they favor the person guilty of a felony is applicable
even if the accused is already serving sentence. (Escalante vs. Santos,
56 Phil. 483 , 485)
Illustration:
Under the old Penal Code, plea of guilty was not a
mitigating circumstance. A person accused of estafa under the
old Penal Code pleaded guilty upon arraignment. He began to
591
Art. 22 RETROACTIVE EFFECT OF PENAL LAWS

serve sentence. While serving sentence, the Revised Penal Code

took effect. In the petition for habeas corpus, the Supreme Court
took into account the mitigating circumstance of plea of guilty
provided for in Art. 13, par. 7, of the Revised Penal Code, as
such mitigating circumstance had the effect of decreasing the
penalty already imposed. (Rodriguez vs. Director of Prisons, 57
Phil. 133, 135-136)

The favorable retroactive effect of a new law may find the de-
fendant in one of these three situations:
The crime has been committed and prosecution begins;
2. Sentence has been passed but service has not begun;
3. The sentence is being carried out. (Escalante vs. Santos,
supra)
In any case, the favorable new statute benefits him and should
apply to him.

"Who is not a habitual criminal?"

But when the culprit is a habitual delinquent, he is not entitled
to the benefit of the provisions of the new favorable statute. (People
vs. Alcaraz, 56 Phil. 520, 522)
A person shall be deemed to be a habitual delinquent if within
a period of ten years from the date of his release or last conviction of
the crimes of serious or less serious physical injuries, robbery, theft,
estafa, or falsification, he is found guilty of any said crimes a third
time or oftener. (last paragraph of Rule 5, Art. 62)

Not applicable to civil liability.

The principle that criminal statutes are retroactive so far as they
favor the culprit does not apply to the latter's civil liability, because
the rights of offended persons or innocent third parties are not within
the gift of arbitrary disposal of the State.
Suppose the indemnity in favor of the heirs of the person unlaw-
fully killed is reduced t by a new law, may the accused who
committed the crime before the new law is enacted demand that he
be allowed to pay only instead of as provided in the

592
 RETROACTIVE EFFECT OF PENAL LAWS Art. 22

Civil Code? Since this question refers to civil liability, the new law
even if favorable to him cannot be given retroactive effect.

But a new law increasing the civil liability cannot be given

retroactive effect.
Act No. 284, which increased the minimum indemnity for
the death of a person by reason of the commission of a crime from
P1,000 to was not given retroactive effect. (People vs. Pana-
C.A., 40 O.G. 207)

Both laws must refer to the same deed or omission, having

the same end.
In order that a subsequent statute may have a retroactive effect,
it must in the first place refer to the same deed or omission penalized
by the former statute and must seek the same end and purpose. (U.S.
vs. Macasaet, 11 Phil. 447, 449)

When new law is expressly made inapplicable.

The rule that criminal laws have retroactive effect when favora-
ble to the accused has no application where the new law is expressly
made inapplicable to pending actions or existing causes of action.
(Tavera vs. Valdez, 1 Phil. 468, 470-471)

Rule applied to special laws.

The provisions of this article are applicable even to special laws
which provide more favorable conditions to the accused. (U.S. vs.
36 Phil. 5)

Republic Act No. 9346 given retroactive effect.

Republic Act No. 9346 which was enacted on June 24, 2006
prohibited the imposition of the death penalty.
Section 2 of Rep. Act No. 9346 which provides that the penalty
of reclusion perpetua shall be imposed in lieu of the death penalty
likewise affects death sentences, whether or not already affirmed by
the Supreme Court. As Justice Callejo, Sr. points out in his ponencia
People v. Article 22 of the Revised Penal Code mandates
that laws shall have a retroactive effect insofar as they favor

593
Art. 22 RETROACTIVE EFFECT OF PENAL LAWS

the persons guilty of a felony, who is not a habitual criminal

although at the time of the publication of such laws, a final sentence
has been pronounced and the convict is serving the same." Persons
previously convicted by final judgment to death should enjoy the
beneficial retroactive effect of Rep. Act No. 9346 which is reduction of
the death penalty to either life imprisonment or reclusion perpetua, as
the case may be. The conclusion is confirmed by Section 3 of the law,
which makes reference to "persons whose sentences will be reduced to
reclusion perpetua, by reason of this Act." (Concurring Opinion
in People vs. Tubongbanua, G.R. No. 171271, Aug. 31 , 2006)

Art. 22 and Art. 366 compared.

Art. 366. Application laws enacted prior to this Code. Without
prejudice to the provisions contained in Art. 22 of this Code, felonies
and misdemeanors committed prior to the date of effectiveness of this
Code shall be punished in accordance with the Code or Acts in force
at the time of their commission.
Art. 22. Retroactive effect of penal laws. Penal laws shall have
retroactive effect insofar as they favor the person guilty of a felony,
who is not a habitual criminal, although at the time of the pub-
lication of such laws a final sentence has been pronounced and the
convict is serving the same.
These two articles mean that while felonies and misdemeanors
committed prior to the date of effectiveness of the Revised Penal
Code shall be punished in accordance with the Code or Acts in force
at the time of their commission, the same should not be the case if
such Code or Acts are unfavorable to the guilty party, for the general
principle on the retroactivity of favorable penal laws, recognized in
Art. 22, should then apply.

Lagrimas case and case compared.

Lagrimas vs. Director of Prisons
(57 Phil. 249)
Facts: This is a petition for habeas corpus. The petitioner slapped
and use offensive language to a teacher in the public school. The ac-
cused, now petitioner, was found guilty of assault upon a public official
and sentenced to the penalty of Art. 251 of the old Penal Code. Article
149 of the Revised Penal Code does not prescribe a penalty for the crime
penalized by Art. 251 of the old Code.

594
 RETROACTIVE EFFECT OF PENAL LAWS Art. 22

Art. of the old Penal Code is concordant to Art. 149 of the

Revised Penal Code with the difference that the latter contains no penal
sanction for the offense laying hands upon agents of the authorities
or upon public officials.
Question: Whether the petitioner, who was sentenced under the
provision of the former Code, may be set at liberty on the ground that
the Revised Penal Code provides no penalty for the crime committed
under the former Code.
Held: The intention of the Legislature in embodying this provision
of Art. 366 in the Revised Penal Code was to insure that the elimination
from this Code of certain crimes penalized by former acts before the
enforcement of this Code should not have the effect of guilty
persons who were serving their sentences for the commission of such
crimes. Petition denied.
Dissenting: If the new law totally eliminates the penalty, it is
decidedly favorable to the accused and the new law should be applied
in accordance with Art. 22.

People vs.
(61 Phil. 226)

Facts: The accused was convicted in the Justice of the Peace

Court for the violation of Sec. 2, Municipal Ordinance No. 5, Series
of 1932, of Magsingal, Ilocos Sur. While his appeal was pending, the
Municipal Council repealed Sec. 2 in question, with the result that the
act complained of was no longer a crime. The accused moved for the
dismissal of the action.
Held: A person cannot be prosecuted, convicted, and punished
for acts no longer criminal. The case was dismissed.

It would seem that in the Lagrimas case, the Legislature re-

enacted in the Revised Penal Code the provision of Art. of the old
Penal Code, with the difference that Art. 149 of the Revised Penal
Code does not punish an assault upon a public school teacher. If this
is the case, Art. 149 of the Revised Penal Code did not absolutely
repeal Art. 251 of the old Code. On the other hand, in the Tamayo
case, the repeal (completely eliminating Section 2 of the Ordinance
under which the accused was being prosecuted) was absolute. When
the repeal is by reenactment, the court has jurisdiction to try and
punish an accused person under the old law. (U.S. vs. Cuna, 12 Phil.
241, 247)

595
 Art. 22 RETROACTIVE EFFECT OF PENAL LAWS

Criminal liability under former law is obliterated when the

repeal is absolute.
The repeal in the case of People vs. Tamayo is absolute, and
not a reenactment or repeal by implication. Nor is there any saving
clause.

Criminal liability under the repealed law subsists:

When the provisions of the former law are or
(2) When the repeal is by implication; or
(3) When there is saving clause. (U.S. vs. Cuna, 12 Phil. 241,
supra; Wing vs. U.S., 218 U.S. 272)
The right to punish offenses committed under an old penal law
is not extinguished if the offenses are still punished in the repealing
penal law. (U.S. vs. Cuna, supra; People vs. Rosenthal, 68 Phil.
328)

The repeal of penal law which impliedly repealed an old penal law
revives the old law.
When a penal law, which impliedly repealed an old law, is itself
repealed, the repeal of the repealing law revives the prior penal law,
unless the language of the repealing statute provides otherwise.

Illustration:

Act 1697 impliedly repealed the provisions of the old Penal

Code on perjury, but later, Act 1697 was itself repealed by the
old Administrative Code. The penalty provided in the old Penal
Code, which was lighter than the penalty provided in Art. 1697,
was imposed on the accused. (U.S. vs. Soliman, supra)

No retroactive effect of penal laws as regards jurisdiction of

court.

People vs. Pegarum

(58 Phil. 715)

Facts: A committed estafa involving an amount of P94.35. Under

the law then in force, the penalty for that crime was arresto mayor

596
 PARDON THE OFFENDED PARTY Art. 23

in its medium period to correccional minimum. This penalty

cannot be imposed by the justice of the peace court. The Court of First
Instance has jurisdiction over the case. At the time the complaint was
filed, the Revised Penal Code took effect. The penalty now for that crime
is arresto mayor in its medium and maximum periods, a penalty which
the justice of the peace court can impose.
Held: The justice of the peace court has jurisdiction.

The jurisdiction of a court to try a criminal action is to be

determined by the law in force at the time of instituting the action,
not at the time of the commission of the crime. (People vs. Romualdo,
90 Phil. 739, 744)

Jurisdiction of courts in criminal cases is determined by the allega-

tions of the complaint or information.
The jurisdiction of the courts in criminal cases is determined
by the allegations of the complaint or information, and not by the
findings the court may make after trial. (People vs. Mission, 87 Phil.
641 , 642)

What penalty may be imposed for the commission of a

felony?
Only that penalty prescribed by law prior to the commission of
the felony may be imposed. (Art.

Felonies are punishable under the laws in force at the time of

their commission. (Art. 366)
But the penalty prescribed by a law enacted after the commis-
sion of the felony may be imposed, if it is favorable to the offender.
(Art. 22)

Art. 23 . Effect of pardon by the offended party. — A p a r d o n by

th e of fe n d ed party doe s no t e x t i n g u i s h c ri mi n a l acti o n excep t
as p r o v i d e d in Arti cl e 344 of thi s Code; bu t civil li ab il i ty wit h
regar d t o th e i n t e r e s t o f th e i n ju re d part y i s e x t i n g u i s h e d b
y hi s e x p r e s s w a i v e r .

597
 Art. 23 PARDON THE OFFENDED PARTY

"A pardon by the offended party does not extinguish

criminal action."
Even if the injured party already pardoned the offender, the
fiscal can still prosecute the offender. Such pardon by the offended
party is not even a ground for the dismissal of the complaint or in-
formation.
Reason: A crime committed is an offense against the State. In
criminal cases, the intervention of the aggrieved parties is limited
to being witnesses for the prosecution. (People vs. Despavellador, 53
O.G. 21797) Only the Chief Executive can pardon the offenders. (Art.
36)

Compromise does not extinguish criminal liability.

It is well-settled that criminal liability for estafa is not affected
by compromise, for it is a public offense which must be prosecuted
and punished by the Government on its own motion even though
complete reparation should have been made of the damage suffered
by the offended party. (People vs. 59 O.G. 1407)

There may be a compromise upon the civil liability arising

from an offense; but such compromise shall not extinguish the pub-
lic action for the imposition of the legal penalty. (Art. 2034, Civil
Code)
A contract stipulating for the renunciation of the right to pros-
ecute an offense or waiving the criminal liability is void. The consid-
eration or subject-matter is illegal. (See Arts. 1306, 1352 and 1409
of the new Civil Code.)

"Except as provided in Art. 344 of this Code."

The offended party in the crimes of adultery and concubinage
cannot institute criminal prosecution, if he shall have consented or
pardoned the offenders. (Art. 344 , par. 2)
The pardon here may be implied, as continued inaction of the
offended party after learning of the offense.
The second paragraph of Art. 344 requires also that both offend-
ers must be pardoned by the offended party. (People vs. Infante, 57
Phil. 138, 139)

598
 PARDON THE OFFENDED PARTY Art. 23

In the crimes of seduction, abduction, rape or acts of lascivious-

ness, there shall be no criminal prosecution if the offender has been
expressly pardoned by the offended party or her parents, grandparents,
or guardian, as the case may be. The pardon here must be express.

Pardon under Art. 344 must be made before institution of

criminal prosecution.
But the pardon afforded the offenders must come before the
institution of the criminal prosecution. (People vs. Infante, 57 Phil.
138 — adultery; People vs. Miranda, 57 Phil. 274 — seduction)
Thus, when the complaint for adultery, concubinage or seduction,
rape, acts of lasciviousness, or abduction has already been filed in
court, a motion to dismiss based solely on the pardon by the offended
party, given after the filing of the complaint, will be denied by the
court.
The only act that, according to Art. 344 , extinguishes the penal
action after the institution of criminal action, is the marriage between
the offender and the offended party.

Pardon under Art. 344 is only a bar to criminal prosecution.

Even under Art. 344 , the pardon by the offended party does not
extinguish criminal liability; it is only a bar to criminal prosecution.
Art. 89, providing for total extinction of criminal liability, does not
mention pardon by the offended party as one of the causes of totally
extinguishing criminal liability.

"But civil liability with regard to the interest of the injured

party is extinguished by his express waiver."
As a general rule, an offense causes two classes of injuries: (1)
social injury, produced by the disturbance and alarm which are the
outcome of the offense; and (2) personal injury, caused to the victim of
the crime who suffered damage either to his person, to his property,
to his honor or to her chastity.
The social injury is sought to be repaired through the imposi-
tion of the corresponding penalty. The State has an interest in this
class of injury. The offended party cannot pardon the offender so as
to relieve him of the penalty.

599
Art. 24 MEASURES OF PREVENTION NOT PENALTIES

But since personal injury is repaired through indemnity, which

is civil in nature, the offended party may waive it and the State has
no reason to insist in its payment.
The waiver, however, must be express.

Art. 24 . Measures of prevention or safety which are not considered

penalties. — f o l l o w i n g shall no t be c o n s i d e r e d as pen al -
ties.
1. . Th e arrest an d t e m p o r a r y d e t e n t i o n of a c c u s e d
per- sons, a s wel l a s thei r d e t e n t i o n b y r e a s o n o f i n s a n i t y o r
i mbe- cility, or i l ln es s r e q u i r i n g thei r c o n f i n e m e n t in a
h o sp i ta l .
2 . Th e c o m m i t m e n t o f a m i n o r t o an y o f th e i n s ti tu
- ti on s m e n t i o n e d i n Arti cl e an d for th e p u r p o s e s sp e ci fi e
d therein .
3 . S u s p e n s i o n fro m th e e m p l o y m e n t o r p u b l i c office
d u r i n g th e trial o r i n o rd e r t o i n s t i t u t e p r o c e e d i n g s .
4 . F i n e s an d o t h e r c o r r e c t i v e m e a s u r e s w h i c h , i n th e
e x e r c i s e o f th ei r a d m i n i s t r a t i v e o r d i s c i p l i n a r y p o w e r s , su p e
- rior officials ma y i m p o s e u p o n t h e i r s u b o r d i n a t e s .
5 . D e p r i v a t i o n o f r i g h t s an d th e r e p a r a t i o n s w h i c h th e
civi l la w ma y e s t a b l i s h i n p en a l form.

"As well as their detention by reason of insanity or imbecility."

Paragraph No. 1 of Article 24 contains the above phrase. This
paragraph does not refer to the confinement of an insane or imbecile
who has not been arrested for a crime. It refers to "accused persons"
who are detained "by reason of insanity or imbecility." The word
"their" in the second clause of paragraph No. refers to "accused
persons" in the first clause.

Why are they not considered penalties?

They are not penalties, because they are not imposed as a result
of judicial proceedings. Those mentioned in paragraphs Nos. and
4 are merely preventive measures before conviction of offenders.

600
Art. P.D. No. 603 (after Art. 80 in this Book).

601
 MEASURES OF PREVENTION NOT PENALTIES Art. 24

The commitment of a minor mentioned in paragraph 2 is not a

penalty, because it is not imposed by the court in a judgment of con-
viction. The imposition of the sentence in such case is suspended.

The fines mentioned in this article should not be imposed

by the court.
The "fines" mentioned in paragraph 4 are not imposed by the
court, because when imposed by the court, they constitute a penalty.
(See Art. 25)
The Commissioner of Civil Service may, on certain grounds, fine
an employee in an amount not exceeding six months' salary.

Example of deprivation of rights established in penal form.

The deprivation of rights established in penal form by the civil
laws is illustrated in the case of parents who are deprived of their
parental authority if found guilty of the crime of corruption of their
minor children, in accordance with Art. 332 of the Civil Code.

602
 Chapter Two
CLASSIFICATION OF PENALTIES

Art. 25 . Penalties which may be imposed. — Th e p e n a l t i e s

w h i c h ma y b e i m p o s e d , a c c o r d i n g t o thi s Cod e , an d th ei r dif-
feren t c l a s s e s , ar e t h o s e i n c l u d e d i n th e f o l l o w i n g :

SCALE
PRINCIPA L PENALTIE S

Capital punishment:
Deat h

Afflictive penalties:
Reclusio n perpetu a
Reclusio n tempora l
Perpetua l o r temporar y absolut e disqualificatio n
P e r p e t u a l o r t e m p o r a r y sp e c i a l d i s q u a l i f i c a t i o n
mayor

Correctional penalties:
Prisio n correcciona l
Arrest o mayo r
Suspensio n

Light penalties:
Arrest o
Publi c censur e

Penalties common to the three preceding classes:

Fin e , an d
B on d t o k e e p th e p e a c e .

602
 CLASSIFICATION OF PENALTIES Art. 25

ACCESSOR Y PENALTIE S

Perpetua l o r temporar y absolut e disqualificatio n

Perpetua l o r temporar y specia l disqualificatio n
S u s p e n s i o n fro m p u b l i c office, th e ri gh t t o vot e an d b e v o t e d
for, th e p r o f e s s i o n o r c a l l i n g
Civil i n t e r d i c t i o n
Indemnificatio n
F o r f e i t u r e o r c o n f i s c a t i o n o f i n s t r u m e n t s an d p r o c e e d s o f th e
offen s e
P a y m e n t o f cost .

"The penalties which may be imposed, according to this Code,

are those included" in Art. 25 only.
A sentence of "five years in Bilibid" is defective, because it does
not specify the exact penalty prescribed in the Revised Penal Code.
(U.S. vs. Avillar, 28 Phil. 131, 134-135)
The penalty of hard labor in addition to imprisonment cannot
be imposed, because it is not authorized by the Revised Penal Code.
(U.S. vs. Mendoza, 14 Phil. 198, 203; People vs. 88 Phil. 35,
43-44)
The penalty of life imprisonment or perpetua imposed
by the trial court is an erroneous designation. The correct term is
reclusion perpetua. The penalty of cadena perpetua was abolished by
the Revised Penal Code. (People vs. Abletes, No. L-33304, July 31,
1974, 58 SCRA 241 , 248)
"Life imprisonment" should be denominated reclusion perpetua
since that technical term is the penalty that carries with it the impo-
sition of the accessory penalties. (People vs. De la Cruz, No. L-45485,
Sept. 19, 1978, 85 SCRA 285, 292)
It is error to impose cadena perpetua. That penalty, which was
imposed by the Spanish Penal Code of 1870, was repealed by the
Revised Penal Code. That barbarous, cruel and unusual punishment
belongs to a bygone era and is no longer imposed in this enlightened
age. (People vs. Lugtu, No. L-52237, Sept. 30, 1981, 108 SCRA 84,
91, Concurring Opinion of Justice Aquino)

603
Art. 25 CLASSIFICATION OF PENALTIES

The Revised Penal Code does not prescribe the penalty of life
imprisonment for any of the felonies therein defined, that penalty
being invariably imposed for serious offenses penalized not by the
Revised Penal Code but by special law. Reclusion perpetua entails
imprisonment for at least thirty (30) years after which the convict
becomes eligible for parole. It also carries with it accessory penalties,
namely: perpetual special disqualification, etc. It is not the same as
life imprisonment which, for one thing, does not appear to have any
definite extent or duration. (People vs. Penillos, 205 SCRA 546, citing
People vs. Baguio, 196 SCRA 459)

Note: Under R.A. No. 7659, the duration of reclusion perpetua

is now from 20 years and 1 day to 40 years.

Republic Act No. 9346 prohibited the imposition of the death

penalty.
Republic Act No. 9346 which was signed into law on June 24,
2006 prohibited the imposition of the death penalty, and provided for
the imposition of the penalty of reclusion perpetua in lieu of death,
when the law violated makes use of the nomenclature of the penalties
of the Revised Penal Code. (Secs. l and 2, Rep. Act No. 9346)

Art. 25 classifies penalties into principal and accessory.

This article classifies penalties into:
Principal penalties — those expressly imposed by the court
in the judgment of conviction.
2. Accessory penalties — those that are deemed included in
the imposition of the principal penalties.
The principal penalties may be classified:
According to their divisibility.
1. Divisible.
2. Indivisible.
Indivisible penalties are those which have no fixed duration.
The indivisible penalties are:
1. Death.

604
 CLASSIFICATION OF PENALTIES Art. 25

2. Reclusion perpetua.
3. Perpetual absolute or special disqualification.
4. Public censure.

Divisible penalties are those that have fixed duration and are
divisible into three periods.

Classification of penalties according to subject-matter:

Corporal

2. Deprivation of freedom prision, arresto).

3. Restriction of freedom (destierro).

4. Deprivation of rights (disqualification and

5. Pecuniary (fine).

Classification of penalties according to their gravity:

1. Capital,
2. Afflictive,
3. Correctional,
4. Light.
This classification corresponds to the classification of the felonies
in Art. 9, into grave, less grave and light.

Public censure is a penalty.

Censure, being a penalty, is not proper in acquittal. (People vs.
Abellera, 69 Phil. 623 , 625)
In a criminal case, there is only one issue, viz.: whether the ac-
cused is guilty or not guilty. If he is found guilty, the court acquires
jurisdiction to impose a penalty; if he is found not guilty, no court has
the power to mete out punishment; a finding of guilt must precede
the punishment. (Gomez vs. Concepcion, 47 Phil. 717, 723)

Court acquitting the accused may criticize his acts or conduct.

But a competent court, while acquitting an may permit
itself nevertheless to criticize or reprehend his acts and conduct in

605
 Art. 26 FINE, WHEN AFFLICTIVE, CORRECTIONAL
OR LIGHT

connection with the out which the accusation arose. The

court may, with unquestionable propriety, express its disapproval or
reprehension of those acts to avoid the impression that by acquitting
the accused it approves or admires his conduct.
In the case of People vs. Abellera, the accused was reprimanded
by the court in his capacity as clerk of court for various acts not mate-
rial to the issue, such as his acceptance of free meals and transporta-
tion from litigants, while the charge was infidelity in the custody of
public documents, of which he was acquitted. (People vs. Meneses,
74 Phil. 119, 125, 127)

Penalties that are either principal or accessory.

Perpetual or temporary disqualification, perpetual or
temporary special disqualification, and suspension may be principal
or accessory penalties, because they are formed in the two general
classes.
Art. 236, punishing the crime of anticipation of duties of a public
office, provides for suspension as a principal penalty.
Arts. 226, 227 and 228, punishing infidelity of public officers in
the custody of documents, provide for temporary special disqualifica-
tion as a principal penalty.

Art. 26 . Fine — When afflictive, correctional, or light penalty.

- A fine, w h e t h e r i m p o s e d as a s i n g l e or as an a l t e r n a t i v e
p e n a l t y , shal l b e c o n s i d e r e d a n affl icti ve p e n a l t y , i f i t e x c e e d
s 6,000 p e s o s ; a c o r r e c t i o n a l p e n a l t y , i f i t doe s no t e x c e e d
6,000 p e s o s bu t i s no t les s t h a n 200 p e s o s ; an d a l i gh t
p e n a l t y , i f i t b e les s t h a n 20 0 p e s o s .

"Whether imposed as a single or as an alternative penalty."

Fines are imposed in many articles of this Code as an alternative
penalty. Example: In Art. 144, punishing disturbance of proceedings,
the penalty is arresto mayor or a fine ranging from P20 0 to

Example of fine as a single penalty is a fine of to

606
 FINE, WHEN AFFLICTIVE, CORRECTIONAL Art. 26
OR LIGHT

Penalties cannot be imposed in the alternative.

The Court of First Instance of Quezon found Alejandro Mercade-
jas guilty of a violation of Republic Act No. 145 and sentenced him
"to pay a fine of or to suffer an imprisonment of two years,
and to pay the

Held: The law does not permit any court to impose a sentence
in the alternative, its duty being to indicate the penalty imposed
definitely and positively. (People vs. Mercadejas, C.A., 54 O.G. 5707;
People vs. Tabije, 59 O.G. 1922)

Art. 26 merely classifies fine and has nothing to do with the

definition of light felony.
A felony punishable by arresto or a fine not exceeding
P200 is a light felony. (Art. 9, par. 3) When the penalty is correctional,
it is a less grave felony. (Art. 9, par. 2) It is a light penalty if the
amount of the fine imposed is less than P200 , and it is a correctional
penalty if it is not less than P20 0 and does not exceed (Art.
26) If the fine prescribed by the law for a felony is exactly P200 , is it
a light felony or a less grave felony? It is a light felony because Art.
9, par. 3, which defines light felony should prevail.

Fine is:
1. Afflictive - over

2. Correctional - P200.00 to

3. Light penalty — less than P200.00

Bond to keep the peace is by analogy:

1. Afflictive — over P6,000.00
2. Correctional - P200.00 to
3. Light penalty - less than P200.00 (Albert)

607
 Chapter Three
DURATION AND EFFECT OF PENALTIES

S e c t i o n One. — D u r a t i o n of P e n a l t i e s

Art. 27 . Reclusion perpetua. — Th e p e n a l t y of reclusion per-

petua shal l b e from t w e n t y y ea r s an d on e da y t o forty y e a r s
.
Reclusion temporal. — Th e p e n a l t y of reclusion temporal shall
b e from t w e l v e y ea r s an d on e da y t o t w e n t y y e a r s .
Prision mayor and temporary disqualification. — Th e d u r a t i o n
of th e p en a l t i e s prision mayor an d t e m p o r a r y d i sq u al i f i c a t i o n
shal l b e fro m si x y ea r s an d on e da y t o t w e l v e y e a r s , e x c e p t
w h e n th e p e n a l t y o f d i s q u a l i f i c a t i o n i s i m p o s e d a s a n a cc es -
sor y p e n a l t y , i n w h i c h case , it s d u r a t i o n shal l b e th a t o f th e
principa l penalty .
Prision correccional, suspension, and destierro. — Th e d u r a t i o n
of th e p e n a l t i e s of prision correccional, suspension, an d destierro
shall b e from si x m o n t h s an d on e da y t o si x ye ar s , e x c e p t w h e
n suspensio n i s impose d a s a n accessor y penalty , i n whic h
c as e , its d u r a t i o n shall b e tha t o f th e p r i n c i p a l p e n a l t y .
Arresto mayor. — Th e d u r a t i o n of th e p e n a l t y of arresto
mayor shal l b e fro m on e m o n t h an d on e da y t o si x m o n t h s .
Arresto — Th e d u r a t i o n of th e p e n a l t y of arresto
shal l b e fro m on e da y t o th i rt y d ay s .
Bond to keep the peace. — Th e b on d to k e e p th e p e a c e shal l
b e r e q u i r e d t o c ov e r su c h p e r i o d o f ti m e a s th e co u r t ma y
d e t e r m i n e . (As amended by No. 7659, approved on December
13, 1993)

Duration of each of different penalties.

Reclusion perpetua — 20 and 1 day to 40
2. Reclusion temporal — 12 yrs. and 1 day to 20 yrs.

608
 DURATION OF PENALTIES Art. 27

3. Prision mayor and temporary disqualification — 6 yrs. and

1 day to 12 except when disqualification is accessory
penalty, in which case its duration is that of the principal
penalty.
4. Prision correccional, suspension, and destierro — 6
and 1 day to 6 except when suspension is an accessory
penalty, in which case its duration is that of the principal
penalty.
5. Arresto mayor — 1 mo. and 1 day to 6 mos.
6. Arresto menor — 1 day to 30 days.

Bond to keep the peace — the period during which the bond
shall be effective is discretionary on the court.

Temporary and suspension, when imposed

as accessory penalties, have different durations — they
follow the duration of the principal penalty.
Thus, if the penalty imposed is arresto mayor, the duration of
the accessory penalty of suspension of the right to hold office and the
right of suffrage (Art. 44) shall be that of arresto mayor.
Note the clauses in paragraphs 3 and 4 which say "except
when the penalty (of disqualification or suspension) is imposed as
an accessory penalty, in which case its duration shall be that of the
principal penalty."

In what cases is destierro imposed?

In the following:
1. Serious physical injuries or death under exceptional
circumstances. (Art. 247)
2. In case of failure to give bond for good behavior. (Art.
284)
3. As a penalty for the concubine in concubinage. (Art.
334)
4. In cases where after reducing the penalty by one or more
degrees destierro is the proper penalty.

609
 Art. 28 COMPUTATION OF PENALTIES

Bond to keep the peace is not specifically provided as a penalty for any
felony and therefore cannot be imposed by the court.
Since according to Art. 21 no felony shall be punishable by any
penalty not prescribed by law prior to its commission, and bond to
keep the peace is not specifically provided for by the Code for any
felony, that penalty cannot be imposed by the court.
Bond for good behavior under Art. 284 of the Code, which is
required of a person making a grave or light threat, is not required
to be given in cases involving other crimes.

Art. 28 . Computation of penalties. — If th e o f f e n d e r shal l

be i n p ri s on , th e ter m o f th e d u r a t i o n o f th e t e m p o r a r y
p en al - tie s shal l b e c o m p u t e d fro m th e da y o n w h i c h th e
j u d g m e n t o f c o n v i c t i o n shal l hav e b e c o m e final.
I f th e o ff en d e r b e no t i n p r i s o n , th e ter m o f th e d u r a t i o
n o f th e p en a l t y c o n s i s t i n g o f d e p r i v a t i o n o f l ib ert y sh all b e
com - p u t e d fro m th e da y tha t th e o f f e n d e r i s p l a c e d a t th e
d i s p o s a l o f th e j u d i c i a l a u t h o r i t i e s for th e e n f o r c e m e n t o f th e
p e n a l t y . Th e d u r a t i o n o f th e o t h e r p e n a l t i e s shal l b e
c o m p u t e d onl y from th e da y o n w h i c h th e d e f e n d a n t
c o m m e n c e s t o s e r v e hi s s e n t e n c e .

Rules for the computation of penalties.

The Director of Prisons or the warden should compute the penal-
ties imposed upon the convicts, observing the following rules:
When the offender is in prison — the duration of temporary
penalties is from the day on which the judgment of convic-
tion becomes final.
When the offender is not in prison — the duration penalty
consisting in deprivation is from the day that the
offender is placed at the disposal judicial authorities for
the enforcement of the penalty.
The duration of other penalties — the duration is from
the day on which the offender commences to serve his sen-
tence.

610
 COMPUTATION OF PENALTIES Art. 28

If the accused, who was in custody, appealed, his service of

sentence should commence from the date of the promulgation of the
decision of the appellate court, not from the date the judgment of the
trial court was promulgated. vs. Court of Appeals, 97 Phil.
949 No. L-7469, May 6, 1955)
The service of a sentence of one in prison begins only on the
day the judgment of conviction becomes final. (Baking vs. Director
of Prisons, No. L-30603, July 28, 1969, 28 SCRA 851 , 856)
The accused could not be considered as committed or placed
in jail by virtue of the decision of the Court of Appeals, although he
was already in jail when that judgment was received. The fact of
his custody as a mere appellant pending appeal continued, and the
receipt of the decision of the Court of Appeals did not change the
detention of the accused into service of the judgment. The reading of
the sentence of the Court of Appeals to the accused was still a neces-
sary step previous to the actual commitment of the accused. (People
vs. Enriquez, 107 Phil. 201 , 207)

Examples of temporary penalties:

(1) Temporary absolute disqualification.
(2) Temporary special disqualification.
(3) Suspension.

Rules in cases of temporary penalties:

If offender is under detention, as when he is undergoing preven-
tive imprisonment, Rule No. 1 applies.
If not under detention, because the offender has been released
on bail, Rule No. 3 applies.

Examples of penalties consisting in deprivation of liberty:

(1) Imprisonment.
(2) Destierro.

Rules in cases of penalties consisting in deprivation of lib-

erty.
When the offender is not in prison, Rule No. 2 applies.

611
 Art. 29 PREVENTIVE IMPRISONMENT

If the offender is undergoing preventive imprisonment, the

computation of the penalty is not from the day that the offender is
placed at the disposal of the judicial authorities for the enforcement
of the penalty. Rule No. 3 applies, that is, the duration of the penalty
shall be computed from the day on which the defendant commences
to serve his sentence.
But the offender is entitled to a deduction of full time or four-
fifths (4/5) of the time of his detention.
R e a s o n for Rul e No .
The duration of temporary penalties shall be computed only from
the day the judgment of conviction becomes final, and not from the
day of his detention, because under Art. 24 the arrest and temporary
detention of the accused is not considered a penalty.

Art. 29 . Period of preventive imprisonment deducted from term

of imprisonment. — O f fe n d er s or a c c u s e d wh o h a v e u n d e r g o n e
p r e v e n t i v e i m p r i s o n m e n t shal l b e c r e d i t e d i n th e s e r v i c e o f
th ei r s e n t e n c e c o n s i s t i n g o f d e p r i v a t i o n o f l i b e rt y , w i t h th e
full tim e d u r i n g w h i c h th e y h a v e u n d e r g o n e p r e v e n t i v e im-
p r i s o n m e n t i f th e d e t e n t i o n p r i s o n e r a g r e e s v o l u n t a r i l y i n
w r i t i n g t o ab i d e b y th e sa m e d i s c i p l i n a r y r u l e s i m p o s e d u p o
n c o n v i c t e d p r i s o n e r s , e x c e p t i n th e f o l l o w i n g c a s e s :

1 . Wh e n th e y ar e r e c i d i v i s t s , o r h a v e b e e n c o n v i c t e d
p r e v i o u s l y t w i c e o r mo r e t i m e s o f an y c ri me ; an d
2 . Whe n u p o n b e i n g s u m m o n e d for th e e x e c u t i o n o f
th ei r s e n t e n c e th e y h av e fai l e d t o s u r r e n d e r v o l u n t a r i l y .
I f th e d e t e n t i o n p r i s o n e r d oe s no t a g r e e t o a b i d e b y th e
sam e d i s c i p l i n a r y r u l e s i m p o s e d u p o n c o n v i c t e d p r i s o n e r s
, h e shal l b e c r e d i t e d i n th e s e r v i c e o f hi s s e n t e n c e w i t h four-
f i f t h s o f th e ti m e d u r i n g w h i c h h e ha s u n d e r g o n e p r e v e n t i v e
imprisonment .

W h e n e v e r a n a c c u s e d ha s u n d e r g o n e p r e v e n t i v e i mp ri s -
o n m e n t for a p e r i o d eq u a l t o o r mo r e th a n th e p o s s i b l e maxi -
mu m i m p r i s o n m e n t o f th e o f f e n s e c h a r g e d t o w h i c h h e ma
y b e s e n t e n c e d an d hi s cas e i s no t ye t t e r m i n a t e d , h e sh al l b e
r e l e a s e d i m m e d i a t e l y w i t h o u t p r e j u d i c e t o th e c o n t i n u a t i o
n o f th e trial t h e r e o f o r th e p r o c e e d i n g o n a p p e a l , i f th e s am
e is
612
 PREVENTIVE IMPRISONMENT Art. 29

u n d e r r e v i e w . I n cas e th e m a x i m u m p e n a l t y t o w h i c h th e ac-
c u s e d ma y b e s e n t e n c e d i s destierro, h e shal l b e r e l e a s e d after
th i rt y (30) d ay s of p r e v e n t i v e i m p r i s o n m e n t . (As amended by
Rep. Act No. 6127, and Exec. Order No. 214)

When is there preventive imprisonment?

The accused undergoes preventive imprisonment when the of-
fense charged is nonbailable, or even if bailable, he cannot furnish
the required bail.

The time or of the time during which

offenders have undergone preventive imprisonment shall
be deducted
the penalty imposed.
Offenders who have undergone preventive imprisonment shall
be credited in the service of their sentence with the full time during
which they have undergone preventive imprisonment, if the detention
prisoner agrees voluntarily in writing to abide by the same discipli-
nary rules imposed upon convicted prisoners.
If the detention prisoner does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be cred-
ited in the service of his sentence with four-fifths of the time during
which he has undergone preventive imprisonment.
The appellant should be credited with the full time of his pre-
ventive imprisonment upon a showing that he agreed to abide by the
same disciplinary rules imposed upon convicted prisoners; otherwise,
he shall be credited with four fifths (4/5) of the time of such preven-
tive imprisonment. (People vs. No. L-32785, May 21 , 1973,
51 SCRA 31, 39; People vs. Abanes, No. Sept. 28, 1976, 73
SCRA People vs. Lingao, No. L-28506, Jan. 75 SCRA
130, 135-136; People vs. No. L-33490, Aug. 30, 1974, 58
SCRA 742, 749)

Under Art. 197 of the Child and Youth Welfare Code (Presiden-
tial Decree No. 603), the youthful offender shall be credited in the
service of his sentence with the full time he spent in actual confine-
ment and detention. It is not necessary that he agreed to abide by
the disciplinary rules imposed upon convicted prisoners.
613
Art. 29 PREVENTIVE IMPRISONMENT

Illustration of the application of this article.

A was accused of homicide punishable by reclusion temporal.
Because he could not put a bail A was detained pending
his trial which lasted for two years. If after trial, A was found guilty
and sentenced to an indeterminate penalty of from 6 years and 1 day
to 12 years and 1 day, the full period of A's preventive imprisonment
of 2 years shall be deducted from 12 years and 1 day, if he agreed
voluntarily in writing before or during the time of his temporary deten-
tion to abide by the same disciplinary rules imposed upon convicted
prisoners. But if A did not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, only of the 2 years during
which he has undergone preventive imprisonment will be deducted
from 12 years and 1 day.

Must preventive imprisonment be considered in perpetual

penalties?
This allowance should be made even in the case of perpetual
punishment. This article does not make any distinction between
temporal and perpetual penalties.
Thus, even if the accused is sentenced to life imprisonment, he
is entitled to the full time or 4/5 of the time of the preventive impris-
onment. (See U.S. vs. 38 Phil. 341 , 345)

The credit is given in the service of sentences "consisting of

deprivation of liberty."
Thus, if the offense for which the offender is undergoing preven-
tive imprisonment is punishable by imprisonment or a fine, and upon
conviction the court imposed on him only a fine, there is no credit to
be given.

Illustration:
A was accused of a violation of Art. 143 of the Revised
Penal Code. The penalty provided for in that Article is prision
correccional or a fine from to or both. During
the pendency of his trial, A was detained for ten days. Having
been found guilty, A was sentenced to pay a fine of P500 . Can
A successfully claim that his fine should be reduced because of
his preventive imprisonment for ten days?

614
 PREVENTIVE IMPRISONMENT Art. 29

No, because his sentence does not consist in deprivation of

liberty.

Destierro constitutes "deprivation of liberty."

Although destierro does not imprisonment (which
is a typical example of deprivation of liberty), it is noneth el ess a
deprivation of liberty. It follows that Article 29 is applicable when
the penalty is The accused should be credited with the
time during which he has undergone preventive imprisonment.
(People vs. Bastasa, No. L - 32792 , Feb. 2 , 1979 , 88 SCRA
184,
193)

Convict to be released immediately if the penalty imposed

after trial is less than the time or of the time
of the preventive imprisonment.
Thus , if A ha s bee n d e ta i n e d for 5 mon th s and 10 days
pending his trial for less serious physical injuries and after trial he
is sentenced to 4 months of arresto mayor, he should be released im-
mediately. (See People vs. Quiosay, 103 Phil.

The accused need not serve the penalty destierro, for having
satisfied the conditions laid down in Article 29 of the Revised
Penal Code, he should be entitled to credit for the preventive
imprisonment which he has undergone since August, 1970. (People
vs. Magonawal, No. L-35783 , March 63 SCRA 106,
113)

Accused shall be released immediately whenever he has

undergone preventive imprisonment for a period equal to
or more than the possible maximum imprisonment for the
offense charged.
Illustration:
A is accused of the crime of less serious physical injuries
punishable by imprisonment from 1 month and 1 day to 6
months. He has been under detention in jail for 6 months,
pending his trial. In that case, A should be released immediately,
but the trial of his case will continue.

615
Art. 29 PREVENTIVE IMPRISONMENT

If the maximum penalty to which the accused may be sen-

tenced is destierro.
Illustration:
A is accused of a crime punishable by a penalty from
arresto menor to destierro (6 months and 1 day to 6 years). A
has been detained for 30 days since his arrest. In that case, A
should be released immediately after 30 days from his arrest
and detention, even if the duration of destierro, the maximum
penalty to which he may be sentenced, is from 6 months and 1
day to 6 years. The reason for this is that in destierro, the accused
sentenced to that penalty does not serve it in prison. He is free,
only that he cannot enter the prohibited area specified in the
sentence.

Offenders not entitled to the time or of the

time of preventive imprisonment.
The following offenders are not entitled to be credited with the
full time or of the time of preventive imprisonment:
1. Recidivists or those convicted previously twice or more
times of any crime.
2. Those who, upon being summoned for the execution of their
sentence, failed to surrender voluntarily.
Before Art. 29 was amended by Rep. Act No. 6127, those who
were convicted of robbery, theft, estafa, malversation of public funds,
falsification, vagrancy or prostitution were not credited with any part of
the time during which they underwent preventive imprisonment. Those
offenses are enumerated in paragraph No. 3 of the original Art. 29.
In view of the elimination in Rep. Act No. 6127 of paragraph
No. 3 of the original Art. 29, those convicted of robbery, theft, estafa,
malversation, falsification, vagrancy or prostitution are now to be
credited in the service of their sentence with the full time or 4/5 of the
time during which they have undergone preventive imprisonment.

Habitual delinquent is included in paragraph No.

A habitual delinquent is not entitled to the full time or 4/5 of the
time of preventive imprisonment, because a habitual delinquent is
necessarily a recidivist or that at least he has been "convicted

616
 EFFECTS OF PENALTIES Art. 30

twice or more times of any crime." (See People vs. Gona, G.R.
No. 47177, Nov. 4, 1940)

"They have failed to surrender voluntarily."

Note that paragraph No. 2 does not refer to failure to surrender
voluntarily after the commission of the crime. It says, "when upon
being summoned for the execution of their sentence."

Example:

A was arrested for serious physical injuries inflicted on

and, pending his investigation and trial, he was detained for
one year. He was able to go out on bail after one year. Later, he
was summoned for the execution of his sentence, he having been
found guilty. Because he failed to appear, the court issued an
order for his arrest and confiscation of his bond. Although, he is
not covered by paragraph No. 1 of Art. 29, as amended, A will
not be credited in the service of his sentence for serious physical
injuries with one year or four-fifths of one year preventive
imprisonment.

S e c t i o n T wo . — E ffect s of th e p e n a l t i e s a c c o r d i n
g t o th ei r r e s p e c t i v e n a t u r e

Art. 30 . Effects of the penalties of perpetual or temporary abso-

lute disqualification. — Th e p e n a l t i e s of p e r p e t u a l or t e m p o r a r y
a b s o l u t e d i s q u a l i f i c a t i o n for p u b l i c office shal l p r o d u c e th e
f o l l o w i n g effects:
1 . Th e d e p r i v a t i o n of th e p u b l i c offices an d emp l oy -
m e n t s w h i c h th e o f f e n d e r ma y h av e held , e ve n i f c on fe rr e
d b y p op u l a r e l e c t i o n .
2 . Th e d e p r i v a t i o n o f th e ri gh t t o vot e i n an y e l e c t i o n
for an y p op u l a r e l e c t i v e office o r t o b e e l e c t e d t o su c h

3. . Th e d i sq u al i fi ca ti on for th e offices or p ub l i c
emp loy- me n t s an d for th e e x e r c i s e o f an y o f th e ri gh t s
mentioned .
In cas e of t e m p o r a r y d i sq u al i fi ca ti on , su c h disqualifica-
tio n as i s c o m p r i s e d in p a r a g r a p h s 2 an d 3 of thi s Article shall
617
last d u r i n g th e ter m o f th e s e n t e n c e .

618
 Arts. 31-33 EFFECTS OF PENALTIES

4. . T h e l o s s o f all r i g h t s t o r e t i r e m e n t p a y o r
o t h e r s i o n fo r a n y office f o r m e r l y h e l d .

Art. 31 . Effects of the penalties of perpetual or temporary special

disqualification. — Th e p e n a l t i e s of p e r p e t u a l or t e m p o r a r y
sp eci al d i sq u al i fi ca ti on for p ub l i c office, p r o f e s s i o n , or cal li n g
shall p r o d u c e th e f o l l o w i n g effects:
The of th e office, e m p l o y m e n t ,
or ca l l i n g affec ted .
2. . Th e d i s q u a l i f i c a t i o n for h o l d i n g s i m i l a r offices
or e m p l o y m e n t s e i t h e r p e r p e t u a l l y o r d u r i n g th e ter m o f
th e s e n t e n c e , a c c o r d i n g t o th e e x t e n t o f su c h
disqualification .

Art. 32 . Effects the penalties of perpetual or temporary special

disqualification for the exercise of the right of suffrage. — Th e per-
p et u a l o r t e m p o r a r y s p e c i a l d i s q u a l i f i c a t i o n for th e e x e r c i s
e o f th e ri gh t o f su f fr ag e shal l d e p r i v e th e o f f e n d e r
perpetuall y
o r d u r i n g th e ter m o f th e s e n t e n c e , a c c o r d i n g t o th e n a t u r
e
o f sai d p e n a l t y , o f th e r i g h t t o vot e i n an y p o p u l a r e l e c t i o
n for an y p u b l i c office o r t o b e e l e c t e d t o s u c h office.
M o r e o v e r , th e of fe n d e r shal l no t b e p e r m i t t e d t o hol d an y
p u b l i c office d u r i n g th e p e r i o d o f hi s d i s q u a l i f i c a t i o n .

Art. 33 . Effects of the penalties of suspension any public of-

fice, profession, or calling, or the right of suffrage. — Th e s u s p e n s i o n
fro m p ub l i c office, p r o f e s s i o n , o r c a l l i n g , an d th e e x e r c i s e o f
th e right o f su ffrage shall d i sq u al i fy th e of fe n d e r fro m h o l d i n g
su c h office o r e x e r c i s i n g su c h p r o f e s s i o n o r c a l l i n g o r righ t o
f su ff ra ge d u r i n g th e ter m o f th e s e n t e n c e .
Th e p e r s o n s u s p e n d e d fro m h o l d i n g p u b l i c office shal l
no t hol d a n o t h e r h a v i n g s i m i l a r f u n c t i o n s d u r i n g th e p e r i o
d
619
o f hi s s u s p e n s i o n .

620
 EFFECTS OF PENALTIES Arts. 34-35

Art. 34 . Civil interdiction. — Civil i n t e r d i c t i o n shall d ep ri v e

th e of fe n d e r d u r i n g th e ti m e o f hi s s e n t e n c e o f th e ri gh t s o f
p a r e n t a l a u t h o r i t y , o r g u a r d i a n s h i p , e i t h e r a s t o th e p e r s o
n o r p r o p e r t y o f an y w a r d , o f m a r i t a l a u t h o r i t y , o f th e
ri gh t t o m a n a g e hi s p r o p e r t y , an d o f th e ri gh t t o d i s p o s e o f
su c h p r o p e r t y by an y ac t or an y c o n v e y a n c e inter vivos.

Art. 35 . Effects bond to keep the peace. — It shall be th e dut

y o f an y p e r s o n s e n t e n c e d t o giv e b o n d t o k e e p th e p e ac e , t o
p r e s e n t tw o su f fi ci en t s u r e t i e s wh o sh al l u n d e r t a k e tha t su c h
p e r s o n wil l no t c o m m i t th e o f f e n s e s o u g h t t o b e p r e v e n t e d
, an d tha t i n cas e su c h o f f e n s e b e c o m m i t t e d th e y wil l pa y th e
a m o u n t d e t e r m i n e d b y th e c ou r t i n it s j u d g m e n t , o r o t h e r w i s
e t o d e p o s i t s u c h a m o u n t i n th e office o f th e cler k o f th e
cour t t o g u a r a n t e e sai d u n d e r t a k i n g .

Th e co u r t shal l d e t e r m i n e , a c c o r d i n g t o it s d i s c r e t i o n
, th e p e r i o d o f d u r a t i o n o f th e b on d .
S h o u l d th e p e r s o n s e n t e n c e d fail t o giv e th e b on d a s
r e q u i r e d h e shal l b e d e t a i n e d for a p e r i o d w h i c h shall i n n o
cas e e x c e e d si x m o n t h s , i f h e shal l h a v e b e e n p r o s e c u t e d
for a gr av e o r les s g ra v e fel on y , an d shal l no t e x c e e d th i rt y
days , if for a l i gh t fel on y .

Outline of the effects of penalties under Arts. 30-35.

1. The penalties of perpetual or temporary absolute disquali-
fication for public office produce the following effects:
a. Deprivation of public offices and employments, even
if by election.
b. Deprivation of right to vote or to be elected.
Disqualification for the offices or public employments
and for the exercise of any of the rights mentioned.
d. Loss of right to retirement pay or pension for any
office formerly held. (Art. 30)

621
Arts. 30-35 EFFECTS OF PENALTIES

Note: Perpetual absolute disqualification is ef-

fective during the lifetime of the convict and even
after the service of the sentence. Temporary absolute
disqualification lasts during the term of the sentence,
and is removed after the service of the same, except
deprivation of the public office or employment;
and (2) loss of all rights to retirement pay or other
pension for any office formerly held. (See Art. 30, par.
No. 3.)

2. The penalties of perpetual or temporary special disquali-

fication for public office, profession or calling produce the
following effects:
a. Deprivation of the office, employment, profession or
calling affected.
b. Disqualification for holding similar offices or employ-
ments perpetually or during the term of the sentence.
(Art. 31)
3. The penalties of perpetual or temporary special disquali-
fication for the exercise of the right of suffrage produce the
following effects:
a. Deprivation of the right to vote or to be elected to any
public office.
b. Cannot hold any public office during the period of
disqualification. (Art. 32)
4. The penalties of suspension from public office, profession or
calling or the right of suffrage produce the following effects:
a. Disqualification from holding such office or exercising
such profession or calling or right of suffrage during
the term of the sentence.
b. If suspended from public office, the offender cannot
hold another office having similar functions during
the period of suspension. (Art. 33)
5. Civil interdiction shall produce the following effects:
a. Deprivation of the rights of parental authority or
guardianship of any ward.

622
 EFFECTS OF PENALTIES 30-35

b. Deprivation of marital authority.

Deprivation of the right to manage his property and
of the right to dispose of such property by any act or
any conveyance inter (Art. 34)

Note: But he can dispose of such property by will

or donation mortis causa.

6. Bonds to keep the peace.

a. The offender must present two sufficient sureties who
shall undertake that the offender will not commit
the offense sought to be prevented, and that in case
such offense be committed they will pay the amount
determined by the court; or
The offender must deposit such amount with the clerk
of court to guarantee said undertaking; or
The offender may be detained, if he cannot give the
bond, for a period not to exceed 6 months if prosecuted
for grave or less grave felony, or for a period not to
exceed 30 days, if for a light felony. (Art. 35)

Note: Bond to keep the peace is different from

bail bond which is posted for the provisional release
of a person arrested for or accused of a crime.

Disqualification is withholding of privilege, not a denial of

right.
The manifest purpose of the restrictions upon the right of suf-
frage or to hold office is to preserve the purity of elections. The pre-
sumption is that one rendered infamous by conviction of felony, or
other base offenses indicative of moral turpitude, is unfit to exercise
the privilege of suffrage or to hold office. The exclusion must for this
reason be adjudged a mere disqualification, imposed for protection
and not for punishment, the withholding of a privilege and not the
denial of a personal right. (People vs. Corral, 62 Phil. 945, 948)
In this case, the accused, who was sentenced in 1910 by final
judgment to suffer 8 years and 1 day of prision mayor for an offense
and who was not granted plenary pardon, voted at the general elec-
tions held on June 5, 1934. It was held that the right of the State to

623
 Art. 36 PARDON THE PRESIDENT

deprive persons of the right of suffrage by reason of their having been

convicted of crime, is beyond question.
The accessory penalty of temporary absolute disqualification
disqualifies the convict for public office and for the right to vote, such
disqualification to last only during the term of the sentence. (Lacuna
vs. Abes, No. Aug. 27, 1968, 24 SCRA 780, 784)

"Perpetually or during the term of the sentence, according

to the nature of said penalty."
The word and the phrase "during the term of
the sentence" should be applied distributively to their respective
antecedents; thus, the word "perpetually" refers to the perpetual
kind of special disqualification, while the phrase "during the term
of the sentence" refers to the temporary special disqualification. The
duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their
durations into one period, states that such duration is to
the nature of said penalty" — which means according to whether the
penalty is the perpetual or the temporary special disqualification.
(Lacuna vs. Abes, supra, at 784)

What suspension from exercise of profession covers.

Suspension, which deprives the offender of the right of exercis-
ing any kind of profession or calling, covers such calling or trade as
for instance that of broker, master plumber, etc.

Bond to keep the peace is not bail bond.

Bond to keep the peace or for good behavior is imposed as a
penalty in threats. (Art. 284) This is different from a bail bond (Rule
Revised Rules of Criminal Procedure) to secure the provisional
release of an accused person after his arrest or during trial but before
final judgment of conviction.

Art. 36 . Pardon; its effects. — A p a r d o n sh al l no t wo r k th e

r e s t o r a t i o n o f th e ri gh t t o hol d p u b l i c o r th e r i g h t o f
su ffrage, u n l e s s su c h ri gh t s b e e x p r e s s l y r e s t o r e d b y th e t er m
s o f th e p a r d o n .

624
 PARDON THE PRESIDENT Art. 36

A pardo n i n n o c as e e x e m p t th e c u l p r i t fro m th e
p a y m e n t o f th e ci vi l i n d e m n i t y i m p o s e d u p o n hi m b y th e
sentence .

Effects of pardon by the President.

A pardon shall not restore the right to hold public office or
the right of

Exception: When any or both such rights is or are

expressly restored by the terms of the pardon.
2. It shall not exempt the culprit from the payment of the
civil indemnity. The pardon cannot make an exception to
this rule.

Limitations upon the exercise of the pardoning power:

That the power can be exercised only after conviction;
2. That such power does not extend to cases of impeachment.
(Cristobal vs. Labrador, 71 Phil. 34 , 38)

Pardon may be granted only "after conviction by final judg-

ment."
The by final limitation under Section 19,
Article VII of the present Constitution prohibits the grant of pardon,
whether full or conditional, to an accused during the pendency of
his appeal from his conviction by the trial court. Any application
therefor, if one is made, should not be acted upon nor the process
toward its grant be commenced unless the appeal is withdrawn.
Accordingly, the agencies or instrumentalities of the Government
concerned must require proof from the accused that he has not ap-
pealed from his conviction or that he has withdrawn his appeal. Such
proof may be in the form of a certification issued by the trial court
or the appellate court, as the case may be. The acceptance of the
pardon shall not operate as an abandonment or waiver of the
and the release of an accused by virtue of a pardon, commutation of
sentence, or parole before the withdrawal of an appeal shall render
those responsible therefor administratively liable. (People vs. Salle,
Jr., 250 SCRA 592)

625
 Art. 36 PARDON BY THE PRESIDENT

Pardon granted in general terms does not include accessory

penalty.
the principal penalty is remitted by pardon, only the ef-
fect of that principal penalty is extinguished, but not the accessory
penalties attached to it.
For instance, a person sentenced to prision mayor (which car-
ries with it the accessory penalty of perpetual special disqualification
from the right of suffrage) is pardoned by the President. Such pardon
does not restore to the ex-convict the right to vote, unless such right
be expressly restored by the terms of the pardon.

Exception :
When an absolute pardon is granted after the term of imprison-
ment has expired, it removes all that is left of the consequences of
conviction. (Cristobal vs. Labrador, supra)
Although the rule is that a pardon does not restore the right to
hold public office or the right of suffrage, unless expressly stated in the
pardon, the exception is where the facts and circumstances of the case
already show that the purpose of the Chief Executive is precisely to
restore those rights. For instance, when it appears that the respond-
ent mayor-elect committed the offense more than 25 years ago; that he
was granted conditional pardon in 1915; that thereafter he exercised
the right of suffrage, was elected councilor for the period from 1918 to
that he was elected municipal president three times in succession
(1922 to 1931); that he was elected mayor in 1940; it is evident that
the purpose in granting him absolute pardon, after the election of 1940
but before the date fixed by law for assuming office, was to enable him
to assume the position in deference to the popular will. (Pelobello vs.
Palatino, 72 Phil. 441 , 443; Cristobal vs. Labrador, supra)

Pardon after serving 30 years does not remove perpetual

absolute disqualification.
Suppose a pardon is granted upon a convict undergoing life im-
prisonment after serving 30 years. Is the convict likewise pardoned
from the penalty of perpetual absolute disqualification which is an
accessory to life imprisonment?
No, because Art. 30 is silent as to the maximum duration of
perpetual disqualification and Art. expressly provides that a

626
 COST Art. 37

don shall not work the restoration of the right to hold public office or
the right of suffrage, unless such rights be expressly restored by the
terms of the pardon. (Guevara)

Pardon by the Chief Executive distinguished from pardon

by the offended
1. Pardon by the Chief Executive extinguishes the criminal
liability of the offender; such is not the case when the par-
don is given by the offended party.

2. Pardon by the Chief Executive cannot include civil liability

which the offender must pay; but the offended party can
waive the civil liability which the offender must pay.
3. In cases where the law allows pardon by the offended
party (Art. 344), the pardon should be given before the
institution of criminal prosecution and must be extended
to both offenders; whereas, pardon by the Chief Executive
is granted only after conviction and may be extended to
any of the

Art. 37 . Costs — What are included. — Cost s shal l i n c l u d e

fee s an d i n d e m n i t i e s i n th e c o u r s e o f th e j u d i c i a l p r o c e e d i n g s
, w h e t h e r t h e y b e fixe d o r u n a l t e r a b l e a m o u n t s p r e v i o u s l y
d e t e r m i n e d b y la w o r r e g u l a t i o n s i n force , o r a m o u n t s no t
su b jec t t o s c h e d u l e .

The following are included in costs:

1. Fees, and
2. Indemnities, in the course of judicial proceedings.

Costs are chargeable to the accused in case of conviction.

Costs which are expenses of litigation are chargeable to the ac-
cused only in cases of conviction. In case of acquittal, the costs are
de each party bearing his own expenses.
Thus, of three accused, two were convicted while the third was
acquitted. Only one of the two convicted appealed. His conviction

627
 Art. 38 PECUNIARY LIABILITIES

was affirmed. He was ordered to pay one-third of the costs. (People

vs. Bongo, No. L-26909, Feb. 22, 1974, 55 SCRA 547, 548, 555)

No costs against the Republic, unless the law provides the

contrary.
No costs shall be allowed against the Republic of the Philippines,
unless otherwise provided by law. (Sec. 1, Rule 142, Rules of Court)

Payment of costs is discretionary.

The payment of costs is a matter that rests entirely upon the
discretion of courts. Appeal will hardly lie to interfere with the dis-
cretion. (Roque vs. Vda. de Cogan, 40 10th 35; Bacolod-
Murcia Planters' Assn., Inc. vs. Chua, 84 Phil. 596, 599)
Whether costs should be assessed against the accused lie within
the discretion of the court. The Government may request the court
to assess costs against the accused, but not as a right. No attorney's
fees shall be taxed as cost against the adverse party. (Sec. 6, Rule
142, Rules of Court)

Art. 38 . Pecuniary liabilities — Order of payment. — In cas e

th e p r o p e r t y o f th e o f f e n d e r s h o u l d no t b e su ff i c i e n t for th e
p a y m e n t o f all hi s p e c u n i a r y l i a b i l i t i e s , th e s a m e shal l b e me
t i n th e f o l l o w i n g ord er :

1. Th e r e p a r a t i o n o f th e d a m a g e c a u s e d .
2. I n d e m n i f i c a t i o n o f th e c o n s e q u e n t i a l d a m a g e s
.3. Th e fine.
4. Th e co st s o f th e p r o c e e d i n g s .

What are the pecuniary liabilities of persons criminally li-

able?
They are:

The reparation of the damage caused.

2. Indemnification of the consequential damages.

628
 PECUNIARY LIABILITIES Art. 38

3. Fine.
4. Costs of proceedings.

When is Art. 38 applicable?

It is applicable "in case the property of the offender should not
be sufficient for the payment all his pecuniary The order
of payment is provided in this article.

Hence, if the offender has sufficient or no property, there is no

use for Art. 38.

The order of payment of pecuniary liabilities in Article

38 must be observed.
Thus, in robbery with violence against persons, A inflicted upon
B serious physical injuries and took the latter's watch and ring worth
As a result of the physical injuries inflicted, B was hospitalized
and was not able to attend to his work for one month. For hospital
bills, he paid For his failure to earn his salary for one month,
he lost If A, after conviction, had only property not exempt
from execution worth it shall be applied to the payment of
the watch and ring, which could not be returned, because they are
covered by the of the damage caused" and it is No. 1 in
the order of payment.
The hospital bills in the amount of and the salary which
he failed to earn in the sum of are covered by the "indemnifica-
tion of the consequential damages" which is only No. 2 in the order
of payment.

Courts cannot disregard the order of payment.

When respondent judge permitted the accused to pay the
fine ahead and postponed the payment of the indemnity of
to some other date, he obviously deviated from the express
mandates of the law. Indemnity is No. 2 and fine is No. 3 in the order
of payment. What was done was exactly the opposite of what the law
What the court should have done was to commit the accused
to jail for a period not exceeding six months (Art. 39, par. 2) upon the
nonpayment on the date scheduled for its execution of the indemnity
imposed by the sentence. (Domalaon vs. Yap, C.A., 59 O.G. 6675)

629
 Art. 39 SUBSIDIARY PENALTY

There is reparation in the crime of rape when the dress of the woman
was torn.
In a case where the accused was convicted of rape, that part of
the judgment ordering the defendant to pay the value of the woman's
torn garments is reparation for the damage caused to her property
and is distinct from indemnity. (U.S. vs. 4 Phil. 204, 206)

Liability of conjugal partnership assets.

Fines and indemnities imposed upon either husband or wife may
be enforced against the partnership assets after the responsibilities
enumerated in Article 161 of the Civil Code have been covered, if the
spouse who is bound should have no exclusive property or if it should
be insufficient, which presupposes that the conjugal partnership is
still existing. (People vs. Lagrimas, No. L-25355, Aug. 28, 1969, 29
SCRA 153, 158)

Art. 39 . Subsidiary penalty. — If th e c o n v i c t ha s no p r o p e r t y

wi t h w h i c h t o m e e t th e fine m e n t i o n e d i n p a r a g r a p h 3 o f th e
nex t p r e c e d i n g Ar ti cl e , h e sh al l b e s u b j e c t t o a s u b s i d i a r y
p e r s o n a l l i ab i l i t y a t th e rat e o f on e da y for e a c h ei gh t p e s o s ,
su b jec t t o th e f o l l o w i n g r u l es :
If th e p r i n c i p a l p e n a l t y i m p o s e d be prision
correccional o r arresto an d fine, h e sh al l r e m a i n u n d e r
c o n f i n e m e n t u n ti l hi s fine r e f e r r e d i n th e p r e c e d i n g
p a r a g r a p h i s sati sfi ed , bu t hi s s u b s i d i a r y i m p r i s o n m e n t
sh al l no t e x c e e d o n e - th i r d o f th e ter m o f th e s e n t e n c e , an d
i n n o cas e sh al l i t c o n t i n u e for mor e tha n on e year , an d n o
f r a c t i o n o r par t o f a da y shal l b e c o u n t e d a g a i n s t th e
prisoner .
2 . Whe n th e p r i n c i p a l p e n a l t y i m p o s e d b e onl y a fine,
th e s u b s i d i a r y i m p r i s o n m e n t sh al l no t e x c e e d si x m o n t h s
, i f th e cu lp ri t shal l h a v e b e e n p r o s e c u t e d for a g r a v e o r les
s gr av e fel on y, an d shal l no t e x c e e d fi fteen d a ys , i f for a l i gh t
felony.

3 . Whe n th e p r i n c i p a l p e n a l t y i m p o s e d i s h i g h e r th a n
prision correccional no s u b s i d i a r y i m p r i s o n m e n t sh al l be im-
p o s e d u p o n th e cu l p r i t .

630
 SUBSIDIARY PENALTY Art. 39

4. I f th e p e n a l t y i m p o s e d i s no t t o b e e x e c u t e
d b y c o n f i n e m e n t i n a p e n a l i n s t i t u t i o n , bu t su c h p e n a l t y i s o
f fixed d u r a t i o n , th e c o n v i c t , d u r i n g th e p e r i o d o f ti m e estab -
l i s h e d i n th e p r e c e d i n g r u l e s , sh al l c o n t i n u e t o su ffer th e
sa m e d e p r i v a t i o n s a s t h o s e o f w h i c h th e p r i n c i p a l p e n a l t y
consists .

Th e s u b s i d i a r y p e r s o n a l l i ab i l i t y w h i c h th e c o n v i c
t su ffere d b y r e a s o n o f hi s i n s o l v e n c y shall no t
r el i e v e
hi m from th e fine i n c as e hi s f i n a n c i al c i r c u m s t a n c e s s h o u l d
i m p r o v e . (As amended by Rep. Act No. 5465, which lapsed into law
on April

What is subsidiary penalty?

It is a subsidiary personal liability to be suffered by the convict
who has no property with which to meet the fine, at the rate of one day
for each eight pesos, subject to the rules provided for in Article 39.

Judgment of conviction must impose subsidiary imprison-

ment.
An accused cannot be made to undergo subsidiary imprison-
ment in case of insolvency to pay the fine imposed upon him when
the subsidiary imprisonment is not imposed in the judgment of con-
viction. (Ramos vs. Gonong, No. Aug. 31 , 1961, 72 SCRA
559, 565)

No subsidiary penalty for nonpayment of other pecuniary

liabilities.
As Article 39 is now worded, there is no subsidiary penalty
for nonpayment of: (1) the reparation of the damage caused, (2) in-
demnification of the consequential damages, and (3) the costs of the
proceedings. (See Ramos vs. Gonong, supra, at 566)

Retroactive application of RA 5465.

In that it eliminated the pecuniary liabilities of the accused,
other than fine, in Article 39 of the Revised Penal Code, Rep. Act 5465
is favorable to the It has retroactive application. (Buiser vs.
631
 Art. 39 SUBSIDIARY PENALTY

People, No. L-32377, Oct. SCRA 750, 752, citing People

vs. 55 SCRA 435)

"If the convict has no property with which to meet the

fine."
Article 39 applies only when the convict has no property with
which to meet the fine mentioned in paragraph 3 of Article 38.
It would seem that the convict, who has property enough to meet
the fine and not exempt from execution, cannot choose to serve the
subsidiary penalty, instead of for the fine.
A fine, whether imposed as a single or as an alternative penalty,
should not and cannot be reduced or converted into a prison term.
There is no rule for transmutation of the amount of a fine into a term
of imprisonment. (People vs. Dacuycuy, G.R. No. 45127, May
173 SCRA 90, 101)

The word "principal" should be omitted.

The word referring to the penalty imposed is not
the correct translation. The words used in Spanish la pena
impuesta" (when the penalty imposed) should be controlling. (People
vs. Concepcion, 59 Phil. 518, 522)

Subsidiary imprisonment is not an accessory penalty.

Subsidiary imprisonment is not an accessory That sub-
imprisonment is a penalty, there can be no doubt, for according
to Article 39, it is imposed upon the accused and served by him in
lieu of the fine which he fails to pay on account of insolvency.
Therefore, the culprit cannot be made to undergo subsidiary
imprisonment unless the judgment expressly so provides. (People vs.
Fajardo, 65 Phil. 539, 542)

Illustration:

A was convicted of bribery and sentenced to 2 months and 1

day arresto mayor as minimum, to 1 year, 8 months and 21 days
correccional, as maximum, to pay a fine of P40.00 , with the
accessories of the law, and to pay the costs. Since the decision does
not provide for subsidiary imprisonment in the event of inability of

632
 SUBSIDIARY PENALTY Art. 39

A to pay the fine A cannot be required to serve subsidiary

imprisonment, if he appears to be insolvent.
Article 73 of the Revised Penal Code provides that the
courts shall impose a penalty which, by provision of law, carries with
it other penalties, according to the provisions of Articles 40, 41 , 42,
43 , 44, and 45 of this Code, it must be understood that the accessory
penalties are also imposed upon the convict." Subsidiary imprison-
ment is not covered by any of those articles. (People vs.
C.A., 52 O.G. 244)

Rules as to subsidiary imprisonment:

If the penalty imposed is prision correccional or arresto and
fine — subsidiary imprisonment, not to exceed 1/3 of the
term of the sentence, and in no case to continue for more
than one year. Fraction or part of a day, not counted.

When the penalty imposed is fine only — subsidiary impris-

onment, not to exceed 6 months, if the culprit is prosecuted
for grave or less grave felony, and not to exceed 15 days,
if prosecuted for light felony.
3. When the penalty imposed is higher than prision correc-
tional — no subsidiary imprisonment.
4. If the penalty imposed is not to be executed by confinement,
but of fixed duration — subsidiary penalty shall consist in
the same deprivations as those of the principal penalty,
under the same rules as in Nos. 1, 2 and 3 above.
5. In case the financial circumstances of the convict should
improve, he shall pay the fine, notwithstanding the fact
that the convict suffered subsidiary personal liability
therefor.

Examples of the application of the rules:

(1) Rule 1 (Applicable only when the penalty imposed is im-
prisonment not exceeding 6 years): A is convicted of falsi-
fication by private individual (Art. 172) and sentenced to
4 years, 9 months and 10 days of prision correccional, as
the maximum term of the indeterminate penalty, and to
pay a fine of

633
Art. 39 SUBSIDIARY PENALTY

If A has no property with which to meet the fine, he

will have to suffer subsidiary imprisonment at the rate
of one day for each which he cannot pay, but not to
exceed 365 days, computed as follows:
365 days in one year
x 4 years
1,460 — days in 4 years
270 — days in 9 months
10 — days
3) 1,740 — days in 4 years, 9 months and 10 days
580 — days, which represent the penalty
imposed
- amount fine
500 — days, which are less than 1/3 of the
penalty imposed (580 days)

Although the quotient of 500 days does not exceed 1/3 of the
term of the penalty imposed, yet A can be made to suffer subsidiary
imprisonment only for 365 because "in no case shall it continue
for more than one year."

The subsidiary imprisonment not to exceed one-third of the penalty

imposed and not to exceed one year.
When the quotient, after dividing the amount of the fine by
is one year or less and such quotient does not exceed 1/3
of the penalty imposed, the whole period of i mprison ment repre-
sented by the quotient must be served by the convict as subsidiary
penalty.

Illustration:

A is convicted of a crime and sentenced to 3 years prision

correccional, as the maximum term of the indeterminate penalty,
and to pay a fine of P2,000.00 , which A could not pay. P2,000.00
P8.00 250 days. Since 1/3 of the penalty imposed is 1 year
and the quotient is 250 days, which does not exceed 1 year, all
the 250 days imprisonment must be served by A for nonpayment
of the fine, in addition to the penalty of 3 years for the crime he
committed.

634
 SUBSIDIARY PENALTY Art. 39

Where the defendant was sentenced to 21 days of imprisonment

and a fine the subsidiary imprisonment cannot exceed
7 days. 125 days. But since the subsidiary im-
prisonment cannot exceed 1/3 of the penalty imposed, he cannot be
required to serve all the 125 days of imprisonment for failure to pay
the fine.

No subsidiary imprisonment if the indemnity is less than

If the indemnity which the accused should pay is less than

no subsidiary imprisonment should be imposed for its non-payment.
(See People vs. Abad, C.A., 36 O.G. 653 and U.S. vs. Ballesteros, 1
Phil. 208)
(2) Rule 2 (Applicable when the penalty imposed is fine only): A
is sentenced to pay a fine of for a crime punishable
by a fine not exceeding In case of insolvency, A
shall suffer subsidiary imprisonment at the rate of one day
for every which he cannot pay. To divide
by will be 100 days. Since A is prosecuted for a less
grave felony, the fine provided by law being not less than
and not more than (Art. 26), the dura-
tion of his subsidiary imprisonment shall be all the 100
days or 3 months and 10 days, the same not exceeding 6
months.
But suppose is sentenced to pay a fine for
a crime punishable by a fine not exceeding what
is the duration of the subsidiary imprisonment? Why? It
cannot exceed 15 days, because he is prosecuted for a light
felony, the fine provided by law not exceeding
(Art. 9)
When the penalty is fine only, the phrases, the culprit shall
have been prosecuted for a grave or less grave felony" and "if for a
light felony," are controlling.
When the penalty prescribed by the Code for the crime
is fine only, the duration of the subsidiary penalty is based
on the classification of the felony.
When the fine provided by the Code, as the penalty for
the offense, is exactly P200.00, apply Art. 9 in determin-
ing the classification of the felony, because that article, in

635
Art. 39 SUBSIDIARY PENALTY

light felony, states that the fine is "not exceeding

When the amount of the fine fixed by the Code
as the penalty for the offense is more than apply
Art. 26 to determine the classification of the felony.
(3) Rule 4: A is sentenced to 4 years, 9 months and 10 days of
destierro and to pay a fine If A has no money
with which to pay the fine, he shall suffer an additional
period of destierro at the same rate of one day for every
The same rule is to be applied when the principal
penalty is suspension and fine.

The penalty imposed must be prision correccional, (2)

ar- resto mayor, (3) arresto menor, (4) suspension, (5)
destierro,
or (6) only.
Hence, if the penalty imposed by the court is not one of them,
subsidiary penalty cannot be There is no subsidiary penalty,
if the penalty imposed by the court is prision mayor, reclusion
temporal, or reclusion perpetua.

Six years and one day is prision mayor.

Will there be subsidiary imprisonment if the penalty imposed
is 6 years and 1 day?
No, because when one day is added to 6 years, it raises the
prison sentence from prision correccional to prision mayor; hence, no
subsidiary imprisonment. (Rosares vs. Director of Prisons, 85 Phil.
730, 731)

Additional penalty for habitual delinquency should be in-

cluded in determining whether or not subsidiary penalty
should be imposed.
Even if the penalty imposed is not higher than prision correccional,
if the accused is a habitual delinquent who deserves an additional
penalty of 12 years and 1 day of reclusion temporal, there is no
subsidiary imprisonment. (People vs. Concepcion, 59 Phil. 518, 522)

"If the principal penalty imposed."

When the penalty prescribed for the offense is imprisonment, it
is the penalty actually imposed by the Court, not the penalty provided
636
 SUBSIDIARY PENALTY Art. 39

for by the Code, which should be considered in determining whether

or not subsidiary penalty should be imposed.
Thus, even if the penalty provided for by the Code for the crime
is prision mayor but there are two mitigating circumstances without
any aggravating circumstance (Art. 64, par. 5), and the court imposes
2 years, 11 months and 11 days prision correccional, subsidiary
penalty may be imposed for nonpayment of the fine.

Penalty not to be executed by confinement, but has fixed

duration.
Under Art. 236, the penalty of suspension and fine from
to shall be imposed upon any person who shall assume the
performance of the duties and powers of any public office without
first being sworn in or having given bond required by law. Such
suspension shall last until he shall have complied with the for-
malities. If he cannot pay the fine, although he already complied
with the formalities required by said Art. 236, his suspension shall
continue until the amount of the fine is covered at the rate of one
day suspension for every

Penalty not to be executed by confinement and has no

fixed duration.
Example:

The penalty is fine not exceeding and censure. (Art.

365, par. 4)
If the accused cannot pay the fine, there is no subsidiary liability,
because the penalty of censure has no fixed duration and is not to be
executed by confinement.
Rule No. Art. 39, specifically mentions the penalty prision
correccional or arresto and fine"; Rule No. 2 of the same article speaks
of fine only; and Rule No. 4 mentions penalty of "fixed duration."
Hence, when fine goes with a penalty not to be executed by impris-
onment or destierro and which has no fixed duration, there is no
subsidiary penalty for nonpayment of the fine. (People vs. Laure, 19
CAR [2s] 977,
In a case where the accused was charged with the crime of
slight physical injuries and was sentenced by the trial court to pay

637
 Art. 39 SUBSIDIARY PENALTY

a fine of 530.00 and public censure, with subsidiary imprisonment in

case of insolvency, the Court of Appeals held that the trial court is not
authorized to impose subsidiary imprisonment in case of insolvency.
(People vs. Garcia, CA-G.R. No. 25764-R, O.G. 4938)

The subsidiary penalty is "the same deprivations as those

of which the principal penalty consists."
If the penalty imposed is imprisonment, the subsidiary penalty
must be imprisonment also. If the penalty imposed is destierro, the
subsidiary penalty must be destierro also. If the penalty imposed is
suspension, the subsidiary penalty must be suspension also. This is
so, because paragraph No. 4 of Art. 39 states that the convict "shall
continue to suffer the same deprivations as those of which the prin-
cipal penalty

The convict who served subsidiary penalty may still be re-

quired to pay the fine.
It will be noted from paragraph No. 5 of Art. 39, as amended,
that the convict who suffered subsidiary penalty for nonpayment
of the fine is not relieved from paying the fine should his financial
circumstances improve.
Before Art. 39 was amended, once a convict suffered subsidiary
penalty for nonpayment of the fine, he was forever relieved from pay-
ing the fine.

Subsidiary imprisonment is not imprisonment for debt.

The laws which prohibit imprisonment for debt relate to the
imprisonment of debtors for liability incurred in the fulfillment of
contracts, but not to the cases seeking the enforcement of penal
statutes that provide for the payment of money as a penalty for the
commission of crime. (U.S. vs. Cara, 41 Phil. 828, 834-837)
Thus, the civil liability arising from libel is not a "debt" within
the purview of the constitutional provision against imprisonment for
nonpayment of "debt." Insofar as said injunction is concerned, "debt"
means an obligation to pay a sum of money "arising from contract,"
express or implied. In addition to being part of the penalty, the civil
liability in libel arises from a tort or crime; hence, from law. As a
consequence, the subsidiary imprisonment for nonpayment of said

638
 SUBSIDIARY PENALTY Art. 39

liability does not violate the constitutional injunction. vs.

Court of Appeals, No. L-22794, Jan. 16, 1968, 22 SCRA 44, 47)

No subsidiary penalty in the following cases:

When the penalty imposed is higher than prision correc-
cional. (Par. 3, Art. 39; People vs. Bati, G.R. No. 87429,
Aug. SCRA People vs. Domingo, G.R.
No. 82375, April vs.
Pablo, Matter No. Feb. SCRA
731 , 732)
2. For failure to pay the reparation of the damage caused,
indemnification of the consequential damages, and the
costs of the proceedings.
3. When the penalty imposed is fine and a penalty not to he
executed by confinement in a penal institution and which
has no fixed duration.

Subsidiary imprisonment under special law.

Act No. 1732 of the Philippine Commission provides for the rules
in case the court shall impose a fine as the whole or as a part of the
punishment for any criminal offense made punishable by any special
law.

Rules:
When the court merely imposes a fine, the subsidiary li-
ability shall not exceed 6 months, at the rate of one day of
imprisonment for every
2. In case both fine and imprisonment are imposed, the sub-
sidiary liability shall not exceed 1/3 of the term of impris-
onment, and in no case shall it exceed 1 year.
3. In case the imprisonment is for more than 6 years in addi-
tion to a fine, there shall be no subsidiary imprisonment.
4. When a fine is imposed for violation of any municipal
ordinance or ordinances of the City of Manila, the rate is
one day for every until the fine is satisfied, provided
that the total subsidiary imprisonment does not exceed 6

639
Art. 39 SUBSIDIARY PENALTY

months, if the penalty imposed is fine alone; and not more

than 1/3 of the principal penalty, if it is imposed together
with imprisonment.
The provisions of Act No. 1732 are applicable to offenses made
punishable by acts of the Philippine Legislature. (U.S. vs. Esteban,
42 Phil. 1, 2)

Act No. is not applicable to offenses made

punishable by the Act of the United States Congress.
Subsidiary imprisonment cannot be imposed on the defendant
convicted of violating Sec. 2 of the Act of U.S. Congress of July 16,
1918, for failure to pay the fine, because said Act contains no provi-
sion authorizing the imposition of subsidiary penalty. Neither Art.
39 of the Revised Penal Code nor Act No. 1732 is applicable. (People
vs. Tan, 51 Phil. 71, 75)

Since the Tax Code does not provide for the imposition
of a subsidiary penalty in case of insolvency, no
subsidiary imprisonment can be imposed.
Where the defendant is charged with having failed to pay on or
before May 15 or August 15 of certain years his taxes, as required
by paragraphs (b) and (c), Section 51 of the Tax Code, the provision
of law relative to the imposition of subsidiary imprisonment in case
of insolvency is Section 353 of the Tax Code. The subsidiary penalty
provided in said section refers only to non-payment of the fine and
not of the taxes due. In other words, while the appealed decision is
correct as regards the imposition of the subsidiary imprisonment in
case of failure to pay the fine, the same is erroneous with respect to
the imposition of such subsidiary penalty for nonpayment of taxes
due. (People vs. Balagtas, 105 Phil. 1362-1363

No subsidiary imprisonment for nonpayment of income tax.

As the Internal Revenue Code fails to provide for the collection
of the income tax in criminal proceedings, conviction for failure or
neglect to pay such tax does not include payment of indemnity to the
State in the amount of the tax not paid, nor can subsidiary imprison-
ment be imposed in case of insolvency. (People vs. Arnault, 92 Phil.
252, 262)

640
 SUBSIDIARY PENALTY Art. 39

Subsidiary imprisonment under special laws.

Persons convicted of violation of special laws are liable to subsidi-
ary imprisonment in case of insolvency in the payment of indemnity,
except where the indemnity consists in unpaid internal revenue tax.
(People vs. Domalaon, C.A., 56 O.G. 5072, citing People vs. Moreno,
60 Phil. 712 and People vs. Arnault, 92 Phil. 252)

Subsidiary imprisonment, like accessory penalties, not es-

sential in determining jurisdiction.
The accused was prosecuted for violation of the Usury Law.
The penalty for such violation is a fine of not less than nor more
than or imprisonment for not less than 10 days nor more than
6 months, or both, and also the return of the entire sum received as
interest from the party aggrieved, and in case of nonpayment to suf-
fer subsidiary imprisonment. It was argued by the Solicitor General
that in view of the possible subsidiary imprisonment which must be
added to the principal penalty of 6 months, the justice of the peace
court has no jurisdiction in cases involving the Usury Laws.

Held: The return of the usurious interest is a civil liability and is

not a part of the penalty provided for the offense. (People vs. Caldito,
72 Phil. 262, 264-265)
What determines jurisdiction of the Court in criminal cases is
the extent of the penalty which the law imposes for the crime charged
in the information or complaint. (People vs. Fajardo, 49 Phil. 206,
210)
It is settled rule that subsidiary imprisonment, like accessory
penalties, is not essential in the determination of the criminal juris-
diction of a court. (People vs. Caldito, supra, at 267)

The decision need not state that there should not be any
subsidiary imprisonment when the law forbids it.
Counsel for appellee submits that, view of the principal
penalty imposed, the decision should state that there should not
be any subsidiary imprisonment in case of insolvency." The recom-
mendation is not well taken because Article 39, No. 3, Revised Penal
Code provides that when the principal penalty is higher than prision
correccional, no subsidiary imprisonment in case of insolvency shall

641
 Arts. 40-4 3 PENALTIES IN WHICH OTHER ACCESSORY
PENALTIES ARE INHERENT

be imposed. Hence, it is not necessary for the decision to state

the law expressly forbids. We are aware of the practice of courts
making such statement although unnecessary and find nothing
in the superfluity. However, a judgment which does not include
pronouncement is in accordance with law. (People vs. Rivera, 1
Rep. 38)

S e c t i o n Th ree . — P e n a l t i e s i n w h i c h o t h e r a c c e s s o r
y p e n a l t i e s ar e i n h e r e n t

Art. 40 . Death — Its accessory penalties. — Th e d e a t h p en al ty ,

w h e n i t i s no t e x e c u t e d b y r e a s o n o f c o m m u t a t i o n o r p a r d o n
shall carr y wi t h i t tha t o f p e r p e t u a l a b s o l u t e d i s q u a l i f i c a t i o n
an d tha t o f civil i n t e r d i c t i o n d u r i n g thi rt y ye ar s f o l l o w i n g th e
dat e o f s e n t e n c e , u n l e s s su c h a c c e s s o r y p e n a l t i e s hav e b e e n
e x p r e s s l y r e m i t t e d i n th e p a r d o n .

Art. 41 . Reclusion perpetua and reclusion temporal — Their

accessory penalties. — The p en al ti es of reclusion perpetua and reclusion
temporal shall carry wit h th e m that of civil i n t e r d i c t i o n for or
d u rin g th e p eri o d o f th e s e n t e n c e a s th e cas e ma y be , an d tha
t of p er p e tu al ab s ol u te d i sq u a l i f i c at i o n w h i c h th e offen d er shall
suffer eve n t h o u g h p a r d o n e d a s t o th e p ri n ci p al p en al t y, u n l es
s the sam e shall hav e b ee n ex p r es sl y r e m i t t e d i n th e p ar d on .

Art. 42 . Prision mayor — Its accessory penalties. — Th e p e n a l t y

prision mayor shal l carr y w i t h i t tha t of t e m p o r a r y a b s o l u t e
d i s q u a l i f i c a t i o n an d tha t o f p e r p e t u a l s p e c i a l d i s q u a l i f i c a t i o
n fro m th e ri gh t o f su f fr ag e w h i c h th e o f f e n d e r shal l su ffer
al- t h o u g h p a r d o n e d a s t o th e p r i n c i p a l p e n a l t y , u n l e s s th e
sa m e
sh all h av e b e e n e x p r e s s l y r e m i t t e d i n th e p a r d o n .

Art. 43 . Prision correccional — Its accessory penalties. — Th e

p en a l t y prision correccional shall carr y w i t h i t tha t of s u s p e n -
sio n fro m p ub l i c office, fro m th e ri gh t to fol l o w a p r o f e s s i o
642
n

643
 PENALTIES IN WHICH OTHER ACCESSORY Arts. 40-44
PENALTIES ARE INHERENT

o r ca l l i n g , an d tha t o f p e r p e t u a l s p e c i a l d i s q u a l i f i c a t i o n fro
m th e ri gh t o f su ff ra ge , i f th e d u r a t i o n o f sai d i m p r i s o n m e n t
shall e x c e e d e i g h t e e n m o n t h s . Th e o f f e n d e r su ffer th e
d i s q u a l i f i c a t i o n p r o v i d e d i n thi s ar ti cl e a l t h o u g h p a r d o n e
d a s t o th e p r i n c i p a l p e n a l t y , u n l e s s th e sam e shall hav e b e e n
e x p r e s s l y r e m i t t e d i n th e p a r d o n .

Art. Arresto — Its accessory penalties. — Th e p en a l t y ar-

resto shall carry wi t h i t tha t of s u s p e n s i o n of th e ri gh t hol d of-
fic e an d th e righ t o f su f fr ag e d u r i n g th e ter m o f th e
sentence .

Outline of accessory penalties inherent in principal penalties:

1. Death, when not executed by reason of commutation or
pardon — (1) perpetual absolute disqualification; and (2)
civil interdiction for 30 years, if not expressly remitted in
the pardon.

2. Reclusion perpetua and reclusion temporal — civil in-

terdiction for life or during the sentence; and (2) perpetual
absolute disqualification, unless expressly remitted in the
pardon of the principal penalty.
3. Prision mayor — (1) temporary absolute disqualification;
and (2) perpetual special disqualification from suffrage,
unless expressly remitted in the pardon of the principal
penalty.
4. Prision correccional — (1) suspension from public office,
profession or and (2) perpetual special disqualifica-
tion from suffrage, if the duration of imprisonment exceeds
18 months, unless expressly remitted in the pardon of the
principal penalty.
Note: There is perpetual special disqualification from suffrage,
only when the duration of the imprisonment exceeds 18
months.
5. Arresto — suspension of the right to hold office and the
right of suffrage during the term of the sentence.
644
Arts. 40-44 PENALTIES IN WHICH OTHER ACCESSORY
PENALTIES ARE INHERENT

Destierro has no accessory penalty.

The Code does not provide for any accessory penalty for

Is there accessory penalty attached to death penalty?

None, for obvious reasons.
It is only when the death penalty is not executed by reason of
commutation or pardon that the accessory penalty provided for in
Art. 40 shall be suffered by the convict.

"Unless expressly remitted in the pardon."

The accessory penalties mentioned in Articles 40 to 43 must
be suffered by the offender, although pardoned as to the principal
penalties. To be relieved of the accessory penalties, the same must
be expressly remitted in the pardon.

Persons who served out the penalty may not have the right
to exercise the right of suffrage.
Absolute pardon for any crime for which one year imprisonment
or more was meted out restores the prisoner to his political rights.
Where the penalty is less than one year, disqualification does not
attach, except when the crime committed is one against property.
For illustrations: (1) A was prosecuted for physical injuries and con-
demned to suffer 10 months imprisonment. Though not pardoned, he
is not disqualified. (2) B was prosecuted for theft and sentenced to
imprisonment for 10 months. He cannot vote unless he is pardoned.
(3) C was prosecuted and sentenced to 4 years for physical injuries, or
estafa. C has to be pardoned if he is to exercise the right of suffrage.
The nature of the crime is immaterial when the penalty imposed is
one year imprisonment or more. (Pendon vs. Diasnes, 91 Phil. 848,
explaining paragraphs a and b of Section 99 of Rep. Act No. 180, as
amended by Rep. Act No. 599)

Accessory penalties need not be expressly imposed; they

are deemed imposed.
The accessory penalties are understood to be always imposed
upon the offender by the mere fact that the law fixes a certain penalty
for a given crime.

645
 CONFISCATION AND FORFEITURE Art. 45

Article 73 provides that whenever the courts shall impose a

penalty which, by provision of law, carries with it other penalties,
according to the provisions of Articles 40, 41 , 42, 43 , 44, and 45 of
this Code, it must be understood that the accessory penalties are also
imposed upon the convict.
Thus, when the law provides that those guilty of homicide shall
be punished by reclusion temporal, it is understood that it includes
civil interdiction during the period of the sentence and perpetual
absolute disqualification.

Accessory penalties do not determine jurisdiction.

The accused was charged with estafa, and was sentenced to
arresto mayor with the accessory penalty of suspension from public
office and the right of suffrage during the term of his sentence by the
justice of the peace court.
The accused raised the question of jurisdiction of the justice of
the peace court.
Held: The justice of the peace court has jurisdiction. The acces-
sory penalties do not affect the jurisdiction of the court in which the
information is filed, because they do not modify, or alter the nature
of the penalty provided by the law. What determines jurisdiction in
criminal cases is the extent of the principal penalty which the law
imposes for the crime charged in the information or complaint. (People
vs. Fajardo, supra; People vs. Caldito, supra)

Note: Under Sec. 2 of R.A. No. 7691 , the has exclusive

original jurisdiction over offenses punishable with im-
prisonment not exceeding 6 years irrespective of the
amount of the fine, and regardless of other imposable
accessory or other penalties, including the civil liability
arising from such offenses or predicated thereon, irre-
spective of kind, nature, value or amount thereof.

Art. 45. Confiscation and forfeiture the proceeds or instruments

of the crime. — E ver y p en a l t y i m p o s e d for th e c o m m i s s i o n of a
fel on y shall carry wi t h i t th e forfei tu r e of th e p r o c e e d s of th e
cri m e an d th e i n s t r u m e n t s o r tool s wi t h w h i c h i t wa s com-
mitted.

646
Art. 45 CONFISCATION AND FORFEITURE

Su c h p r o c e e d s an d i n s t r u m e n t s o r tool s shal l b e confis-

cate d an d forfei t ed i n favo r o f th e G o v e r n m e n t , u n l e s s the y
be th e p r o p e r t y of a thi r d p e r s o n no t l i ab l e for th e offense,
bu t th os e a rt i c l e s w h i c h ar e no t sub jec t o f l awfu l c o m m e r c e
sh all b e d e s t r o y e d .

Outline of the provision of this article.

Every penalty imposed carries with it the forfeiture of the
proceeds of the crime and the instruments or tools used in
the commission of the crime.
2. The proceeds and instruments or tools of the crime are
confiscated and forfeited in favor of the Government.
3. Property of a third person not liable for the offense, is not
subject to confiscation and forfeiture.
4. Property not subject of lawful commerce (whether it belongs
to the accused or to third person) shall be destroyed.

No forfeiture where there is no criminal case.

Where the slot machines were seized under a search warrant
and there is no criminal case as yet against their operator for viola-
tion of the gambling law, and there is only a civil case brought by the
operator to enjoin the municipal officials from banning the operation
of the slot machines, the court cannot order the destruction of the
machines as not subject of lawful commerce. (Philips vs. Municipal
Mayor, 105 Phil. 1344 No. May 30, 1959)

The ruling is based on the phrase penalty imposed." A

penalty cannot be imposed unless there is a criminal case filed, the
case is tried, and the accused is convicted.
The forfeiture of the proceeds or instruments of the crime cannot
be ordered if the accused is acquitted, because no penalty is imposed.

Courts cannot order the confiscation of property belonging

to a third person if the latter is not indicted.
Under Article 45 of the Revised Penal Code, which authorizes
the confiscation and forfeiture of the proceeds of the crime and the

647
 CONFISCATION AND FORFEITURE Art. 45

instruments or tools with which it was committed except when they

are property of a third person not liable for the the court
cannot order the forfeiture of goods the owner of which is not indicted
although there is sufficient ground to hold him guilty of the acts for
which the accused has been convicted. (People vs. Delgado, C.A., 64
O.G. 785)
Where the smuggled goods are owned by a third person, they
cannot be ordered forfeited as instrument of the crime because Ar-
ticle 45 of the Revised Penal Code authorizes the confiscation and
forfeiture of the proceeds of the crime and the instrument or tools
with which it was committed except when they are "the property of a
third person not liable for the offense, although the owner could have
been convicted if he had been indicted with the accused." (People vs.
Delgado, 9 CAR [2s], 960, 979-980)

Third party ownership was considered established under the

following set of facts: that the car in question was registered in the
name of the third party, who, in the absence of strong evidence to
the contrary, must be considered as the lawful owner thereof; that
the only basis in concluding that the said car belongs to the accused
were the latter's statements during the trial of the criminal case to
that effect; that the said statements were not, however, intended to
be, nor could constitute, a claim of ownership over the car adverse to
his mother, who is the third party, but were made simply in answer
to questions propounded in court for the sole purpose of establishing
the identity of the defendant who furnished the car used by the ap-
pellants in the commission of the crime; that the chattel mortgage on
the car and its assignment in favor of the the assignee of
the chattel mortgage, were made several months before the date of
the commission of the crimes charged, which circumstance forecloses
the possibility of collusion to prevent the State from confiscating the
car. (People vs. Jose, No. L-28232, Feb. 6, 1971, 37 SCRA 450, 481)

Instruments of the crime belonging to innocent third

person may be recovered.
U.S. vs. Bruhez
(28 Phil. 305)
Facts: Lorenzo Uy was an employee and during the absence of
his employer and without the latter's knowledge, Lorenzo Uy drew out

648
Art. 45 CONFISCATION AND FORFEITURE

a check for against the bank account of the employer and used
the money consisting of seven P500 bills to bribe Bruhez.
Held: Where the money used to bribe a customs official to permit
the illegal importation of opium belongs to an innocent third party, it
should not be confiscated. The person who owns the money used in the
commission of the crime has a right to intervene in the proceeding in the
court having jurisdiction of the offense for the purpose of determining
his rights in the premises.

Confiscation can be ordered only if the property is

submitted in evidence or placed at the disposal of the
court.
U.S. vs. Filart
(30 Phil. 80)

Facts: The accused planned to sell 450 tickets, each representing

a chance on an automobile to be given as a prize to the one who would
draw the lucky number. The trial court ordered the confiscation of the
automobile and the money obtained from the sale of the tickets which
were not before the court or in the possession of any of the parties to
the action at the time the order of confiscation was made.
Held: Where it appears that in a prosecution for violation of the
Gambling Law, the automobile as well as the money used in commit-
ting such violation was not in the possession of the court, or of any
of the parties to the action, the court has no jurisdiction to order the
confiscation of the property.

Articles which are forfeited, when the order of is

al- ready cannot be returned even in case of an
acquittal.

Com. of Customs vs. Encarnacion

(95 Phil. 439)

Facts: A crew member of the PAL, coming from Madrid, brought

with him certain dutiable articles. As they were not declared, the collec-
tor of Customs decreed that said articles be forfeited to the Government.
The order of forfeiture became final. Said crew member was charged
with violation of the Revised Administrative Code for his failure to
declare dutiable articles, but after trial, he was acquitted on the ground
of insufficiency of evidence, the Court ordering at the same time the
649
Bureau of Customs to return to him said articles upon prior payment
of the customs duties due thereon.

650
 CONFISCATION AND FORFEITURE Art. 45

Held: The respondent judge erred in ordering the release of the

dutiable articles, because said articles already ceased to belong to the
crew member, as they had been forfeited to the Government.

Confiscation and forfeiture are additional penalties.

After several defendants had pleaded guilty to a charge of gam-
bling, the court sentenced each of them to pay a fine. Immediately after
the sentence was read to them, they paid the fine. Subsequently, the
fiscal discovered that a certain sum of money used by the defendants
in gambling had not been ordered confiscated. He moved the court to
modify the judgment by issuing an order confiscating the money. Can
the court properly issue such order? No, because the confiscation of
the money is an additional penalty and as the sentence has become
final, the court cannot modify, alter or change that sentence. (U.S.
vs. Hart, 24 Phil. 578, 581-582)

This Court has held in People vs. Alejandro Velasco, 100

Phil. 357, that where the penalty imposed did not include the con-
fiscation of the dollars involved, the confiscation or forfeiture of the
said dollars as is sought in the Government's appeal, would be an
additional penalty and would amount to an increase of the penalty
already imposed, thereby placing the accused in double jeopardy. And
under Rule (now Rule 122), Section 2, of the Rules of Court, the
Government cannot appeal in a criminal case if the defendant would
be placed thereby in double jeopardy. (People vs. Sanchez, 101 Phil.
745, 747-748)

When the accused has appealed, confiscation and

forfeiture not ordered by the trial court, may be imposed
by the late court.
Article 45 of the Revised Penal Code (providing for the confiscation
or forfeiture of the instruments or tools employed in the commission
of a crime) has repeatedly been applied to crimes penalized by special
laws, in default of a contrary mandate therein. While this Court in
the case People vs. 53 O.G. and People vs. Sanchez, supra,
refused to entertain the Government's appeal from the refusal of the
Court to decree such a forfeiture, it did so, not because Art. 45 of the
Penal Code did not apply but exclusively on the ground that in a
criminal case wherein the accused had not appealed, no appeal can be
interposed by the Government with a view to increasing the penalty

651
Art. 45 CONFISCATION AND FORFEITURE

imposed by the Court below; and confiscation being an additional

penalty, the accused would be placed twice in jeopardy of punishment
for the same offense, should the Government's appeal be entertained.
But in the present case, the accused's own appeal has removed all bars
to the review and correction of the penalty imposed by the court below,
even if an increase thereof should be the result. Judgment modified
by ordering that the unlicensed money found in the possession of
the appellant be declared forfeited to the Government. (People vs.
Exconde, 101 Phil. 1125, 1133-1134)
Forfeiture and confiscation of instruments and proceeds of the
offense are accessory penalties. Are they not deemed imposed?
 Chapter Four
APPLICATION OF PENALTIES

S e c t i o n One . — R u l e s for th e a p p l i c a t i o n o f p e n a l t i e s t o
th e p e r s o n s c r i m i n a l l y li ab l e for th e
g r a d u a t i o n o f th e s a m e .

Art. 46 . Penalty to be imposed upon principals in general. — Th e

penalt y prescribe d b y for th e c o m m i s s i o n o f a fe l o n y
shall b e i m p o s e d u p o n th e p r i n c i p a l s i n th e c o m m i s s i o n o f
su c h fel on y .
W h e n e v e r th e la w p r e s c r i b e s a p e n a l t y for a fe l o n y in
g e n e r a l t e r m s , i t sh al l b e u n d e r s t o o d a s a p p l i c a b l e t o th e
c o n s u m m a t e d fe l o n y .

Penalty prescribed in general terms — general rule.

The penalty prescribed by law in general terms shall be im-
posed:
Upon the principals.
2. For consummated felony.
In Art. 249, for instance, the penalty of reclusion temporal is
provided for the crime of homicide. That penalty is intended for the
principal in a consummated homicide.

Exception — when the law fixes a penalty for frustrated or

attempted felony.
The exception is when the penalty to be imposed upon the prin-
cipal in frustrated or attempted felony is fixed by law.

649
 Art. 47 WHEN DEATH PENALTY NOT TO BE IMPOSED

Whenever it is believed that the penalty lower by one or two

degrees corresponding to said acts of execution is not in proportion
to the wrong done, the law fixes a distinct penalty for the principal
in frustrated or attempted felony.
Example: The penalty prescribed by the Code for robbery
with homicide is reclusion perpetua to death (Art.
294, No. but the penalty to be imposed upon the
offender in case the homicide was consummated
but the robbery was attempted or frustrated is not
two degrees or one degree lower than said penalty,
but reclusion temporal in its maximum period to
reclusion perpetua as prescribed in Art. 297.

Graduation of penalties by degrees or by periods.

The graduation of penalties by degrees refers to stages of ex-
ecution (consummated, frustrated or attempted) and to the degree
of the criminal participation of the offender (whether as principal,
accomplice, or accessory).
The division of a divisible p enalty into three periods, as
maximum, medium and minimum, refers to the proper period of the
penalty which should be imposed when aggravating or mitigating
circumstances attend the commission of the crime.

Art. 47 . In what cases the death penalty shall not be imposed;

Automatic review of death penalty cases. — Th e d e a t h p e n a l t y
shal l b e i m p o s e d i n all c a s e s i n w h i c h i t m u s t b e i m p o s e d
u n d e r e x i s t i n g l aw s , e x c e p t w h e n th e gu i l t y p e r s o n i s b e l o w
ye ar s o f ag e a t th e ti m e o f th e c o m m i s s i o n o f th e cr i m
e o r i s mor e t h a n s e v e n t y y e a r s o f ag e o r w h e n u p o n
appea l
o r a u t o m a t i c r e v i e w o f th e cas e b y th e S u p r e m e Cou rt, th e
r e q u i r e d m a j o r i t y vot e i s no t o b t a i n e d for th e i m p o s i t i o n o
f th e d ea t h p e n a l t y , i n w h i c h c a s e s th e p e n a l t y shal l b e
reclusion perpetua.
I n all c a s e s w h e r e th e d e a t h p e n a l t y i s i m p o s e d b y th e
trial cou rt , th e r e c o r d s sh al l b e f o r w a r d e d t o th e S u p r e m e
Cour t for a u t o m a t i c r e v i e w an d j u d g m e n t b y th e c o u r t en
banc, w i t h i n t w e n t y (20) d ay s bu t no t e a r l i e r th a n fifteen
650
(15)

651
 WHEN DEATH PENALTY NOT TO BE IMPOSED Art. 47

day s after p r o m u l g a t i o n o f th e j u d g m e n t o r n o t i c e o f d en i a
l o f an y m o t i o n for ne w trial o r r e c o n s i d e r a t i o n . Th e t r a n s c r i p
t shal l als o b e f o r w a r d e d w i t h i n te n day s after th e filing
th er eo f by th e s t e n o g r a p h i c r e p o r t e r . (As amended by No.
7659)

Majority vote of the Supreme Court is required for the

imposi- tion of the death penalty.
Since the Supreme Court is composed of 15 members (Sec. 4[1],
Art. VIII, 1987 Constitution), the vote of eight (8) members is required
to impose the death penalty.

Court of Appeals to Review Death Penalty Cases.

Up until now, the Supreme Court has assumed the direct
appellate review over all criminal cases in which the penalty imposed
is death, reclusion perpetua or life i mprison ment (or lower but
involving offenses committed on the same or arising out of
the same occurrence that gave rise to the more serious offense for
which the penalty of death, reclusion perpetua, or life imprisonment
is imposed).

It must be stressed, however, that the constitutional provision

is not preclusive in character, and it does not necessarily prevent
the Court, in the exercise of its rule-making power, from adding an
intermediate appeal or review in favor of the accused.
In passing, during the deliberations among the members of the
Court, there has been a marked absence of unanimity on the crucial
point of guilt or innocent of herein appellant. Some are convinced
that the evidence would appear to be sufficient to convict; some would
accept the recommendation of acquittal from the Solicitor General
on the ground of inadequate proof of guilt beyond reasonable doubt.
Indeed, the occasion best demonstrates the typical dilemma, the
determination and appreciation of primarily factual matters, which
the Supreme Court has had to face with in automatic review cases;
yet, it is the Court of Appeals that has aptly been given the direct
mandate to review factual issues.
While the Fundamental Law requires a mandatory review by
the Supreme Court of cases where the penalty imposed is reclusion

652
Art. 47 WHEN DEATH PENALTY NOT TO BE IMPOSED

perpetua, life imprisonment, or death, nowhere, however, has

it proscribed an intermediate review. If only to ensure utmost
circumspection before the penalty of death, reclusion perpetua or
life imprisonment is imposed, the Court now deems it wise and
compelling to provide in these cases a review by the Court of Appeals
before the case is elevated to the Supreme Court. Where life and
liberty are at stake, all possible avenues to determine his guilt or
innocence must be accorded an and no care in the evaluation
of the facts can ever be overdone. A prior determination by the Court
of Appeals on, particularly, the factual issues, would minimize the
possibility of an error of judgment. If the Court of Appeals should
affirm the penalty of death, reclusion perpetua or life imprisonment,
it could then render judgment imposing the corresponding penalty
as the circumstances so warrant, refrain from entering judgment
and elevate the entire records of the case to the Supreme Court for
the its final disposition. (People vs. Mateo, G.R. Nos. 147678-87,
July 7, 2004)

The 1987 Constitution merely suspended the imposition

of the death penalty.
Section 19(1), Article III of the 1987 Constitution provides
that: fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall the death penalty be
imposed, unless, for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any death penalty already
imposed shall be reduced to reclusion A reading of said
Section will readily show that there is really nothing therein which
expressly declares the abolition of the death penalty. The 1987
Constitution merely suspended the imposition of the death penalty.
(People vs. G.R. Nos. 38969- 70 , Feb. SCRA 107,
120, 121)

R.A. No. restored the death penalty while R.A. No.

9346 prohibited the imposition of the death penalty.
Republic Act No. 7659 which took effect on 31 December 1993,
restored the death penalty for certain heinous crimes. Republic Act
No. 9346 which was enacted on June 24, 2006 prohibited the impo-
sition of the death penalty, and provided for the imposition of the
penalty reclusion perpetua in lieu of death.

653
 WHEN DEATH PENALTY NOT TO BE IMPOSED Art. 47

Death penalty is not imposed in the following cases:

When the guilty person is below 18 years of age at the time
of the commission of the crime.
2. When the guilty person is more than 70 years of age.
3. When upon appeal or automatic review of the case by the
Supreme Court, the vote of eight members is not obtained
for the imposition of the death penalty.

Death penalty shall not be imposed when guilty person is

over 70 years.
At the time the trial court rendered its decision on March
1967, Manosca was 64 years old. He should now be 74. Article 47 of
the Revised Penal Code prohibits the imposition of the death penalty
when the guilty person is more than seventy years of age. (People vs.
Alcantara, No. Nov. 21 SCRA 906, 913-914)

Exceptional cases in which the death penalty was not im-

posed.
Considering the circumstances under which the offense in
question was perpetrated in the light of the deplorable con-
ditions existing in the national penitentiary which had been
previously taken cognizance of by this Court, imposition of
the penalty of death is believed unwarranted. (People vs.
Cruz, No. L-46397, May SCRA
citing People vs. Santos, 14 SCRA 4702 and People
vs. Garcia, 96 SCRA 497)

(2) Appellant has already been detained for almost eight years
now and is presently confined at the National Peniten-
tiary awaiting the outcome of our review of the judgment
rendered by the trial court. The facts of the case tend to
show that the crime was not the result of any deliberate
and well-formed nefarious conspiracy of a criminal group.
It was rather a crime clumsily conceived on the spur of
the moment. Appellant obviously did not fully realize the
gravity of the crime he and his companions were embarking
upon. The extreme penalty of death imposed on appellant is
inappropriate. Under the given circumstances, the penalty

654
 Art. 47 WHEN DEATH PENALTY NOT TO BE IMPOSED

that should be imposed should be reduced to life imprison-

ment. (People vs. Marcos, No. L-65048, Jan. 9, 1987, 147
SCRA 204, 217)

What is the justification for death penalty?

Social defense and exemplarity justify the penalty of death.
has proved himself to be a dangerous enemy of society. The
death penalty imposed upon him is a warning to others. (People vs.
Carillo, 85 Phil.

Death penalty not cruel and unusual.

The death penalty, as such, is not excessive, unjust or cruel,
within the meaning of that word in the Constitution. Punishments
are cruel when they involve torture or lingering death. Cruel punish-
ment implies something inhuman and barbarous, something more
than the mere extinguishment of life. (People vs. Marcos, supra, at
216, citing People vs. SCRA 688)

Rep. Act No. 296 can be given retroactive effect.

Republic Act No. 296, providing that eight justices must concur
in the imposition of death penalty is retroactive.
Rep. Act No. 296 is procedural and not substantive, and that it
is applicable to cases pending in the courts at the time of the approval
of said Act and to crimes committed before its approval. (People vs.
James Young, 83 Phil. 702)

In what crimes is death penalty imposed?

In (1) treason, (2) piracy, (3) qualified piracy, (4) qualified bribery,
(5) parricide, (6) murder, (7) infanticide, (8) kidnapping and serious
illegal detention, (9) robbery with homicide, (10) destructive arson,
rape with homicide, plunder, certain violations of the
Dangerous Drugs Act, and

"Death penalty shall be imposed in all cases in which it

must be imposed under existing law."
The accused, without any provocation, hacked to death three
girls in their house. The court refused to impose the death penalty,
655
 WHEN DEATH PENALTY NOT TO BE IMPOSED Art. 47

believing and stating that "a quick death would seem to be too sweet
a medicine for him and he should be put to death slowly but
and imposed life imprisonment at hard labor, without hope whatso-
ever of any pardon or reprieve.
Is the pronouncement of the court in accordance with law?
No, because as long as the death penalty remains in the statute
books, it is the duty of the judicial officers to respect and apply the
law regardless of their private opinion. (People vs. 88 Phil.
35, 43)

The trial court must require the prosecution to present

evidence, despite plea of guilty when the crime charged is
punished with death.
The fact that there were no stenographic notes taken of the
proceedings and that the lower court made only a brief reference to
the plea of guilty in the decision did not speak well of the trial court's
conduct in so serious a matter involving a human life. The essence of
judicial review in capital offenses is that while society allows violent
retribution for heinous crimes committed against it, it always must
make certain that the blood of the innocent is not spilled, or that the
guilty are not made to suffer more than their just measure of the
punishment and retribution. Thus, a sentence of death is valid only
if it is susceptible of a fair and reasonable examination by this court.
This, however, is impossible if no evidence of guilt was taken after a
plea of guilty. (People vs. Busa, No. L-32047, June 51 SCRA

Death penalty is not imposed in view of certain circum-

stances.
Precisely because of the limited nature of his schooling and of
the effect upon his general outlook, of the unenlightened environment
prevailing in the community of Ilongots to which he belongs, as well
as of the circumstance that the deceased Fontanilla had
been a former municipal mayor, whose act in clearing and working
on a land claimed by the Ilongots was seemingly regarded by these
non-Christians as one of oppression and abuse of authority, the Court
feels that Santos should not be dealt with the severity due to persons
otherwise circumstanced. (People vs. Santos, Nos. Feb.
28, 1967, 19 SCRA 445, 454)
656
 Art. 48 PENALTY FOR COMPLEX CRIMES

Where the penalty of reclusion perpetua is imposed, in lieu

of the death penalty, there is a need to perfect an appeal.
Since the death penalty's imposition is now prohibited, there
is a need to perfect an appeal, if appeal is desired, from a judgment
of conviction for an offense where the penalty imposed is reclusion
perpetua in lieu of the death penalty. (People vs. Salome, G.R. No.
169077, Aug. 31 , 2006)

The records of all cases imposing the penalty of death, reclu-

sion perpetua or life imprisonment shall be forwarded by
the Court of Appeals to the Supreme Court for review.
Pursuant to the ruling of the Supreme Court in People vs. Mateo,
G.R. Nos. 147678-87, July 7, 2004, if the Court of Appeals should af-
firm the penalty of death, reclusion perpetua or life imprisonment, it
could then render judgment imposing the corresponding penalty as
the circumstances so warrant, refrain from entering judgment and
elevate the entire records of the case to the Supreme Court for its
final disposition.

Art. 48 . Penalty for complex crimes. — Wh e n a s i n g l e ac t

c o n s t i t u t e s tw o o r mor e g ra v e o r les s g r a v e f e l o n i e s , o r w h e
n a n offen s e i s a n e c e s s a r y m e a n s for c o m m i t t i n g th e oth er , th
e p e n a l t y for th e mos t s e r i o u s cr i m e sh al l b e i m p o s e d , th e
sam e to be a p p l i e d in it s m a x i m u m p e r i o d . (As amended by
Act No. 4000.)

At least two crimes must be committed.

Art. 48 requires the commission of at least two crimes. But
the two or more grave or less grave felonies must be the result of a
single act, or an offense must be a necessary means for committing
the other.

A complex crime is only one crime.

In complex crime, although two or more crimes are actually
committed, they constitute only one crime in the eyes of the law as
well as in the conscience of the offender. The offender has only one

657
 PENALTY FOR COMPLEX CRIMES Art. 48

criminal intent. Even in the case where an offense is a necessary

means for committing the other, the evil intent of the offender is only
one. (People vs. Hernandez, 99 Phil. 515) Hence, there is only one
penalty imposed for the commission of a complex crime.

Two kinds of complex crimes:

1. When a single act constitutes two or more grave or less
grave felonies.

When an offense is a necessary means for committing the

other.
The first is otherwise known as compound crime. The second is
the complex crime proper.
But ordinarily, both are referred to as complex

"When a single act constitutes two or more grave or less

grave felonies."
Requisites:
1. That only a single act is performed by the offender.
That the single act produces two or more grave felonies,
or (2) one or more grave and one or more less grave felonies,
or (3) two or more less grave felonies.

The single act of throwing a hand grenade producing murder

and multiple attempted murders.
Guillen, by a single act of throwing a highly explosive hand
grenade at President Roxas resulting in the death of another person,
committed several grave felonies, namely:
(1) murder, of which Simeon Varela was the victim; and
multiple attempted of which President Roxas and
four others were the injured parties. (People vs. Guillen,
85 Phil. 307, 318)
Murder is committed when a person is killed by means of ex-
plosion. (Art. 248) The penalty for the crime committed is death, the
maximum of the penalty for murder, which is the graver offense.
The penalty for each of the attempted murder is two degrees lower,

658
Art. 48 PENALTY FOR COMPLEX CRIMES

which is still an afflictive penalty. The attempted murders are grave

felonies.
Placing a time bomb in a plane, which caused it to explode in
mid-air, killing 13 persons therein, constitutes a complex crime of
multiple murder and destruction of property. (People vs. Largo, 99
Phil. 1061-1062

Several shots from Thompson sub-machine gun causing

several deaths, although caused by a single act of
pressing the trigger, are considered several acts.
The accused fired his Thompson sub-machine gun at several
persons. The first burst of shots hit three persons. The accused let
loose a second burst of shots wounding two others.
Held: For each death caused or physical injuries inflicted upon
the victims corresponds a distinct and separate shot fired by the
accused, who thus made himself criminally liable for as many offenses
as those resulting from every single act that produced the same.
(People vs. C.A., 45 O.G. 4542)
Although each burst of shots was caused by one single act of
pressing the trigger of the sub-machine gun, in view of its special
mechanism the person firing it has only to keep pressing the trigger
with his finger and it would fire continually. Hence, it is not the act
of pressing the trigger which should be considered as producing the
several felonies, but the number of bullets which actually produced
them.

No single act in the following cases.

But when the acts are wholly different, not only in themselves,
but also because they are directed against two different persons, as
when one fires his revolver twice in succession, killing one person
and wounding another (U.S. vs. Ferrer, 1 Phil. 56), or when two per-
sons are killed one after the other, by different acts, although these
two killings were the result of a single criminal impulse (People vs.
47 Phil. 1), the different acts must be considered as distinct
crimes.

The eight killings and the attempted murder were perpetrated

by means of different acts. Hence, they cannot be regarded as consti-

659
 PENALTY FOR COMPLEX CRIMES Art. 48

tuting a complex crime under Article 48 of the Revised Penal Code

which refers to cases where "a single act constitutes two or more grave
felonies, or when an offense is a necessary means for committing the
(People vs. Toling, No. L-27097, Jan. 17, 1975, 62 SCRA 17,
34)
The infliction of the four fatal gunshot wounds on Siyang and of
the wound in the palm of the mayor's right hand was not the result
of a single act. The injuries were the consequences of two volleys of
gunshots. Hence, the assaults on Siyang and the mayor cannot be
categorized as a complex crime. (People vs. Nos.
Jan. 21 , 1974, 55 SCRA 153, 176)
Although several ind ep end en t acts were performed by the
accused in firing separate shots from their individual firearms,
it was not possible to determine who among them actually killed
victim Rolando Tugadi. Moreover, there is no evidence that accused-
appellants intended to fire at each and every one of the victims
separately and distinctly from each other. On the contrary, the
evidence clearly shows a single criminal impulse to kill Marlon
Tugad's group as a whole. Thus, one of accused-appellants exclaimed
in frustration after the ambush: "My gosh, we were not able to kill all
of them." Where a conspiracy animates several persons with a single
purpose, their individual acts done in pursuance of that purpose
are looked upon as a single act, the act of execution, giving rise to a
single complex offense. (People vs. Sanidad, G.R. No. 146099, April

"Two or more grave or less grave felonies."

In the case of a compound crime, the offenses involved should
be either both grave or both less grave, or one of them a grave felony
and the other less grave.

Light felonies produced by the same act should be

treated and punished as separate offenses or may be
absorbed by the grave felony.
Several light felonies resulting from one single act — not
complex.
Thus, in a collision between two automobiles driven
in a careless and negligent manner, resulting in the slight

660
 Art. 48 PENALTY FOR COMPLEX CRIMES

physical injuries of the passengers and light felony of

damage to property, there is no complex because the
crime of slight physical injuries, as well as that of damage
to property, is a light felony. (People vs. 50 Phil.
1001, 1002)
In this case, there are as many crimes as there are
persons injured with light physical injuries and as many
penalties as there are light felonies committed, even if they
are produced by a single act of the offender.
2. When the crime is committed by force or violence, slight
physical injuries are absorbed.
a. Where the person in authority or his agent, who was
attacked while in the performance of his duty, suf-
fered slight physical injuries only, the crime of slight
physical injuries is absorbed in the crime of direct
assault. (Art. 148) This is the ruling in the cases of
People vs. Benitez, 73 Phil. People vs.
57 Phil. 614.

b. When in the commission of rape, slight physical

injuries are inflicted on the girl's genital organ, the
crime of slight physical injuries is absorbed in the
crime of rape. (People vs. Apiado, 53 Phil. 325, 327)
The reason for the rulings is that the slight
physical injuries are the necessary consequence of
the force or violence inherent in the crimes of direct
assault and rape.

Examples of compound crime:

(a) The single act of in firing a shot, the same bullet
causing the death of two persons who were standing on the
same line of the direction of the bullet. (People vs. Pama,
C.A., 44 O.G. 3339)
Homicide, which is the unlawful killing of a person,
is punishable by reclusion temporal, an afflictive penalty.
Hence, in killing two persons, Pama committed two homi-
cides, which are grave felonies. (See Art. 9) Since they
were the result of one single act of firing a shot, a complex
crime was

661
 PENALTY FOR COMPLEX CRIMES Art. 48

(b) The act of raping a girl, causing her physical injuries which
required medical attention for about twenty days. (U.S.
vs. 34 Phil. 690) This is a complex crime of rape
with less serious physical injuries. (Arts. 266-A and 265
in relation to Art. 48) The Supreme Court considered the
crime of less serious physical injuries (the laceration of the
genital parts which required medical attendance for about
twenty days) as necessary to the commission of the crime
of rape.

With due respect, i t is believed that there being

only one act of forcible sexual intercourse which pro-
duced the two crimes, the accused committed a com-
pound crime.
Less serious physical injuries is a less grave felony,
because it is punishable by arresto mayor, a correctional
penalty. (See Art. 9)
The Court of Appeals has a different ruling:
The less serious physical injuries inflicted on that
complainant cannot be made to complex the offense of
attempted rape, because these injuries were the result of
the force exerted by the appellant to subdue her and force
her to submit to his vile desires. (People vs. De la Cruz,
C.A., 61 O.G. 5384)
(c) After a justice of the peace had read to the accused the
sen tence of conviction, the latter took a dagger and
stabbed said justice of the peace in the back, the wound
incapacitating him for ordinary work for more than 30
days. This is a complex crime of direct assault with serious
physical injuries, the single act of stabbing the justice of
the peace constituting the two less grave felonies of direct
assault and serious physical injuries. (U.S. vs. Montiel, 9
Phil. 162, 167-168)
(d) Where the victim was killed while discharging his duty as
barangay captain to protect life and property and enforce
law and order in his barrio, the crime is a complex crime
of homicide with assault upon a person in authority. (G.R.
No. 57415, Dec. 15, 1989, 180 SCRA 102, 107)

661
Art. 48 PENALTY FOR COMPLEX CRIMES

(e) Where the stabbing and killing of the victim which caused
likewise the death of the fetus arose from the single
criminal intent of killing the victim, as shown by accused's
pursuit of the victim after she was able to escape, the crime
committed is the complex crime of murder with abortion.
(People vs. Lopez, G.R. No. 136861, Nov. 15, 2000)

Rape with homicide is a special complex crime not

covered by Art. 48.
When by reason or on the occasion of the rape, a homicide is
committed, or when the rape is frustrated or attempted and a homicide
is committed by reason or on the occasion thereof, Art. 266-B shall
apply.
Therefore, the ruling in the case of People vs. Matela, 58 Phil.
that raping a girl and killing her afterwards constitute two
distinct offenses which must be punished separately, is no longer
controlling.
Likewise, the ruling in the case of People vs. Acosta, 60 Phil.
158, that raping a girl transmitting to her a venereal disease which
caused her death or that killing the victim of rape when she tried to
shout, People vs. Yu, 1 SCRA 199, is a complex crime of rape with
homicide under Art. 48, is no longer controlling.
Under Art. 266-B, the facts in both cases would constitute a
special complex crime of rape with homicide punished with death.

When in obedience to an order several accused simultane-

ously shot many persons, without evidence how many
each killed, there is only a single offense, there being a
single criminal impulse.
Lawas ordered the Moros to be tied in order to be brought to
another place. When one of the guards approached Datu Lomangcolob,
the latter refused, thereupon, Lawas fired his revolver at him and or-
dered the guards to fire; the guards following instructions fired at the
Moros including those who tried to escape. After a short time, Lawas
ordered his men to "cease fire" and the firing stopped. The evidence
positively shows that the killing was the result of a single impulse,
which was induced by the order of the leader to fire, and continued
with the intention to comply therewith, as the firing stopped as soon

662
 PENALTY FOR COMPLEX CRIMES Art. 48

as the leader gave the order to that effect. There was no intent on
the part of the appellants to fire at each and everyone of the victims
separately and distinctly from each other. The Supreme Court held
"that if the act or acts complained of resulted from a single criminal
impulse, it constitutes a single offense." The Court continued by stat-
ing, "it may also be added that there is absolutely no evidence as to
the number of persons killed by each and every one of the appellants,
so even if we were induced to hold each appellant responsible for each
and every death caused by him, it is impossible to carry that desire
into effect as it is impossible to ascertain the individual deaths caused
by each and everyone. We are, therefore, forced to find the appellants
guilty of only one offense of multiple homicide for which the penalty
to be imposed should be in the maximum period." (People vs. Lawas,
G.R. June 30, 1955, 97 Phil. 975

The ruling in the Lawas case applies only when there is no evidence
at all to show the number of persons killed by each of several defend-
ants.

The ruling in the Lawas case that each of the appellants was
guilty only of the complex crime of homicide, notwithstanding the
fact that about fifty persons were killed by the appellants who fired
at them with their guns a number of shots, because the killings were
the result of a single impulse, does not apply when the appellant
alone killed all the six victims, one after another, with one shot each.
(People vs. 109 Phil. 607, 612)

People vs. Abella, No. L-32205, Aug. 31 , 1979, 93 SCRA 25,

76 O.G. 1091, sixteen members of the OXO gang, who were prison-
ers occupying three small cells on one side of the jailhouse, were able
to break into the big cell opposite theirs and, in that big cell, killed
fourteen inmates who were members of the Sigue-Sigue gang.
The fiscal and the trial court treated the fourteen killings and
injuries inflicted on the three other victims as a complex crime of
multiple murder and multiple frustrated murder, the court imposing
one penalty of death on all of the accused.
In sustaining the trial court, the Supreme Court said:
"In the De Los Santos case, (supra), which involved two riots
on two successive days in the national penitentiary wherein nine
prisoners were killed (five on the first day and four on the second

663
Art. 48 PENALTY FOR COMPLEX CRIMES

day), the fourteen members of the gang who took part

in the killing were convicted of multiple murder (a complex crime)
and not of nine separate x x x."
"The ruling in the De Los Santos case is predicated on the theory
that for the attainment of a single purpose (underscoring
supplied) which constitutes an offense, various acts are executed,
such acts must be considered only as one a complex crime
(People vs. 66 Phil. 682, 687; See also People vs. Cu Unjieng,
61 Phil. 236, 302 and 906) where the falsification of one hundred
twenty eight warehouse receipts during the period from November
30 to July 6, 1931, which enabled the accused to swindle the bank
in the sum of one million four hundred thousand pesos was treated
as only one complex crime of estafa through multiple falsification of
mercantile documents and only one penalty was imposed." (See also
People vs. Garcia, No. March 13, 1980, 96 SCRA 497, 504,
which applied the same "same motive" rule.)

Note: The "single-criminal-impulse," "same motive" or the

"single-purpose" theory has no legal basis, for Article
48 speaks of "a single act." However, the theory is ac-
ceptable when it is not certain who among the accused
killed or injured each of the several victims.

When it is within the scope of possibility that the two

victims were killed by one and the same missile.
When there is no evidence as to how many wounds the victims
received and it is within the scope of possibility that they were killed
by one and the same missile as they were riding astride the same
carabao, and they were shot by the accused in that position, in the
absence of a showing that the victims died from more than one bullet,
the crime should be classified as a complex crime of double murder.
(People vs. G.R. No. L-3098, March 5, 1951)
Ruling in the Bersamin case is applicable only when there is no
evidence as to how many wounds the victims received and there is
possibility that they were killed by one and the same missile.
Thus, when the two victims each received more than one bullet
wound, they were not close to each other when fired at, and their
bodies were found in different places, the ruling is not applicable. In

664
 PENALTY FOR COMPLEX CRIMES Art. 48

such case, the presumption is that the victims were killed by different
shots, and, therefore, the accused are liable for two separate murders.
(People vs. Basarain, G.R. No. L-6690, May 24, 1955)

There is no complex crime of arson with homicide under

Art. 48.
The ruling in the case of U.S. vs. Burns, 41 Phil. 418, that under
an information charging the accused with setting fire to an automobile
in the basement of an inhabited house, whereby said house was
destroyed and one of its inmates burned to death, the accused is guilty
of a complex crime of arson with homicide, is no longer applicable to
such case, Art. 320 of the Revised Penal Code, as amended by Rep.
Act No. 7659, having provided one penalty therefor.

Applicable to crimes through negligence.

Thus, a municipal mayor who accidentally discharged his
revolver during a school program, killing a girl and injuring a boy
requiring medical attendance for more than 30 days, was found guilty
of a complex crime of homicide with less serious physical injuries
through reckless imprudence. (People vs. Castro, 40 O.G., Supp. 12,
83)
The reason for this ruling is that in view of the definition of
felonies in Article 3 of the Code, that is, "Acts and omissions punishable
by committed either "by means deceit or "by means of
fault it is clear that Article 48 which speaks of "felonies" is
applicable to violations under Article 365 which defines and penalizes
criminal negligence, a felony by means of fault (culpa).
A man while pouring gasoline in the tank of his passenger bus
in a garage used a candle to light the place. The gasoline caught
and the house was burned. His mother-in-law, who jumped from a
window during the fire, died due to burns and injuries and another
person suffered serious physical injuries.
Held: The crimes of arson, homicide, serious physical injuries,
and damage to property constitute a complex crime within the mean-
ing of Art. 48. (People vs. Pacson, C.A., 46 O.G. 2165)
The accused, who drove a cargo truck at a fast rate without
sounding its horn and without lights in the evening, caused his

665
Art. 48 PENALTY FOR COMPLEX CRIMES

truck to collide with a bicycle which was thrown to a group of pedes-

trians. Two of them died and several other persons were seriously
injured.
Held: The two deaths and several serious physical injuries re-
sulted from his single act of reckless driving. Hence, only one penalty
should be imposed upon him. (People vs. Villamora, C.A., 40 O.G.
768)

Theft of and illegal possession of same do

not form a complex crime — they are two distinct crimes.
While in stealing a firearm the accused must necessarily come
into possession thereof, the crime of illegal possession of firearm
is not committed by mere transient possession of the weapon. It
requires something more: there must be not only intention to own
but also intent to use (People vs. Estoista, 93 Phil. 647), which is
not necessarily the case in every theft of firearm. Thus, stealing a
firearm with intent not to use but to render the owner defenseless,
would not justify a charge of illegal possession of the firearm. (People
vs. 98 Phil. 413 , 414)
The other reason is that Art. 48 speaks of two or more grave or
less grave felonies resulting from a single act, which excludes crimes
punishable by special laws, like the law punishing illegal possession
of firearms.

"When an offense is a necessary means for the

Although the law uses the term "offenses," the Supreme Court,
in the case of People vs. Araneta, 48 Phil. 650, held that this kind of
complex crime does not exist when the two crimes are punished under
different statutes.

Requisites:
That at least two offenses are committed.
2. That one or some of the offenses must be necessary to com-
mit the other.
That both or all the offenses must be punished under the
same statute.

666
 PENALTY FOR COMPLEX CRIMES Art. 48

At least two offenses must be committed.

Examples:
(a) Falsification of a public document by an accountable
officer (altering the duplicate of the cedulas already
issued to other persons by erasing the names originally
written thereon and writing in their places new names)
is an offense which is necessary to commit malversation
(collecting from each of them and misappropriating
the amount), which is another offense. (People vs. Barbas,
60 Phil. 241 , 243)
The falsification of the cedula certificate, which is a
crime under Art. 171, was necessary to commit the crime
of malversation under Art. 217, because the accused had
to falsify the duplicate of the cedulas to obtain from the
taxpayers the money which he later misappropriated.

(b) Simple seduction by means of usurpation of official func-

tions. (U.S. vs. Hernandez, 29 Phil. 109)

U.S. Hernandez
(29 Phil. 109)

Fact: Accused Hernandez, in order to seduce a girl, 15 years old,

had a talk with accused Bautista. Between them they concocted a plan
and then accused Hernandez proposed marriage to the girl. She agreed.
In a house in accused Bautista, under the name of
de Castro and pretending to be a Protestant minister, solemnized a
fictitious marriage between the girl and accused Hernandez. There-
after, they lived as a married couple. Later, accused Hernandez and
Bautista were prosecuted for seduction through usurpation of public

Held: Without legal authority, accused Bautista performed an act

properly pertaining to a person in authority by assuming the
character of a minister of a religious sect in order to make the girl
believe that she was legally married to accused Hernandez who had
the intention to seduce her. The girl would not have been seduced were
it not for the act of accused Bautista.
Note: The crime of usurpation of official function (Art. 177) was
a necessary means for committing the crime of simple seduction. (Art.
338)

667
Art. 48 PENALTY FOR COMPLEX CRIMES

Abduction as a necessary means for committing rape.

A girl, 19 years of age, who had worked in the rice fields in
Calamba, Laguna, was on her way home in the afternoon. When in
an uninhabited place, the two accused forcibly abducted her against
her strong protest and resistance, took her to the woods in Silang,
and other places where she was raped by one of the accused
while her hands were being held by the other. The crime of forcible
abduction (taking a woman against her will with lewd designs — Art.
342) was a necessary means for committing the crime of rape (having
sexual intercourse with a woman by using force, etc. — Art. 266-A).
(See People vs. Manguiat, 51 Phil. 406)

The phrase "necessary means" does not mean "indispensa-

ble means."
The phrase "necessary means" used in Art. 48 ha s been
interpreted not to mean indispensable means, because if it did, then
the offense as a "necessary means" to commit another would be an
indispensable element of the latter and would be an ingredient
thereof. The phrase merely signified that, for instance, a crime
such as simple estafa can be and ordinarily is committed in the
manner defined in the Penal Code; but if the "estafador" resorts
to or employs falsification, merely to facilitate and insure his
committing estafa, then he is guilty of the complex crime of estafa
through falsification. (Di ssen ti ng Opinion, People vs. Hernandez,
99 Phil. 515 , 557)

In complex crime, when the offender executes various acts,

he must have a single
The accused received 17 money orders with a letter, all in one
envelope, addressed to the offended party. The accused presented
them to the post office for cashing on one occasion, after having
falsified the signature of the remitter on each and every one of the
17 money orders.

Held: In all the acts performed by the accused, there was only
one criminal intent. To commit estafa, the accused had to commit 17
These falsifications were necessary means to commit
estafa. (People vs. Gallardo, C.A., 52 O.G. 3103)
The crime committed is only one complex crime of estafa

668
 PENALTY FOR COMPLEX CRIMES Art. 48

through multiple falsifications, and not seventeen separate

estafas and seventeen separate falsifications.
But if a person falsified 27 vouchers, not to commit estafa or
malversation, he is liable for 27 falsifications, because the various
acts of falsification were not executed for the attainment of a single
purpose. (See Gonzales vs. City Fiscal, CA-G.R. No. March
20, 1957)
In this case, one or more offenses are not necessary means for
committing the

When in the definition of a felony one offense is a means to com-

mit the other, there is no complex crime.
In murder where the killing of a person is qualified by the
circumstance that it was committed by means of fire or by means of
explosion (Art. 248, par. 3) which in themselves are felonies defined
and penalized in Art. 321 and Art. 324, as arson and crimes involv-
ing destruction, respectively, there is no complex crime. The crime
is murder, plain and simple.

Subsequent acts of intercourse, after forcible abduction with

rape, are separate acts of rape.
Where the complaining witness was forcibly abducted by the
four accused and violated on board a truck by one of them with
the assistance of the three others, and after reaching a house in
the evening, the four of them alternately ravished her inside the
house three times each and one each the following morning, there
was only one forcible abduction with rape which was the one com-
mitted in the truck, and the subsequent acts of intercourse in the
house against her will are separate acts of rape. The reason for
the ruling is that when the first act of rape was committed in the
truck, the crime of forcible abduction was already consummated so
that each of the succeeding rapes committed in the house cannot
legally be considered as still connected with the abduction. The
crimes committed are one (1) forcible abduction with rape and
sixteen (16) separate rapes. (People vs. Bohos, No. L-40995, June
25, 1980, 98 SCRA 353, 364)

Even while the first act of rape was being performed, the
crime of forcible abduction was already consummated, so that each

669
Art. 48 PENALTY FOR COMPLEX CRIMES

of the three succeeding rapes cannot be with forcible

abduction. (People vs. Jose, No. L-28232, Feb. 6, 1971 , 37 SCRA
450, 475)

No complex crime when trespass to dwelling is a direct

means to commit a grave offense.
When trespass to dwelling (Art. 280) is a direct means to commit
a graver offense, like rape, homicide or murder, there is no complex
crime of trespass to dwelling with rape, homicide or murder. The tres-
pass to dwelling will be considered as the aggravating circumstance
of unlawful entry under par. 18, or of breaking a part of the dwelling
under par. 19, of Art. 14. (People vs. Abedosa, 53 Phil. 788, 791)
Note: Trespass to dwelling is committed when a private person
shall enter the dwelling of another against the latter's will.

No complex crime, when one offense is committed to conceal

the other.
But when one of the offenses was committed for the purpose of
concealing the commission of the other, there is no complex crime.

Examples:
(a) After committing homicide, the accused, in order to conceal
the crime, set fire to the house where it had been perpe-
trated. (People vs. Bersabal, 48 Phil. 439, 442)

Note: Setting fire to the house is arson. (Art. But in

this case, neither homicide nor arson was necessary
to commit the other.

(b) A postmaster received from the offended party to be

transmitted as a telegraph money order to a third person.
He failed to send the money and when the complainant
demanded its return, he returned only having
already misappropriated the difference of He then
forged the signature of the complainant to a receipt made
by him (the accused), reciting therein that said complainant
had already received from him the entire amount.
Held: The amount appropriated to himself was in the
possession and at the disposal of the accused and he could

670
 PENALTY FOR COMPLEX CRIMES Art. 48

have appropriated it to himself without the necessity of

the falsified document. Two crimes were committed. The
falsification was a means to conceal, not to commit, the
malversation. (U.S. vs. Geta, 43 Phil. 1009, 1013)

When the offender had in his possession the funds which

he misappropriated, the of a public or docu-
ment involving said funds is a separate offense.
The accused, a municipal treasurer of Batac, Ilocos Norte, misap-
propriated belonging to the public funds. He made it appear
in the payroll that several municipal teachers of Batac received their
salaries when in fact they did not receive the sums indicated in the
payroll as received by them. It was held that the accused was guilty
of malversation and falsification, two separate crimes, because the
falsification was not a necessary means for the commission of the
malversation, but was committed only to conceal the malversation.
(People vs. Cid, 66 Phil. 354, 363)

The municipal president, municipal treasurer, and a private

individual signed two official payrolls on April 30 for and
on May 2 for where it was made to appear that certain per-
sons worked as laborers in street projects, when in fact no work was
done and those persons were not entitled to pay. The three spent the
money for their own personal benefit. It was held that the falsifica-
tion of the payrolls were not necessary means for the commission of
malversation. (Regis vs. People, 67 Phil. 43 , 47)
The municipal treasurer having in his possession the funds, the
same could be misappropriated by him and his co-accused without
the necessity of falsifying any document. Hence, the falsification was
not a necessary means for committing the malversation. The falsifi-
cation of the payrolls was committed to conceal the malversation, in
the sense that it was made to appear that the amounts were lawfully
disbursed.

But when the offender had to falsify a public or official document to

obtain possession the funds which he misappropriated, the falsifica-
tion is a necessary means to commit the malversation.
Thus, when the special deputy of the provincial treasurer
collected from two individuals the amount of each in payment

671
Art. 48 PENALTY FOR COMPLEX CRIMES

of their cedula tax, which he was able to do by altering the duplicates

of the cedulas, which he had already issued to other persons, and
issuing the altered duplicates to the two individuals, the falsification
of the duplicates was necessary to obtain the from the two
individuals and was the means to commit the malversation by
misappropriating the amount. (People vs. Barbas, 60 Phil. 241 ,
244)

No complex crime where one of the offense is penalized

by a special law.
Although the evidence shows that a crime has been committed
for the express purpose of committing another, as when a public of-
ficer misappropriates public funds for which he is accountable through
falsification of public document, yet both crimes should be punished
separately where it appears that they are punished under different
statutes, i.e., the Administrative Code and the Penal Code. (People
vs. 48 Phil. 650, 654)

Note: Before the Revised Penal Code took effect, the crime of
malversation was punished under the Administrative Code.

Illegal possession of firearm is not a necessary means to

commit homicide.
The accused was previously convicted of homicide for the perpe-
tration of which he used a .30 caliber rifle. Later, he was prosecuted
for illegal possession of said firearm.
Held: The accused committed two different acts with two sepa-
rate criminal intents, to wit, the desire to take unlawfully the life
of a person, and the willful violation of the law which prohibits the
possession of a firearm without the required permit. (People vs. Alger,
92 Phil. 227, 229-230)

Note: The other reason is that homicide and illegal possession

of firearm are punished under different statutes.

Illegal possession of when considered a special

gravating circumstance.
With the passage of Rep. Act No. 8294 on June 6, 1997, the
use of an unlicensed firearm in murder or homicide is now consid-

672
 PENALTY FOR COMPLEX CRIMES Art. 48

ered, not as a separate crime, but merely a special aggravating

circumstance. (People vs. Castillo, G.R. Nos. February
15, 2000)

Illegal possession of firearm absorbed in rebellion.

People vs. Rodriguez
(G.R. April 25, 1960)

Facts: The accused was charged with illegal possession of

and ammunition. The accused filed a motion to quash on
the ground that the crime with which he was charged was already
alleged as a component ingredient of the crime of rebellion with
which he was already charged in the Court of First Instance of
Manila.
Held: This gun was introduced by the prosecution as evidence
in the case of rebellion. On October 24, 1951, the case for rebellion
was filed in the Court of First Instance. On the other hand, the in-
formation in the present case was filed on October 30, 1956, which
involves the charge of illegal possession of the same firearm and
same ammunition. Considering that "any or all of the acts described
in Art. 135, when committed as a means to or in furtherance of the
subversive ends described in Art. 134, become absorbed in the crime
of rebellion, and can not be regarded or penalized as distinct crimes
in themselves x x x and cannot be considered as giving ris e to a
separate crime that, under Art. 48 of the Code, would constitute a
complex one with that of rebellion (People vs. Geronimo, L-8936, Oct.
23, 1956), the conclusion is inescapable that the crime with which
the accused is charged in the present case is already absorbed in
the rebellion case and so to press it further now would place him
in double jeopardy. While it is true that in the crime of rebellion,
there is no allegation that the firearm in question is one of those
used in carrying on the rebellion and that the same was borne by
the accused without a license, the same would not make the present
charge different from the one included in the crime of rebellion, for it
appears from the record that one of the firearms used in furtherance
thereof is the same pistol with which the accused is now charged.
In fact, that pistol was presented in the rebellion case as evidence.
Nor is the fact that there is no allegation in the rebellion case that
the carrying of the firearm by the accused was without license of
any consequence, for it can be safely assumed that it was so, not
only because the accused was a dissident but because the firearm
was confiscated from his possession."

673
Art. 48 PENALTY FOR COMPLEX CRIMES

When two or more crimes are committed but not by a

single act, or (2) one is not a necessary means for
committing the other, there is no complex crime.
The accused compelled the pilot to direct the airplane from Laoag
to instead of Aparri, and for not complying with such illegal
demand, the accused shot him to death.
Held: The accused committed two separate crimes of frustrated
coercion (Arts. 6 and 286) and murder (Art. 248). They do not con-
stitute a complex crime of grave coercion with murder, because the
accused could have killed the pilot, without necessity of compelling
him to change the route of the airplane; the coercion was not neces-
sary for the commission of murder. Neither was murder necessary to
commit coercion. The accused executed two distinct acts, and not only
one. Compelling the pilot to change the route of the airplane is one
act. Shooting him when he did not comply with that order is another
act. (People vs. Cho 95 Phil. 475, 478)

There is no complex crime of rebellion with murder, arson,

robbery, or other common crimes.
Murder, arson and robbery are mere ingredients of the crime of
rebellion, as means "necessary" for the perpetration of the offense.
vs. G.R. No. 92163 , June 5, 1990, 186 SCRA 217,
229) Such common offenses are absorbed or inherent in the crime
of rebellion. (People vs. Hernandez, 99 Phil. 515) But a rebel who,
for some independent or personal motives, commits murder or other
common offenses in addition to rebellion, may be prosecuted for and
convicted of such common offenses. (People vs. Geronimo, 100 Phil.
90, 99)

When two crimes produced by a single act are respectively

within the exclusive jurisdiction of two courts of different
jurisdiction, the court of higher jurisdiction shall try the
complex crime.
Through reckless imprudence committed in one single act, the
accused caused damage to property, punishable by a fine which only
the Court of First Instance can impose and less serious physical
injuries which ordinarily is within the exclusive jurisdiction of the
municipal court.

674
 PENALTY FOR COMPLEX CRIMES Art. 48

Held: The Court of First Instance should try the case charging
a complex crime. Since both crimes were the result of a single act,
the information cannot be split into two; one for physical injuries,
and another for damage to property. (Angeles vs. Jose, 96 Phil.
151)
An accused should not be harassed with various prosecutions
based on the same act by splitting the same into various charges.
(People vs. Lizardo, No. Dec. SCRA
reiterating People vs. No. Jan. 30, 1962, 4 SCRA
95)

People vs.
(G.R. No. May 24, 1966)

Facts: Defendant was accused of the crime of damage to property

with multiple physical injuries, thru reckless imprudence. The infor-
mation alleges that, thru reckless negligence of the defendant, the bus
driven by him hit another bus causing upon some of its passengers,
serious physical injuries and upon still others slight physical injuries,
in addition to damage to property.
Held: The information does not purport to complex the offense of
slight physical injuries thru reckless negligence with that of damage
to property and serious and less serious physical injuries thru reckless
imprudence. It is merely alleged that, thru reckless negligence of the
defendant, the bus driven by him hit another bus causing upon some
of its passengers, serious physical injuries, upon others less serious
physical injuries and upon still others slight physical injuries, in ad-
dition to damage to property.
From the viewpoint both of trial practice and justice, it is
doubtful whether the prosecution should split the action against the
defendant, by filing against him several informations, one for damage
to property and serious and less serious physical injuries, thru reck-
less imprudence, before the court of first instance, and another for
slight physical injuries thru reckless negligence, before the justice of
the peace or municipal court. Such splitting of the action would work
unnecessary inconvenience to the administration of justice in general
and to the accused in particular, for it would require the presentation
of substantially the same evidence before two courts. In the
event of conviction in the municipal court and appeal to the court of
first instance, said evidence would still have to be introduced once
more in the latter court.

675
Art. 48 PENALTY FOR COMPLEX CRIMES

The (now, RTC) of Manila retained jurisdiction in a

charge of abduction with rape, although abduction, which
was com- menced in Manila, was not proven, and the rape
which was committed in Cavite, was the only matter
proved.
Although the forcible abduction, which was supposedly com-
menced in Manila, was not proven, and although the rape, which
was proven, was actually committed in Cavite, still the CFI of Manila
had jurisdiction to convict the accused of rape. The complex crime
of forcible abduction with rape was charged in the complaint on the
basis of which the case was tried. (People vs. No. L-36435, Dec.
20, 1977, 80 SCRA 589, 598)

Art. 48 is intended to favor the culprit.

In directing that the penalty for the graver offense shall be im-
posed in its maximum period, Art. 48 could have had no other purpose
than to prescribe a penalty lower than the aggregate of the penalties
for each offense, if imposed separately. The reason for this benevolent
spirit of Art. 48 is readily discernible. When two or more crimes are
the result of a single act, the offender is deemed less perverse than
when he commits said crimes through separate and distinct acts.
(People vs. Hernandez, 99 Phil. 515, 542-543)
Note: If a person fired a shot and killed two persons with the
same shot, were it not for Art. 48, he would be sentenced to reclusion
temporal for each homicide. But under Art. 48, he shall be sentenced
to the maximum period of one reclusion temporal only. Reclusion
temporal has a duration of 12 years and 1 day to 20 years.

The penalty for complex crimethe penalty for the most

serious crime, the same to be applied in its maximum
period.
Thus, in the complex crime of direct assault with homicide, the
penalty for homicide, being the more serious crime, shall be imposed
and the penalty is to be applied in its maximum period. The penalty
for direct assault is at most correccional in its medium and
maximum periods; whereas, the penalty for homicide is reclusion
temporal.

The penalty for the complex crime of homicide with assault upon
676
a person in authority is the maximum period of the penalty for the

677
 PENALTY FOR COMPLEX CRIMES Art. 48

more serious crime — That penalty is the maximum period

reclusion temporal. (People vs. G.R. No. 57415, Dec. 15,
SCRA 102, 109-110)

If the different crimes resulting from one single act are punished
with the same penalty, the penalty for any one of them shall be im-
posed, the same to be applied in the maximum period.

The same rule shall be observed when an offense is a necessary

means for committing the other.
A complex crime of the second form may be committed by two
persons, as in seduction through usurpation of official functions
where one of the accused committed usurpation of official
by simulating the performance of a marriage ceremony without legal
right between the victim and his co-accused who thereafter seduced
the victim. Both accused, being in conspiracy, were sentenced to the
maximum period of the penalty for usurpation of official functions, an
offense more serious than the crime of seduction. (U.S. vs. Hernandez,
29 Phil. 109, 113-114)

But when one of the offenses, as a means to commit the other, was
committed by one the accused by reckless imprudence, that accused
who committed the offense by reckless imprudence is liable for his act
only.
Ther e i s no q u e s t i o n tha t a p p e l l a n t c oo p e ra te d in the
commission of the complex offense of estafa through falsification
by reckless imprudence by acts without which it could not have
been accomp l i sh ed , and this being a fact, there would be no
reason to exculpate him from liability. Even assu mi n g that he
had no intention to defraud the offended party if his co-defendants
su cceed ed in a t t a i n i n g th e p u rp ose sou gh t by th e culp ri ts,
appellant's participation together with the participation of his
co-defendants in the commission of the offense completed all the
elements necessary for the perpetration of the complex crime of
estafa through falsification of commercial document. (Article 172,
Revised Penal Code) Anyway and for the purpose of the penalty
that was actually imposed upon appellant, it is immaterial that he
be considered only guilty of falsification of a commercial document
through reckless negligence, because the penalty for the crime of
falsification of a commercial document under Article No. of

678
Art. 48 PENALTY FOR COMPLEX CRIMES

the Revised Penal Code, is prision correccional in its medium and

maximum periods and a fine of not more than which
under the provisions of Articles 25 and 26 of the same Code is a
correctional penalty. Consequently, if in the cases at bar the crimes
of falsification were due to reckless imprudence, the corresponding
penalty would be arresto mayor in its min imum and mediu m
periods (Article 365 , opening paragraph, of the Revised Penal
Code), which comprehends the penalty imposed by the Court of
Appeals upon appellant. (Samson vs. Court of Appeals, 103 Phil.
277, 282-283)

When the homicide, physical injuries, and the burning of a house are
the result of one single act of negligence, there is only one penalty, but
there are three civil liabilities.
In the case People vs. Pacson, C.A. 46 O.G. 2165, Roque Pacson
and Francisco, who poured gasoline from one container to
another near a lighted candle, causing the burning of the house of
Aurelio de Leon, valued at the injury of Romualdo de Leon,
who was confined in the hospital at the cost of and the death
of Paula were sentenced each to suffer from four (4) months
of arresto mayor to two (2) years and 4 (four) months of prision cor-
reccional, to indemnify jointly and severally the heirs of Paula Elhino
in the sum of Romualdo de Leon in the sum of and
Aurelio de Leon in the sum of

When the penalty for one of the crimes resulting from a single act is
beyond the jurisdiction of the municipal court, there should be ad-
ditional penalty for the other.

The third paragraph of Article 365 reads as follows:

the execution of the act covered by this article shall have
only resulted in damage to the property of another, the offender shall
be punished by a fine ranging from an amount equal to the value of
said damage to three times such value, but which shall in no case be
less than 25 pesos."

The above-quoted provision simply means that if there is only

damage to property, the amount fixed therein shall be imposed, but if
there are also physical injuries, there should be an additional penalty
for the latter. (Angeles vs. Jose, 96 Phil. 151, 152)

679
 PENALTY FOR COMPLEX CRIMES Art. 48

When two felonies constituting a complex crime are

punish- able by imprisonment and fine, respectively, only
the penalty of imprisonment should be imposed.
When a single act constitutes two grave or less grave felonies,
or one grave and another less grave, and the penalty for one is
imprisonment while that for the other is fine, the severity of the
penalty for the more serious crime should not be judged by the
classification of each of the penalties involved, but by the nature of
the penalties. (People vs. Yongco, CA-G.R. No. January
26, 1977)
Even if the fine for damage to property through reckless im-
prudence is an afflictive penalty, and the penalty for
physical injuries resulting from the same act is only four (4) months
of arresto mayor, a correctional penalty, the latter penalty should be
imposed.
This opinion is based on the following observation:
In the order of severity of the penalties, arresto mayor and ar-
resto are considered more severe than (Article 70,
and arresto menor is higher in degree than destierro (Article
71 , R.P.C), even if both arresto mayor and destierro are classified as
correctional penalties, and arresto menor is only a light penalty.
On the other hand, fine is not included in the list of penalties
in the order of severity, and it is the last in the graduated scales in
Article 71 of the Revised Penal Code.
The ruling in Angeles vs. 96 Phil. that if damage
to property and physical injuries resulted from a single act of the
defendant there should be an additional penalty for the latter, is in
disregard of Article 48 of the Revised Penal Code which provides that
only one penalty should be imposed for a complex crime.
Generally, the penalty for complex crime is intended to favor
the offender. (People vs. Hernandez, 99 Phil. 515)
In People vs. Pacson, 46 O.G. 2165, the Court of Appeals held
that the penalty for a complex crime, causing the burning of a house
valued at and the death of one of the inmates of the
house through reckless imprudence, is from four (4) months of arresto
mayor to two (2) years and four (4) months of prision correccional,

680
Art. 48 PENALTY FOR COMPLEX CRIMES

to indemnify the owner of the house and the heirs of the deceased in
the amounts stated, without fine.

Art. 48 applies only to cases where the Code does not

provide a definite specific penalty for a complex crime.
The accused inflicted less serious physical injuries on the
municipal mayor in the cockpit where at the time there were many
people present. There was a manifest intent to insult the mayor and
of adding ignominy to the offense.
The prosecution charged the accused with a complex crime of
serious slander by deed with less serious physical injuries, because
Art. 359 considers as slander by deed any act "which shall cast dis-
honor, discredit, or contempt upon another person," and since said
act resulted in the infliction of less serious physical injuries, it is also
covered by Art. 265.
Held: The act cannot come under Art. 48 for the simple reason
that in this particular case, that act is specifically covered by para-
graph 2 of Art. 265.
Under Art. 265, par. 2 of the Revised Penal Code, whenever
an act has been committed which inflicts upon a person less serious
physical injuries with the manifest intent to insult or offend him or
under circumstances adding ignominy to the offense, the offender
should be prosecuted under that article and, if convicted, should be
sentenced to the penalty therein prescribed.
The acts complained of cannot constitute a complex crime of
slander by deed with less serious physical injuries, because complex
crime exists only in cases where the Code has no specific provision
penalizing the same with defined specific penalty. (People vs. Lasala,
G.R. No. Jan. 4 SCRA 61 , 62, 64-65)

One information should be filed when a complex crime is

Thus, even if several persons were killed, only one information

should be filed if the victims were killed by a single act.
But if four crimes of murder and a frustrated murder resulted
from the firing of several shots at five victims, the crimes are not
complex. Five informations should be filed. (People vs. Pineda, G.R.

681
 PENALTY FOR COMPLEX CRIMES Art. 48

No. L-26222, July 20 SCRA 748, 750, 754) In case of convic-

tion, five penalties shall be imposed.
The same ruling applies when one of the offenses committed is
not a necessary means for committing the other, as when one offense is
committed to conceal the other. In that case, two informations will have
to be filed and in case of conviction, two penalties shall be imposed.

When a complex crime is charged and one offense is not

proven, the accused can be convicted of the other.
When a complex crime is charged and the evidence fails to sup-
port the charge as to one of the component offenses, the defendant
can be convicted of the other. (People vs. No. L-47500,
April 29, 1987, 149 SCRA 292, 300- 301 , 304)

Art. 48 does not apply when the law provides one single
penalty for special complex crimes.
Thus, in robbery with homicide (Art. 294, par. 1), robbery with
rape (Art. 294, par. 2), or kidnapping with serious physical injuries
(Art. 267, par. 3), or kidnapping with murder or homicide (Art. 267,
last or rape with homicide (Art. 335), Art. 48 does not apply
because the Revised Penal Code provides for one single penalty for
each of those special complex crimes.

Special Complex Crime of Kidnapping with Murder or Homi-

cide.
Prior to 31 December the date of effectivity of No.
7659, the rule was that where the kidnapped victim was subsequently
killed by his abductor, the crime committed would either be a complex
crime of kidnapping with murder under Art. 48 of the Revised Penal
Code, or two (2) separate crimes of kidnapping, and murder. Thus,
where the accused kidnapped the victim for the purpose of killing
him, he was in fact killed by his abductor, the crime committed
was the complex crime of kidnapping and murder under Art. 48 of
the Revised Penal Code, as the kidnapping of the victim was a nec-
essary means of committing the murder. On the other hand, where
the victim was kidnapped not for the purpose of killing him but was
subsequently slain as an afterthought, 2 separate crimes of kidnap-
ping and murder were committed.

682
Art. 48 PENALTY FOR COMPLEX CRIMES

However, No. 7659 amended Art. 267 of the Revised Penal

Code by adding thereto a last paragraph which provides — When the
victim is killed or dies as a consequence of the detention, or is raped,
or is subjected to torture or dehumanizing acts, the maximum penalty
shall be imposed.
This amendment introduced in our criminal statutes the concept
complex of kidnapping with murder or homicide. It
effectively eliminated the distinction drawn by the courts between
those cases where the killing of the kidnapped victim was purposely
sought by the accused, and those where the killing of the victim was
not deliberately resorted to but was merely an afterthought.
Consequently, the rule now is: Where the person kidnapped is
killed in the course of the detention, regardless of whether the killing
was purposely sought or was merely an afterthought, the kidnapping
and murder or homicide can no longer be complexed under Art. 48, nor
be treated as separate crimes, but shall be punished as a special complex
crime under the last paragraph of Art. 267, as amended by R.A. No.
7659. (People vs. Ramos, 297 SCRA 618, Parulan vs. Rodas)

Plurality of crimes.
Plurality of crimes defined.
Plurality of crimes consists in the successive execution by the
same individual of different criminal acts upon any of which no con-
viction has yet been declared. (Guevara)

Kinds of plurality of crimes.

There are two kinds of plurality of crimes: (1) formal or ideal
plurality, and (2) real or plurality.

Art. 48 provides for two cases of formal or ideal plurality of

crimes. There is but one criminal liability in this kind of plurality.
In real or material plurality, there are different crimes in law
as well as in the conscience the offender. In such cases, the offender
shall be punished for each and every offense that he committed.

Example of real or material plurality.

A stabbed B with a knife. Then, A also stabbed There are two
crimes committed. Note that there are two acts performed.

683
 PENALTY FOR COMPLEX CRIMES Art. 48

Plurality of crimes distinguished from recidivism.

In recidivism, there must be conviction by final judgment of the
first or prior offense; in plurality of crimes, there is no conviction of
any of the crimes committed.

Plural crimes of the formal or ideal type are divided into

three groups.
A person committing multiple crimes is punished with ONE
penalty in the following cases:

1. When the offender commits any of the complex crimes

defined in Art. 48 of the Code.
2. When the law specifically fixes a single penalty for two or
more offenses committed.
Examples:

(1) Robbery with homicide (Art. 294);

(2) Kidnapping with serious physical injuries. (Art. 267,
par. 3)
3. When the offender commits continued crimes.

Continued crime.
A continued (continuous or continuing) crime is a single crime, con-
sisting of a series of acts but all arising from one criminal resolution.
A continuing offense is a continuous, unlawful act or series of
acts set on foot by a single impulse and operated by an
force, however long a time it may occupy. (22 C.J.S., 52)
Although there is a series of acts, there is only one crime com-
mitted. Hence, only one penalty shall be imposed.

Examples of continued crimes:

1. Thus, a collector of a commercial firm misappropriates for
his personal use several amounts collected by him from
different persons. There is here one crime only, because
the different and successive appropriations are but the
different moments during which one criminal resolution
arises and a single defraudation develops.

684
Art. 48 PENALTY FOR COMPLEX CRIMES

But if it does not appear that when the malversa-

tion and the falsification were committed on April 30, it
was already the intention of the appellant to commit also
the falsification and the malversation of May 2, 1931, the
same being necessary to justify the finding that, although
they were committed on different dates, a single intention
determined the commission of both, the appellant is liable
for each and every one of those offenses. (Regis vs. People,
67 Phil. 43, 47)
2. Likewise, a thief who takes from the yard of a house two
game roosters belonging to two different persons com-
mits only one crime, for the reason that there is a unity of
thought in the criminal purpose of the offender. There is
no series of acts here for the accomplishment of different
purposes, but only of one (purpose) which is consummated,
and which determines the existence of only one crime.
(People vs. De Leon, 49 Phil. 437, 439-441)
In getting hold of the two roosters, it is not done by
a single act of taking, but by two separate acts. There is,
however, a unity of thought and action in taking the two
roosters.
The taking of six roosters from coop is a single offense
of theft. The assumption is that the accused were animated
by single criminal impulse. (People vs. Jaranilla, No. L-
28547, Feb. 22, 1974, 55 SCRA 563, 575)
Eight robberies as component parts of a general plan. While
the inhabitants of a barrio were working in a sugar mill,
seven armed persons, who had a general plan to commit
robbery against all those in the entered the mill and
while two of the bandits guarded the people with guns lev-
elled at them, five of them ransacked the houses for their
personal properties.
Held: The several acts of ransacking the different
houses were not unconnected and entirely distinct from
one another. They formed component parts of the general
plan to despoil all those within the vicinity. There is only
one crime of robbery in this case. (People vs. De la Cruz,
G.R. May 23, 1950)

685
 PENALTY FOR COMPLEX CRIMES Art. 48

4. The accused and his companion ran amok in the passen-

section of the upper deck of a motorboat. Eleven per-
sons were killed and twenty other persons were seriously
wounded by him and his companion who was later killed
by a patrolman. The accused confessed that he and his
companion had a common motive to run amok. It was held
that since the killings were the result of a single impulse
and that neither the accused nor his companion had in
mind killing any particular individual, the acts complained
of should be considered as resulting from a single criminal
impulse and constituting a single offense. (People vs. Emit,
CA-G.R. No. Jan. 31 , 1956)

Not one continuing crime, but three separate crimes.

People vs. Enguero
(100 Phil. 1001)

Facts: Appellants were charged with the crime of robbery in band

in three separate informations, committed by robbing one house, then
proceeded to another house where the second robbery was committed
and then to another house where the third robbery was committed.
Held: Appellants argue that they are guilty of one crime only,
citing in support of their contention the case of People vs. De Leon, 49
Phil. 437. The contention is without merit. In the case cited, defendant
entered the yard of a house where he found two fighting cocks belong-
ing to different persons and took them. In the present case, appellants,
after committing the first crime, went to another house where they
committed the second and then proceeded to another house where they
committed the third. Obviously, the rule in the case cited cannot be
invoked and applied to the present.

The series of acts born of a single criminal impulse may be

perpetrated during a long period of time.
A sent an anonymous letter to B, demanding under
threats of death and burning the latter's house. B sent to A.
Two months later, A sent again another letter to B, demanding the
balance of and making the same threats. B sent to
A. Four months later, A sent again another letter to B, demanding
the amount and making the same threats. B sent P1,000.
Six months thereafter, A sent another letter to B, demanding the

686
Art. 48 PENALTY FOR COMPLEX CRIMES

remaining and making the same threats. This time, A was

arrested for grave threats.
It was held that the different acts of sending letters of demand
for money with threats to kill and burn the house of the offended
party constitute only one and the same crime of grave threats born
of a single criminal impulse to attain a definite objective. (See People
vs. Moreno, C.A., 34 O.G. 1767)

When two acts are deemed distinct from one another although
proceeding from the same criminal impulse.
Where the accused, after uttering defamatory words against
the offended party, attacked and assaulted the latter, resulting in
slight physical injuries, two offenses were committed, for while the
insults as well as the assault were the product of the same criminal
impulse, the act of insulting is entirely different and distinct from
that of inflicting physical injuries, although the two offenses may have
taken place on the same occasion, or that one preceded the other.
The act of insulting cannot be deemed included in that of inflicting
physical injuries, because the offense of insult is an offense against
honor, whereas slight physical injuries is an offense against persons.
Hence, prosecution of the accused for the two offenses cannot place
him in danger of double jeopardy. (People vs. Ramos, 59 O.G. 4052)
Slander (uttering defamatory words) is defined and penalized
in Art. 358. Slight physical injuries is defined and penalized in Art.
266.

A continued crime is not a complex crime.

A continued crime is not a complex crime, because the offender
in continued or continuous crime does not perform a single act, but a
series of acts, and one offense is not a necessary means for committing
the other.

Not being a complex crime, the penalty for continued crime is

not to be imposed in the maximum period.
There is no provision in the Revised Penal Code or any other
penal law defining and specifically penalizing a continuing crime. The
principle is applied in connection with two or more crimes committed
with a single intention.

687
 PENALTY FOR CRIME NOT INTENDED Art. 49

Thus, in the case of People vs. De Leon, supra, the theft of the
two game roosters belonging to two different persons was punished
with one penalty only, the Supreme Court holding that there being
only one criminal purpose in the taking of the two roosters, only one
crime was committed.

A continued crime is different from a transitory crime.

A continued, continuous or continuing crime is different from a
transitory crime in criminal procedure to determine An exam-
ple of transitory crime, also called a "moving crime," is kidnapping a
person for the purpose of ransom, by forcibly taking the victim from
Manila to Bulacan where ransom was demanded. The offenders could
be prosecuted and tried either in Manila or in Bulacan.
When a transitory crime is committed, the criminal action may
be instituted and tried in the court of the municipality, city or prov-
ince wherein any of the essential ingredients thereof took place. The
singleness of the crime, committed by executing two or more acts, is
not considered.

Distinguish real or material plurality from continued crime.

In real or material plurality as well as in continued there
is a series of acts performed by the offender.
While in real or material plurality, each act performed by the
offender constitutes a separate crime, because each act is generated
by a criminal impulse; in continued crime, the different acts consti-
tute only one crime because all of the acts performed arise from one
criminal resolution.

Art. 49 . Penalty to be imposed upon the principals when the crime

committed is different from that intended. — In c as e s in w h i c h th e
fel on y c o m m i t t e d i s d i f fe r en t fro m tha t w h i c h th e offen d er
intende d t o th e f o l l o w i n g ru l e s shall b e ob se rv ed .
1. . I f th e p e n a l t y p r e s c r i b e d for th e fel on y
c o m m i t t e d b e h i g h e r tha n tha t c o r r e s p o n d i n g t o th e offen se
wh i c h th e a c c u s e d i n t e n d e d t o c o m m i t , th e p e n a l t y
c o r r e s p o n d i n g t o th e l atte r shall b e i m p o s e d i n its m a x i m u m
p eri od .
688
Art. 49 PENALTY FOR CRIME NOT INTENDED

2. . I f th e p en a l t y p r e s c r i b e d for th e fel on y
c o m m i t t e d b e l owe r tha n tha t c o r r e s p o n d i n g t o th e on e
w h i c h th e ac- cu se d i n t e n d e d t o co mm i t , th e p en a l t y for
th e forme r sh all b e i m p o s e d i n it s m a x i m u m p eri od .
3. rule e st ab l i s h e d b y nex t p r e c e d i n g p a r a g r a p h
shall no t b e a p p l i c a b l e i f th e act s c o m m i t t e d b y th e gu il t y
p e r s o n sh al l als o c o n s t i t u t e a n a t t e m p t o r f r u s t r a t i o n o f
a n o t h e r crime , i f th e la w p r e s c r i b e s a h i gh e r p en a l t y for ei th e
r o f th e l atte r of fe n s es , i n w h i c h cas e th e p e n a l t y p r o v i d e d
for th e a t t e m p t o r th e f r u s t r a t e d cri m e sh all b e i m p o s e d i n th
e m a x i m u m p er i o d .

Rules as to the penalty to be imposed when the crime com-

mitted is different from that intended.
If the penalty for the felony committed be higher than the
penalty for the which the accused intended to commit,
the lower penalty shall be imposed in its maximum period.
2. If the penalty for the felony committed be lower than the
penalty for the which the accused intended to commit,
the lower penalty shall be imposed in its maximum period.
3. If the act commi tted also con sti tu tes an attemp t or
frustration of another crime, and the law prescribes a
higher penalty for either of the latter, the penalty for
the attempted or frustrated crime shall be imposed in its
maximum period.

Art. 49 has reference to the provision of the paragraph

of Art. 4.
When the crime actually committed is different from that in-
tended, as contemplated in the first paragraph of Art. 4, the penalty
to be imposed must be governed by the rules provided in Art. 49, be-
cause the opening sentence of Art. 49 specifically mentions "cases in
which the felony committed is different from that which the offender
intended to commit." On the other hand, Art. 4 in its paragraph 1
provides that criminal liability shall be incurred "by any person com-
mitting a felony (delito) although the wrongful act done be different
from that which he intended."

689
 PENALTY FOR CRIME NOT INTENDED Art. 49

Art. 49 applies only when there is a mistake in the identity of

the victim of the crime, and the penalty for the crime
committed is different from that for the crime intended to be
committed.
Paragraph 1 of Art. 4 covers (1) aberratio ictus (mistake in the
blow), (2) error in personae (mistake in the identity of the victim),
and (3) praeter intentionem (where a more serious consequence not
intended by the offender befalls the same person).
(1) Aberratio ictus —

Example: A fired his gun at his father, with intent to kill

him, but he missed and hit C, killing the latter.
In this case, two crimes were actually committed:
homicide, of which C was the victim; and (2) attempted
parricide, of which A's father was the offended party. One
who fires a gun at his father with intent to kill is guilty
of attempted parricide, even if the latter is not injured at
all.

The two crimes actually committed were the result

of a single act; hence, A committed a complex crime of
consummated homicide with attempted parricide. There
being a complex crime, Art. 48, not Art. 49, is applicable.
Thus, the Supreme Court in the case of Guillen, 85
Phil. 307, said: "We think it is (Art. 48) and not paragraph
1 of Article 49 that is applicable. The case before us is
clearly governed by the first clause of Article 48 because
by a single act, that of throwing a highly explosive hand
grenade at President Roxas, the accused committed several
grave felonies, namely: (1) murder, of which Simeon Valera
was the victim; and (2) multiple attempted murder, of which
President Roxas, Alfredo Eva, Jose Fabio, Pedro and
were the injured parties."

(2) Error in personae —

Examples:
A, thinking that the person walking in a dark alley
was B, a stranger, fired at that person, who was killed as
a result. It turned out that person was C, the father of A.

690
Art. 49 PENALTY FOR CRIME NOT INTENDED

In this the crime actually committed is parricide,

punishable by reclusion perpetua to death. The crime which
A intended to commit is homicide, punishable by reclusion
temporal. In view of rule No. 1 provided for in Art. 49, the
penalty for homicide shall be imposed in its maximum
period.
But suppose that A wanted to kill his father and
waited for the latter in a dark alley where he used to pass
in going home; when A saw a person coming and think-
ing that he was his father, A shot him; and it turned out
that that person was a stranger. In this case, A should be
punished with the penalty for homicide to be applied in its
maximum period.
Note that in either case, the lesser penalty is always to
be imposed, only that it shall be imposed in the maximum
period.
(3) Praeter intentionem —
Example: A, without intent to kill, boxed B from
behind on the back part of the latter's head. B fell to the
cement pavement with his head striking it. B died due to
the fracture of the skull. In this case, the death of B was
not intended by A.

Art. 49 has no application to cases where a more serious consequence

not intended by the offender befalls the same person.
A wanted only to inflict a wound on the face of B that would
leave a permanent scar on his face or one that would compel the latter
to remain in the hospital for a week or two, but never intended to
kill him. But as A did not have control of his right arm on account
of paralysis, the blow, although intended for the face, landed at the
base of the neck, resulting in the fatal wound in that part of the body
of B, who died as a consequence. (People vs. Albuquerque, 59 Phil.

In this case, there is praeter intentionem and the crime not

intended by the offender befell the same person. Note that in the
examples under error in personae, the crime not intended by the of-
fender befell a different person.

691
 PENALTY FOR CRIME NOT INTENDED Art. 49

From the foregoing examples and discussions, it will be noted

that the rules stated in paragraphs 1 and 2 of Art. 49 cannot apply
to cases involving aberratio ictus or praeter intentionem.
On the other hand, in error in personae, since only one crime is pro-
duced by the act of the offender, there could be no complex which
presupposes the commission of at least two crimes. In the two examples
of error in personae, it will be noted that only one person was affected by
the single act of the offender; hence, only one crime was produced. For
this reason, it is Art. 49, and not Art. 48, that is applicable.

Art. 49 is applicable only when the intended crime and the

crime actually committed are punished with different
penalties.
The rules prescribed in paragraphs 1 and 2 of Art. 49 contemplate
of cases where the intended crime and the crime actually commit-
ted are punished with different penalties by reason of relationship
between the offender and the offended party, which qualifies one of
the crimes.
If the intended crime and the crime actually committed are pun-
ished with the same or equal penalties, Art. 49 is not applicable.
Thus, if A, intending to kill B, a stranger, actually killed C,
another stranger, Art. 49 is not applicable, because whether it was B
or it was C who was killed, the crime committed was homicide. There
is no difference in the penalty.

Art. 49 distinguished from Art. 48.

In Art. 49, the lesser penalty is to be imposed, to be applied in
the maximum period (Pars. 1 and 2); in Art. 48, the penalty for the
more or most serious crime shall be imposed, the same to be applied
in its maximum period.

Rule No. 3 in Art. 49 is not necessary.

The rule in paragraph 3 of Art. 49 is not necessary because the
cases contemplated in that paragraph may well be covered by Art.
48, in view of the fact that the same act committed by the guilty
person, which gives rise to one crime, also constitute(s) an attempt
or a frustration of another crime.

692
 Arts. 50-55 PENALTIES

Art. 50. Penalty to be imposed upon principals of a frustrated

crime. — The p en al t y nex t l owe r in d egre e tha n tha t p r e s c r i b e
d b y la w for th e c o n s u m m a t e d fel on y shall b e i m p o s e d u p o n th
e p r i n c i p a l s in a f r u s t r a t e d felony.

Art. 51 . Penalty to be imposed upon principals of attempted

crime. — Th e p e n a l t y l o w e r by tw o d e g r e e s t h a n tha t pre -
s c r i b e d b y la w for th e c o n s u m m a t e d fel on y shal l b e i m p o s e d
up o n th e p r i n c i p a l s i n a n a t t e m p t t o c o m m i t a fel on y .

Art. 52 . Penalty to be imposed upon accomplices in a consum-

mated crime. — Th e p e n a l t y n ex t l o w e r in d e g r e e t h a n tha t pre-
s c r i b e d b y la w for th e c o n s u m m a t e d f el on y sh al l b e i m p o s e d
u p o n th e a c c o m p l i c e s i n th e c o m m i s s i o n o f a c o n s u m m a t e d
fel on y .

Art. 53 . Penalty to be imposed upon accessories to the commission

of a consummated felony. — Th e p e n a l t y l o w e r by tw o d e g r e e s
th a n tha t p r e s c r i b e d b y la w for th e c o n s u m m a t e d f el on y sh al
l b e i m p o s e d u p o n th e a c c e s s o r i e s t o th e c o m m i s s i o n o f a con
- s u m m a t e d fel on y.

Art. 54 . Penalty to be imposed upon accomplices in a frustrated

crime. — Th e p en a l t y nex t l o w e r in d e g r e e tha n tha t p r e s c r i b e
d b y la w for th e f r u s t r a t e d f el on y sh al l b e i m p o s e d u p o n th e
a c c o m p l i c e s in th e c o m m i s s i o n of a f r u s t r a t e d f el on y .

Art. 55 . Penalty to be imposed upon accessories of a frustrated

crime. — Th e p e n a l t y l o w e r b y tw o d e g r e e s t h a n th a t pre -
scribe d b y for th e f r u s t r a t e d f el on y shal l b e i m p o s e d u p o
n th e a c c e s s o r i e s t o th e c o m m i s s i o n o f a f r u s t r a t e d fel on y .

693
 PENALTIES Arts. 50-57

56 . Penalty to be imposed upon accomplices in an attempted

crime. — Th e p e n a l t y n ex t l o w e r in d e g r e e th a n tha t p r e s c r i b e
d b y la w for a n a t t e m p t t o c o m m i t a f el on y sh al l b e
i m p o s e d u p o n th e a c c o m p l i c e s i n a n a t t e m p t t o c o m m i t th e
fel on y .

Art. 57 . Penalty to be imposed upon accessories of an attempted

crime. — Th e p e n a l t y l o w e r b y tw o d e g r e e s th a n tha t pre -
s c r i b e d b y la w fo r th e a t t e m p t sh a l l b e i m p o s e d u p o n th e
a c c e s s o r i e s t o th e a t t e m p t t o c o m m i t a fel on y .

Diagram of the application of Arts. 50 to 57.

Consummated Frustrated Attempted

Principals 0 2

Accomplices 1 2 3

Accessories 2 3 4

represents the penalty prescribed by law in a

which is to be imposed on the principal in a consummated offense,
in accordance with the provisions of Article 46. The other figures
represent the degrees to which the penalty must be lowered, to meet
the different situations anticipated by law.
In Articles 50, 51, 52 and 53 of the Revised Penal Code, the basis
for reduction of the penalty by one or two degrees, is invariably the
penalty prescribed by law for the consummated crime, while under
Articles 54 and 55, the basis for the reduction is the penalty prescribed
by law for the frustrated felony; and under Articles 56 and 57, the
basic penalty to be used for reduction by one or two degrees is that
for the attempted felony. From all of these, it will also be observed
that in making any reduction by one or two degrees, the basis used is
that already prescribed, not as already reduced. It will also be noticed
that under Article the penalty for an attempted crime is that for
the consummated felony, reduced by two degrees, not the penalty
694
Arts. 50-57 PENALTIES

for the frustrated felony, reduced by one degree. (De Angeles vs.
People, 103 Phil. 295, 298-299)

Examples:
A is convicted of attempted homicide for having shot B
with intent to kill the latter, but without inflicting a mortal
wound.
The penalty for con su mmated homicide is reclusion
temporal. (Art. 249, Book II, Revised Penal Code) The penalty
lower by one or more degrees is indicated in Scale No. 1 of Art.
71. The crime committed by A being attempted homicide, the
penalty to be imposed on him is that penalty lower by two degrees
than reclusion temporal (No. 3 in Scale No. 1, Art. 71), and the
penalty two degrees lower is prision correccional (No. 5 in the
same Scale No. 1).
To find the penalty for frustrated homicide, which is one
degree lower than reclusion temporal, use also Scale No. 1 of
Art. 71, and that penalty one degree lower is prision mayor (No.
4 in the Scale).
A, as principal, B, as accomplice, and C, as accessory,
are convicted of consummated homicide. The penalty for A
is reclusion temporal, he being the principal. (Art. 46) The
penalty for B is prision mayor, the penalty next lower in
degree than that prescribed for the con su mmated homicide.
(Art. 52) The penalty for C is prision correccional, it being
two degrees lower than that prescribed for c on su m ma te d
homicide. (Art. 53)
In the examples, the penalty for the principal in the attempted
homicide, and the penalties for the principal, accomplice and acces-
sory in the commission of consummated homicide shall be imposed
in the proper period and shall be subject to the provisions of the
Indeterminate Sentence Law.

Exceptions to the rules established in Articles 50 to 57.

Arts. 50 to 57 shall not apply to cases where the law expressly
prescribes the penalty for a frustrated or attempted felony, or to be
imposed upon accomplices or accessories. (Art. 60)

695
 PENALTIES 50-57

The penalty for frustrated parricide, murder, or homicide may be two

degrees lower; and the penalty for attempted parricide, murder, or
homicide may be three degrees lower.
The courts, in view of the facts of the case, may impose upon the
person guilty of the frustrated crime parricide, murder, or homicide,
a penalty lower by one degree than that which should be imposed
under the provisions of Art. 50; and may reduce by one degree, the
penalty which under Art. 51 should be imposed for an attempt to
commit any of such crimes. (Art. 250)

What are the bases for the determination of the extent of

penalty to be imposed under the Revised Penal Code?
The stage reached by the crime in its development (either
attempted, frustrated or consummated).
The participations therein of the persons liable.
3. The aggravating or mitigating circumstances which at-
tended the commission of the crime.
In the different stages of execution in the commission of the crime
and in the participation therein of the persons liable, the penalty is
graduated by degree.

What is a degree in relation to penalty?

A degree is one entire penalty, one whole penalty or one unit of
the penalties enumerated in the graduated scales provided for in Art.
71. Each of the penalties of reclusion perpetua, reclusion temporal,
prision mayor, etc., enumerated in the graduated scales of Art. 71,
is a degree.
When there is mitigating or aggravating circumstance, the
penalty is lowered or increased by period only, except when the
penalty is divisible and there are two or more mitigating and without
aggravating circumstances, in which case the penalty is lowered by
degree.

What is a period of penalty?

A period is one of the three equal portions, called minimum,
medium, and maximum, of a divisible penalty. (See Art. 65)

696
 Art. 58 ADDITIONAL PENALTY TO BE IMPOSED
UPON CERTAIN ACCESSORIES

A period of a divisible penalty, when prescribed by the

Code as a penalty for a felony, is in itself a degree.
In Art. 140, the penalty for the leader of a sedition is prision
mayor in its minimum period and fine.
It being a degree, the penalty next lower than that penalty is
prision correccional in its maximum period. (People vs. 60
Phil. 796, and People vs. Haloot, 64 Phil. 739)

Art . 58 . Additional penalty to be imposed upon certain

accessories. — T h os e a c c e s s o r i e s fal li n g w i t h i n th e t e r m s of
p a r a g r a p h 3 o f Arti cl e 1 9 o f thi s Cod e wh o s h o u l d ac t w i t h
ab u s e o f t h e i r p u b l i c f u n c t i o n s , shal l su ffer th e a d d i t i o n a l
p e n a l t y o f a b s o l u t e p e r p e t u a l d i s q u a l i f i c a t i o n i f th e p r i n c i p a
l of fe n d e r sh all be gu i l t y of a gr av e fel on y, an d th a t of a b s o l u t e
t e m p o r a r y d i s q u a l i f i c a t i o n i f h e shal l b e gu i l t y o f a les s gr av e
fel on y .

Additional penalties for public officers who are guilty as ac-

cessories under paragraph 3 of Article
Public officers who help the author of a crime by misusing their
office and duties shall suffer the additional penalties of:
Absolute perpetual disqualification, if the principal offender
is guilty of a grave felony.

Absolute temporary disqualification if the principal

is guilty of less grave felony.
Why does this article limit its provisions to grave or less grave
felonies? Because it is not possible to have accessories liable for light
felonies. (Art. 16).

This article applies only to public who abused

their public
The accessories referred to in Art. 58 are only those falling within
the term of paragraph 3 of Art. 19.

697
 PENALTY FOR IMPOSSIBLE CRIME Art. 59

The additional penalty prescribed in this article will be imposed

only on those accessories whose participation in the crime is charac-
terized by the misuse of public office or authority. This is so, because
Art. 58 says "who should act with abuse of their public functions."

Art. 59. Penalty to be imposed in case of failure to commit the

crime because the means employed or the aims sought are impossible.
— Wh e n th e p e r s o n i n t e n d i n g t o c o m m i t a n o f f e n s e ha s
a l r e a d y p e r f o r m e d th e act s fo r th e e x e c u t i o n o f th e sam e bu t
n e v e r t h e l e s s th e c r i m e wa s no t p r o d u c e d b y r e a s o n o f th
e fact tha t th e ac t i n t e n d e d wa s b y it s n a t u r e on e o f i m p o s s i b l
e a c c o m p l i s h m e n t o r b e c a u s e th e m e a n s e m p l o y e d b y su c h
p e r s o n ar e e s s e n t i a l l y i n a d e q u a t e t o p r o d u c e th e r e s u l t
d e s i r e d b y him , th e cou rt , h a v i n g i n m i n d th e soci a l d a n g e
r an d th e d e g r e e o f c r i m i n a l i t y s h o w n b y th e o ff en d e r, shall
i m p o s e u p o n hi m th e p e n a l t y of arresto mayor or a fine r a n g i n g
from 200 t o 500 p e s o s .

Penalty for impossible crime.

The penalty for impossible crime is arresto mayor or a fine rang-
ing from 200 to 500 pesos.

Basis for imposition of proper penalty: social danger, and

(2) degree of criminality shown by the offender.
The court must take into consideration the social danger and
the degree of criminality shown by the offender. (Art. 59)
Thus, a person who fired a revolver upon his enemy from a
distance of one kilometer, shows stupidity rather than dangerous-
ness. According to the theory, such person should not be
punished, because there is neither "social danger" nor any "degree of
shown by such person. His said act is absolutely harm-
less. Even subjectively, a man with a little common sense will know
that he cannot hit a person by firing a revolver one kilometer away.
(Guevara)
But one who discharged a shotgun at another from a distance
of 200 yards, is guilty of discharge of firearm under Art. 254, not of

698
 Art. 60 EXCEPTIONS TO ARTICLES 50-57

impossible crime, there being no proof of intent to kill on the part of

the offender and it being possible of accomplishing the evil intent of
the offender (to frighten the offended party). People vs. Agbuya,
57 Phil. 238, 243)

Is the penalty for impossible crime proper?

The fixing of the penalty of arresto mayor or a fine of to
P500 is subject to criticism, because this article uses the words "of-
fense" and "crime" which include light felony. So, he who attempts to
commit a light felony of impossible materialization may be punished
by a penalty of arresto mayor which is higher than that prescribed
for the consummated light felony, which is arresto menor. (Albert)
But the provision of Article 59 is limited to those cases where
the act performed would be grave felonies or less grave felonies.
(Guevara)

Art. 60. Exceptions to the rules established in Articles 50 to 57.

— Th e c o n t a i n e d in Articles 50 to 57, i n c l u s i v e, of this
Cod e shall b e ap p l i ca b l e t o case s i n w h i c h la w e x p r e s s l y
p r e s c r i b e s th e p e n a l t y p r o v i d e d for a f r u s t r a t e d or a t t e m p t e d
felony, o r t o b e i m p o s e d up o n a c c o m p l i c e s o r a c c e s s o r i e s .

Arts. 50 to 57 do not apply when the law expressly

prescribes the penalty for a frustrated or attempted felony
or to be im- posed upon accomplices or accessories.
Thus, when on the occasion or in consequence of an attempted
or frustrated robbery, the offender commits a homicide, the law
provides in Art. 297 that the special penalty of reclusion temporal in
its maximum period to reclusion perpetua shall be imposed upon the
offender.

Were it not for this provision in Art. 60, the penalty to be im-
posed would be reclusion temporal which is the penalty next lower in
degree than reclusion perpetua to death, the penalty for consummated
offense of robbery with homicide.
Because of the enormity of the offense of attempted or frustrated
robbery with homicide, the law provides a special penalty therefor.

699
 EXCEPTIONS TO ARTICLES Art. 60

Accomplice, punished as principal.

Again, under the general rule, an accomplice is punished by a
penalty one degree lower than the penalty imposed upon the principal.
But in two cases, the Code punishes an accomplice with the same
penalty imposed upon the principal. They are:

1. The ascendants, guardians, curators, teachers and any

person who by abuse of authority or confidential relation-
ship, shall cooperate as accomplices in the crimes of rape,
acts of lasciviousness, seduction, corruption of minors,
white slave trade or abduction. (Art. 346)
2. One who furnished the place for the perpetration of the
crime of slight illegal detention. (Art. 268)
Furnishing the place for the perpetration of the crime is ordinar-
ily the act of an accomplice.

Accessory punished as principal.

Knowingly concealing certain evil practices is ordinarily an act
of the accessory, but in Art. 142, such act is punished as the act of
the principal.

Certain accessories are punished with a penalty one degree

lower, instead of two degrees.
In certain crimes, the participation of the offender is that of an
accessory because he perpetrates the act after someone has committed
counterfeiting or falsification. But the penalty for the act perpetrated
is one degree lower instead of two degrees lower in the following
crimes:
Knowingly using counterfeited seal or forged signature or
stamp of the President. (Art. 162)
2. Illegal possession and use of a false treasury or bank note.
(Art. 168)
3. Using a falsified document. (Art. 173, par. 3)
4. Using a falsified dispatch. (Art. 173, par. 2)

700
 Art. 61 RULES FOR GRADUATING PENALTIES

Art. 61 . Rules for graduating penalties. — Fo r th e p u r p o s e of

g r a d u a t i n g th e p e n a l t i e s w h i c h , a c c o r d i n g t o th e p r o v i s i o n
s o f Arti cl es fift y t o f i f t y - seven , i n c l u s i v e , o f thi s Code , ar e t o
be i m p o s e d up o n p e r s o n s gu i l t y a s p r i n c i p a l s o f an y
f r u s t r a t e d o r a t t e m p t e d fel on y, o r a s a c c o m p l i c e s o r
a c c e s s o r i e s , th e fol- l o w i n g ru le s shall b e o b s e r v e d :

1 . Whe n th e p e n a l t y p r e s c r i b e d for th e fe l o n y i s si n gl e
an d i n d i v i s i b l e , th e p e n a l t y nex t l ow e r i n d e g r e e shal l b e tha
t i m m e d i a t e l y f o l l o w i n g tha t i n d i v i s i b l e p e n a l t y i n th e respec
- tiv e g r a d u a t e d scal e p r e s c r i b e d i n Arti cl e 7 1 o f thi s Code .
2 . Wh e n th e p e n a l t y p r e s c r i b e d for th e cr i m e i s com -
p os e d o f tw o i n d i v i s i b l e p e n a l t i e s , o r o f on e o r mor e d i vi s-
ible p e n a l t i e s t o b e i m p o s e d t o th ei r full e x t e n t , th e p e n a l t y
n ex t l o w e r i n d e g r e e shal l b e tha t i m m e d i a t e l y f o l l o w i n g th e
l e ss e r o f th e p e n a l t i e s p r e s c r i b e d i n th e r e s p e c t i v e g r a d u a t e
d scal e .
3 . Wh e n th e p e n a l t y p r e s c r i b e d for th e c r i m e i s com -
p o s e d o f on e o r tw o i n d i v i s i b l e p e n a l t i e s an d th e
p e r i o d o f a n o t h e r d i v i s i b l e p e n a l t y , th e p e n a l t y n e x t l o w e r i
n d e g r e e shal l b e c o m p o s e d o f th e m e d i u m an d m i n i m u m
peri- od s o f th e p r o p e r d i v i s i b l e p e n a l t y an d th e m a x i m u m
p e r i o d o f tha t i m m e d i a t e l y f o l l o w i n g i n sai d r e s p e c t i v e
g r a d u a t e d scal e .
4 . Wh e n th e p e n a l t y p r e s c r i b e d for th e c r i m e i s com -
p o s e d o f s e v e r a l p e r i o d s , c o r r e s p o n d i n g t o d i ff er e n t d i v i s i b l e
p e n a l t i e s , th e p e n a l t y n ex t l o w e r i n d e g r e e sh al l b e c o m p o s e
d o f th e p e r i o d i m m e d i a t e l y f o l l o w i n g th e m i n i m u m p r e s c r i b e
d an d o f th e tw o nex t f o l l o w i n g , w h i c h sh al l b e t a k e n fro m th
e p e n a l t y p r e s c r i b e d i f p o s s i b l e ; o t h e r w i s e fro m th e p e n a l t y
i m m e d i a t e l y f o l l o w i n g i n th e a b o v e m e n t i o n e d r e s p e c t i v e
g r a d u a t e d scal e .
5 . Whe n th e la w p r e s c r i b e s a p e n a l t y for a c r i m e
in som e m a n n e r no t sp e c i a l l y p r o v i d e d for i n th e four p r e c e d i n
g ru l e s , th e c o u r t s , p r o c e e d i n g b y a n a l o g y , sh al l i m p o s e th e
c o r r e s p o n d i n g p e n a l t i e s u p o n th os e gu il t y a s p r i n c i p a l s o f th
e f r u s t r a t e d felony, o r o f a t t e m p t t o c o m m i t th e s am e , an d up o
n a c c o m p l i c e s an d a c c e s s o r i e s . (As amended by Com. Act No.

701
 RULES FOR GRADUATING PENALTIES Art. 61

Art. 61 provides for the rules to be observed in lowering the

penalty by one or two degrees.
According to Art. 46 , the penalty prescribed by law in gen-
eral terms shall be imposed upon the principal in a consummated
felony. According to Arts. 50 to 57, the penalty prescribed by law
for the felony shall be lowered by one or two degrees, as follows:
For the principal in frustrated felony — one degree low-
er;
(2) For the principal in attempted felony — two degrees low-
er;
(3) For the accomplice in consummated felony — one degree
lower; and
(4) For the accessory in consummated felony — two degrees
lower.
The rules provided for in Art. should also apply in determining
the minimum of the indeterminate penalty under the Indeterminate
Sentence Law. The minimum of the indeterminate penalty is within
the range of the penalty next lower than that prescribed by the Revised
Penal Code for the offense.
Those rules also apply in lowering the penalty by one or two de-
grees by reason of the presence privileged mitigating circumstance
(Arts. 68 and 69), or when the penalty is divisible and there are two
or more mitigating circumstances (generic) and no aggravating cir-
cumstance. (Art. 64)

The lower penalty shall be taken from the graduated scale

in Art.
Scale No. 1 in Art. enumerates the penalties in the following
order:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,

702
 Art. 61 RULES FOR GRADUATING PENALTIES

6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
The indivisible penalties are: (1) death, (2) reclusion perpetua,
and public censure.
The divisible penalties are reclusion temporal down to arresto
menor.
The divisible penalties are divided into three periods, namely:
(1) the minimum, (2) the medium, (3) the maximum.

Illustrations of the rules:

First rule:

When the penalty is single and indivisible.

A single and indivisible penalty is reclusion perpetua. This is
the penalty for kidnapping and failure to return a minor. (Art. 270)
In Scale No. 1 in Art. the penalty immediately following reclusion
perpetua is reclusion temporal. The penalty next lower in degree,
therefore, is reclusion temporal.

Second rule:

When the penalty is composed of two indivisible penalties.

Two indivisible penalties are reclusion perpetua to death. This is
the penalty for parricide. (Art. 246) The penalty immediately following
the lesser of the penalties, which is reclusion perpetua, is reclusion
temporal. (See Scale No. 1 in Art. 71)

When the penalty is composed of one or more divisible penal-

ties to be imposed to their full extent.
One divisible penalty to be imposed to its full extent is reclusion
and two divisible penalties to be imposed to their full extent
are prision correccional to prision mayor. The penalty immediately

703
 RULES FOR GRADUATING PENALTIES Art. 61

following the divisible penalty of reclusion temporal in Scale No. 1

of Art. is mayor; and the penalty immediately following
the lesser of the penalties prision correccional to mayor is
arresto mayor. (See Scale No. 1 in Art. 71)

Third rule:

When the penalty is composed of two indivisible penalties

and the maximum of a divisible penalty.
The penalty for murder (Art. 248) is reclusion temporal in its
maximum period to death. Reclusion perpetua, being between re-
clusion temporal and death, is included in the penalty.
Thus, the penalty for murder consists in two indivisible penalties
of death and reclusion perpetua and one divisible penalty reclusion
temporal in its maximum period.
The proper divisible penalty is reclusion temporal. The penalty
immediately following reclusion temporal is mayor.
Under the third rule, the penalty next lower is composed of the
medium and minimum periods of reclusion temporal and the maxi-
mum of prision mayor.
This is the penalty computed in the case of People vs. Ong Ta,
70 Phil. 553, 555.

Illustration:
Death
Reclusion perpetua Penalty for the princi-
(1)
pal in consummated
murder.
Reclusion 1. Maximum
temporal
2. Medium
3. Minimum (2) Penalty for accom-
plice; or penalty for
1. Maximum the principal in frus-
Prision mayor
2. Medium trated murder.

3. Minimum

704
Art. 61 RULES FOR GRADUATING PENALTIES

When the penalty is composed of one indivisible penalty and

the maximum period of a divisible penalty.
Example: Reclusion temporal in its maximum period to reclusion
perpetua. The same rule shall be observed in lowering the penalty by
one or two degrees.

Fourth rule:

When the penalty is composed of several periods.

The word "several" in relation to the number of periods, means
consisting in more than two periods. Hence, the fourth rule contem-
plates a penalty composed of at least three periods.
The several periods must correspond to different divisible penal-
ties.
The penalty which is composed several periods corresponding
to divisible penalties is prision mayor in its medium period
to reclusion temporal in its minimum period. The period immediately
following the minimum, which is prision mayor in its medium period,
is prision mayor in its minimum period. The two periods next following
are the maximum and medium periods of prision correccional, the
penalty next following in the scale prescribed in Art. since it cannot
be taken from the penalty prescribed.

I ll u s t r a t i o n :

Reclusion temporal

Penalty for the prin-

cipal in the consum-
Prision mayor mated felony.

Penalty for the accom-

Prision correccional 2. plice; or penalty for
the principal in the
frustrated felony.

705
 RULES FOR GRADUATING PENALTIES Art. 61

Fifth rule: (by analogy, because "not specially provided for in the
four preceding

When the penalty has two periods.

Certain offenses in the Code are punished with a penalty
composed of two periods, either of the same penalty —
(1)
For abduction 343) — prision correccional in its mini-
mum and medium periods;
or of different penalties —
(2)
For physical injuries (Art. 263 , subsection 4) — arresto
mayor in its maximum period to prision correccional in its
minimum period.
In these cases, the penalty lower by one degree is formed by two
periods to be taken from the same penalty prescribed, if possible, or
from the periods of the penalty numerically following the lesser of
the penalties prescribed.
These cases are not covered by the fourth rule, because the
penalty contemplated in the fourth rule must contain at least three
periods. The penalty under the fifth rule (by analogy) contains one
or two periods only.

Exa mple :
The penalty next lower than prision correccional in its minimum
and medium periods is arresto mayor in its medium and maximum
periods.

Maximum —
Medium — The penalty prescribed for
Minimum — the felony.

Arresto -
Minimum

When the penalty has one period.

If the penalty is any one of the three periods of a divisible penalty,
the penalty next lower in degree shall be that period next following
the given penalty. Thus, the penalty immediately inferior to

706
Art. 61 RULES FOR GRADUATING PENALTIES

mayor in its maximum period is prision mayor in its medium period.

(People vs. Co 58 Phil. 545, 551)
If the penalty is reclusion temporal in its medium period, the
penalty next lower in degree is reclusion temporal in its minimum
period. (People vs. 60 Phil. 796, 810)
The penalty prescribed by the Code for a felony is a degree. If the
penalty prescribed for a felony is one of the three periods of a divisible
penalty, that period becomes a degree, and the period immediately
below is the penalty next lower in degree.

Simplified rules:
The rules prescribed in paragraphs 4 and 5 of Art. 61 may be
simplified, as follows:
(1) If the penalty prescribed by the Code consists in three
periods, corresponding to different divisible penalties, the
penalty next lower in degree is the penalty consisting in
the three periods down in the scale.
(2) If the penalty prescribed by the Code consists in two periods,
the penalty next lower in degree is the penalty consisting
in two periods down in the scale.
(3) If the penalty prescribed by the Code consists in only one
period, the penalty next lower in degree is the next period
down in the scale.
If the given penalty is composed of one, two or three periods, the
penalty next lower in degree should begin where the given penalty
ends, because, otherwise, if it were to skip over intermediate ones, it
would be lower but not next lower in degree. (People vs. Haloot, 64
Phil. 739, 744)

In the case of U.S. vs. Fuentes, 4 Phil. 404, 405, it was held that
the penalty next lower in degree to correccional in its medium
period is arresto mayor in its medium period.

The reason for this ruling is that a degree consists in one whole
or one unit of the penalties enumerated in the graduated scales men-
tioned in Art. To lower a penalty by one degree, it is necessary to
keep a distance of one whole penalty or one unit of the penalties in
Art. 71 between one degree and another.

707
 EFFECTS OF MITIGATING OR AGGRAVATING Art. 62
CIRCUMSTANCES, ETC.

In the cases of People vs. Co Pao and People vs. there is

a distance of only one-third of a degree. But the ruling in the
case has been superseded by the rulings in those cases.

Mitigating and aggravating circumstances are disregarded in

the application of the rules for graduating penalties.
It will be noted that each paragraph of Art. 61 begins with the
phrase, the penalty prescribed for the felony" or "crime." Hence,
in lowering the penalty, the penalty prescribed by the Revised Penal
Code for the crime is the basis, without regard to the mitigating or ag-
gravating circumstances which attended the commission of the crime.
It is only after the penalty next lower in degree is already deter-
mined that the mitigating aggravating circumstances should
be considered.

S e c t i o n T wo . — R u l e s for th e a p p l i c a t i o n o f p e n a l t i e s
w i t h r e g a r d t o th e m i t i g a t i n g an d ag-
g r a v a t i n g c i r c u m s t a n c e s , an d h a b i t u a l
delinquency .

Art. 62 . Effects of the attendance of mitigating or aggravating

circumstances and of habitual delinquency. — M i t i g a t i n g or aggra-
vatin g c i r c u m s t a n c e s an d h a b i t u a l d e l i n q u e n c y shall b e tak e n
int o a c c o u n t for th e p u r p o s e o f d i m i n i s h i n g o r i n c r e a s i n g th e
p e n a l t y i n c o n f o r m i t y w i t h th e f o l l o w i n g ru l es :
1 . Aggravatin g circumstance s whic h i n themselve s
c o n s t i t u t e a c ri m e s p e c i a l l y p u n i s h a b l e b y la w o r w h i c h are
i n c l u d e d b y th e la w i n a c ri m e an d p r e s c r i b i n g th e
p e n a l t y t h e r e f o r shall no t b e t a k e n int o a c c o u n t for th e pur-
pos e o f i n c r e a s i n g th e p e n a l t y .
1(a). Whe n in th e c o m m i s s i o n of th e crime, ad van ta g e
wa s t a k e n b y th e o ff en d e r o f hi s pu bl i c p o si ti on , th e
pen- alty t o b e i m p o s e d sh all b e i n its m a x i m u m
regardles s o f mitigatin g circumstances .
Th e m a x i m u m p en a l t y shall be i m p o s e d i f the offense
wa s c o m m i t t e d b y an y p e r s o n wh o b e l o n g s t o a n organ-
i z e d / s y n d i c a t e d crim e grou p .

708
 Art. 62 EFFECTS OF MITIGATING OR AGGRAVATING
CIRCUMSTANCES, ETC.

An cri me grou p m e a n s a grou p

o f tw o o r mor e p e r s o n s c o l l a b o r a t i n g , c o n f e d e r a t i n g o r
m u t u a l l y h e l p i n g on e a n o t h e r for p u r p o s e s o f gai n i n th
e c o m m i s s i o n o f an y cri me .
2 . Th e sam e rule shall appl y wi t h resp ec t to an y aggra-
vati n g c i r c u m s t a n c e s i n h e r e n t in th e crim e to su c h a d eg re e
that i t mus t of n e c e s s i t y a c c o m p a n y th e c o m m i s s i o n thereof.
3. Aggravatin g o r mitigatin g circumstance s whic h
aris e from th e mora l a t t r i b u t e s o f th e offen d er, o r fro m hi s
p r i v at e r e l a t i o n s wi t h th e o f f e n d e d p arty , o r fro m an y ot h e r
p e r s o n a l c a u s e , sh all onl y se rv e t o a g g r a v a t e o r m i t i g a t e th e
li ab il i ty o f th e p r i n c i p a l s , a c c o m p l i c e s , an d a c c e s s o r i e s a s t o
w h o m su c h c i r c u m s t a n c e s ar e a t t e n d a n t .
4 . Th e c i r c u m s t a n c e s w h i c h c o n s i s t i n th e m a t e r i a l
e x e c u t i o n o f th e act, o r i n th e m e a n s e m p l o y e d t o a c c o m p l i s
h it, shall serv e t o a g g r a v a t e o r m i t i g a t e th e l i ab i l i t y o f t h o s e
p e r s o n s onl y wh o ha d k n o w l e d g e o f t h e m a t th e ti m e o f th e
e x e c u t i o n o f th e ac t o r t h e i r c o o p e r a t i o n t h e r e i n .
5. . H ab i t u a l d e l i n q u e n c y sh al l h av e th e f o l l o w i n g
ef- fects:
( a ) U p o n a thi r d c o n v i c t i o n , th e c u l p r i t sh al l b e sen -
t e n c e d t o th e p e n a l t y p r o v i d e d b y la w for th e las t c r i m e o f
w h i c h h e b e fo u n d gu i l t y an d t o th e a d d i t i o n a l p e n a l t y o f
prision correccional in it s m e d i u m an d m a x i m u m p e r i o d s ;
( b ) U p o n a fo u r t h c o n v i c t i o n , th e c u l p r i t shal l sen -
t e n c e d t o th e p e n a l t y p r o v i d e d for th e las t c r i m e o f w h i c h h
e be fo u n d gu il t y an d to th e a d d i t i o n a l p e n a l t y of prision
mayor i n its m i n i m u m an d m e d i u m p e r i o d s ; an d
( c ) U p o n a fifth or a d d i t i o n a l c o n v i c t i o n , th e c u l p r i t
sh all b e s e n t e n c e d t o th e p e n a l t y p r o v i d e d for th e las t c r i m
e o f w h i c h h e b e fo u n d gu i l t y an d t o th e a d d i t i o n a l p e n a l t y o f
mayor in it s m a x i m u m p e r i o d to reclusion temporal in its
mini mu m period .

N o t w i t h s t a n d i n g th e p r o v i s i o n s o f thi s a r t i c l e , th e tota
l o f th e tw o p e n a l t i e s t o b e i m p o s e d u p o n th e of fe n d er , i n con
- formi t y h e r e w i t h , shal l i n n o cas e e x c e e d 3 0 y e a r s .

709
 EFFECTS OF MITIGATING OR AGGRAVATING Art. 62
CIRCUMSTANCES, ETC.

Fo r th e p u r p o s e s o f thi s arti cl e , a p e r s o n shal l b e d e e m e

d t o b e h a b i t u a l d e l i n q u e n t , i f w i t h i n a p e r i o d o f te n
y e a r s fro m th e dat e o f hi s r e l e a s e o r las t c o n v i c t i o n o f th e
c r i m e s of s e r i o u s or l es s s e r i o u s p h y s i c a l i n j u r i e s , robo,
hurto, estafa,
or falsification, he i s fo u n d g u i l t y of an y of sai d c r i m e s a thi r d
ti m e or (As amended by Republic Act No. 7659.)

Effect of the attendance of aggravating or mitigating circum-

stances or of habitual delinquency.
Aggravating circumstances (generic and specific) have the
effect of increasing the penalty, without, however, exceeding
the maximum provided by law.
2. Mitigating circumstances have the effect of diminishing
the
3. Habitual delinquency has the effect, not only of increas-
ing the penalty because of recidivism which is generally
implied in habitual delinquency, but also of imposing an
additional penalty.

Rules regarding aggravating and mitigating circumstances:

Par . 1 -
Aggravating circumstances which (1) in themselves constitute
a crime especially punished by law or which (2) are included by the
law in defining a crime and prescribing the penalty therefor are not
to be taken into account to increase the penalty.

Examples:
Wh ic h in t h e m s e l v e s c o n s t i t u t e a cri me .
That the crime be committed "by means of fire" (Art.
14, par. 12), is not considered as aggravating in arson;
and that the crime be committed by means of "derailment
of a locomotive" (Art. 14, par. 12), is not considered as
aggravating in the crime described in Art. 330 known
as "Damages and obstruction to means of communica-
tion."
710
Art. 62 EFFECTS OF MITIGATING OR AGGRAVATING
CIRCUMSTANCES, ETC.

Art. 330 punishes the act of damaging any railway

resulting in derailment of cars.
(2) Whic h ar e i n c l u d e d by la w in a cri me .
That the crime was committed in the dwelling of the
offended party is not aggravating in robbery with force upon
things (Art. 299); abuse of confidence is not aggravating in
qualified theft committed with grave abuse of confidence.
(Art. 310)
Neither can the aggravating circumstance that the
crime was committed by means poison (Art. 14, par. 12)
be considered in the crime of murder committed by means
of poison, since using poison to kill the victim is included
by law in defining the crime of murder. (Art. 248, par. 3)

Whe n m a x i m u m o f th e p e n a l t y shal l b e i m p o s e d .
The maximum of the penalty shall be imposed in the following
cases:
When in the commission of the crime, advantage was taken
by the offender of his public position;
2. If the offense was committed by any person who belongs
to an crime group.

What i s a n crim e group ?

An crime group means a group of two or

more persons collaborating confederating or mutually helping one
another for purposes of gain in the commission of any crime.

Par . 2 -

The same rule applies with respect to aggravating circumstances

which are inherent in the crime.
Example: Evident premeditation is inherent in robbery and
theft. (U.S. vs. Castroverde, 4 Phil. 246, 248)

Par . 3 -

Aggravating or mitigating circumstances which arise from (1)

the moral attributes of the offender, or (2) from his private relations

711
 EFFECTS OF MITIGATING OR AGGRAVATING Art. 62
CIRCUMSTANCES, ETC.

with the offended party, or (3) from any other personal cause, serve
to aggravate or mitigate the liability of the principals, accomplices
and accessories as to whom such circumstances are attendant.

Examples:
F ro m th e mo ra l a t t r i b u t e s o f th e offen d er:
A and B killed A acted with evident premeditation,
and B with passion and obfuscation.
The circumstances of evident premeditation and
passion and obfuscation arise from the moral attributes
of the offenders. Evident premeditation should affect
and aggravate only the penalty for A, while passion and
obfuscation will benefit B only and mitigate his liability.
Note: The states of their minds are different.
(2) Fro m hi s p ri va t e r e l a t i o n s w i t h th e of fe n d e d party:
A and C inflicted slight physical injuries on B. A is
the son of B. C is the father of B. In this case, the alterna-
tive circumstance of relationship, as aggravating, shall be
taken into account against A only, because he is a relative
of a lower degree than the offended party, B. Relationship
is mitigating as regards he being a relative of a higher
degree than the offended party, B.
Also, if A assisted the wife of B in killing the latter,
only the wife is guilty of parricide and A for homicide or
murder, as the case may be. (People vs. Bucsit, 43 Phil.
184, 185; People vs. Patricio, 46 Phil. 875, 879)
V, a confidential clerk in the American Express Co.,
learned of the description of the turns of the combination of
his employer's safe. B cooperated as accomplice in the com-
mission of the crime of qualified theft by V. It was held that
the qualifying circumstance of breach of confidence which
in the case justifies the imposition of a penalty
one degree (now two degrees) higher than that prescribed for
simple theft does not apply to B who was not in confidential
relations with the offended party and who therefore should
be punished as an accomplice in the crime of simple theft.
(People vs. Valdellon, 46 Phil. 245, 252.)

712
Art. 62 EFFECTS OF MITIGATING OR AGGRAVATING
CIRCUMSTANCES, ETC.

Note: This ruling holds true even if there was conspiracy

between V and B. The rule that in conspiracy the
act of one is the act of all, does not mean that the
crime of one is the crime of

(3) Fro m an y o th e r p e r s o n a l cau se :

A and B committed a crime. A was under 16 years of
age and B was a recidivist.

Par . 4 -
The circumstances which consist (1) in the material execution
of the act, or (2) in the means employed to accomplish it, shall serve
to aggravate or mitigate the liability of those persons only who had
knowledge of them at the time of the execution of the act or their
cooperation therein.

Examples:
(1) M a t e r i a l e x e c u t i o n of th e act:
A, as principal by induction, B, and C agreed to kill
D. B and C killed D with treachery, which mode of com-
mitting the offense had not been previously agreed upon
by them with A. A was not present when B and C killed D
with treachery.
The aggravating circumstance of treachery should not
be taken into account against A, but against B and C only.
(People vs. De Otero, 51 Phil. 201) But if A was present
and had knowledge of the treachery with which the crime
was committed by B and C, he is also liable for murder,
qualified by treachery.
The qualifying circumstance of treachery should not be
considered against the principal by induction when he left
to the principal by direct participation the means, modes or
methods of the commission of the felony. (U.S. vs.
23 Phil. 81 , 96)

(2) M e a n s t o a c c o m p l i s h th e cr i m e :
A ordered B to kill B invited C to eat with him.
B mixed poison with the food of C, who died after he had
eaten the food. A did not know that B used poison to kill

713
 EFFECTS OF MITIGATING OR AGGRAVATING Art. 62
CIRCUMSTANCES, ETC.

In this case, the aggravating circumstance that the crime

be committed by means of poison is not applicable to A.

There is no mitigating circumstance relating to the means

employed in the execution of the crime.
Insofar as relates to the means employed in the execution of the
crime and other acts incident to the actual perpetration thereof, it
is impossible to conceive of any mitigating circumstance which can
properly be considered as to one of the defendants, but is not equally
applicable to the others, even to those who had no knowledge of the
same at the time of the commission of the crime, or their cooperation
therein. (U.S. vs. 15 Phil. 470, 482, citing Groizard)

Difference between circumstances relating to the

persons participating in the crime and (2) circumstances
consisting in the material execution or means employed.
S induced four Igorots to kill B. S instructed them to hide in
the bushes until night when they should go to the house of B and
kill him. The crime was committed by the four Igorots as they were
instructed. The trial court considered the aggravating circumstance
of against the four Igorots but not against S.
Is the ruling of the trial court correct?
No, nocturnity being a circumstance in the material execution of
the deed and one of the means employed to accomplish its commission,
and S having knowledge of its use, should be considered against S.
The circumstances attending the commission of a crime relate
either (1) to the persons participating in the same, or (2) to its mate-
rial execution, or to the means employed.
The former (1), do not affect all the participants in the crime,
but only those to whom they particularly apply.
The latter (2), have a direct bearing upon the criminal liability
of all the defendants who had knowledge thereof at the time of the
commission of the crime, or of their cooperation therein. (U.S. vs.
Ancheta, supra)

though forming part of the conspiracy

of kidnapping, were not the ones who actually kidnapped the victim
at nighttime; and, under Art. paragraph 4, of the Revised Penal

714
Art. 62 EFFECTS OF HABITUAL DELINQUENCY

they are not bound or affected by the aggravating circumstance

of nighttime unless they knew that it would be availed of in accom-
plishing the offense, and there is no proof of said knowledge. (People
vs. Villanueva, 98 Phil. 339)

7s it necessary that there be proof of cooperation or participation with

regard to the act of
The aggravating circumstance of cruelty, while it may be con-
sidered as against one accused, may not be appreciated as against
another accused, where there is no sufficient proof of conspiracy in
the commission of the main act, nor is there proof of cooperation or
participation on the part of the latter with regard to the act of cruelty.
(People vs. Vocalos, 59 O.G. 693)
If cruelty is a means employed to accomplish the act, cooperation
or participation with regard to the act of cruelty is not necessary, as
only knowledge of it is required by Art. 62, par. 4, of the Code.
Note, however, that as cruelty is in Art. 14, par. 21 ,
the act of cruelty (the other wrong) is "not necessary the "com-
mission" of the crime. It would seem that cruelty consists neither
"in the material execution of the act" nor "in the means employed to
accomplish it." If this is the case, the ruling in People vs. Vocales is
correct, because Art. 62, par. 4, would not be applicable.

Par . 5 -

Wh o i s a h a b i t u a l d e l i n q u e n t ?
A person is a habitual delinquent if within a period of ten years
from the date of his (last) release or last conviction of the crimes of (1)
serious or less serious physical injuries, (2) robo, (3) hurto, (4) estafa,
or (5) falsification, he is found guilty of any of said crimes a third
time or oftener.

The crimes are specified in habitual delinquency.

The crimes mentioned in the definition of habitual delinquency
are: serious or less serious physical injuries (Arts. 263 and 265), rob-
bery (Arts. 293-303), theft (Arts. 308-311), estafa (Arts. 315-318), and
falsification (Arts. 170-174).
Thus, if A was convicted of and served sentence for theft in 1935;
after his release he committed homicide (Art. 249), was convicted in

715
 EFFECTS OF HABITUAL DELINQUENCY Art. 62

1937, and was released in 1951; and in 1957 was convicted of rape
(Art. 335); he is not a habitual delinquent even if he was convicted
the third time. Homicide and rape are not mentioned in the definition
of habitual delinquency. (See Molesa vs. Director of Prisons, 59 Phil.
406, 408)

If the accused is convicted of a violation of Art. 155 (Llobrera

vs. Director of Prisons, 87 Phil. 179), or of Art. 190 (People vs. Go Ug,
67 Phil. 202), he is not a habitual delinquent, even if he has previous
convictions of theft, estafa, robbery, falsification, or serious or less
serious physical injuries.

Requisites of habitual delinquency.

That the offender had been convicted of any of the crimes
of serious or less serious physical injuries, robbery, theft,
estafa, or falsification.
2. That after that conviction or after serving his sentence, he
again committed, and, within 10 years from his release or
first conviction, he was again convicted of any of the said
crimes for the second time.

That after his conviction of, or after serving sentence the

second offense, he again committed, and, within 10 years
from his last release or last conviction, he was again con-
victed of any of said offenses, the third time or oftener.

Computation of ten-year period.

With respect to the period of ten years, the law expressly men-
tions the defendant's last conviction or (last) release as the starting
point from which the ten-year period should be counted.
For instance, a person has the following criminal records:

Crimes Committed Date of Conviction Date of Release

Theft June, 1915 July, 1916
Estafa May, 1920 Oct., 1922
Attempted Robbery July, 1928 Aug., 1930
Theft 1937 Sept., 1940
Crime charged Oct., 1946

716
Art. 62 EFFECTS OF HABITUAL DELINQUENCY

With respect to the conviction for estafa in May, 1920, the start-
ing point would be the date of his conviction for theft, which is June,
1915, or the date of his release, which is July, 1916; and the date of
his conviction for estafa, which is May, 1920, or the date of release,
which is Oct. 1922, should be the starting point with reference to the
conviction for attempted robbery in July, 1928, etc.
The ten-year period should not be counted from the date of con-
viction for theft, which is June, 1915, or the date of release, which
is July, 1916, in relation to the last crime of which the offender was
found guilty in October, 1946, because June, 1915, or July, 1916, is
not the date of defendant's last conviction or last release. The date of
last conviction with respect to the crime charged is August, 1937, for
theft. The date of last release is September, 1940.
But if A was convicted of theft in 1920, of robbery in 1922, of
swindling in 1935, and of theft again in 1936, only the crime of swin-
dling, of which he was convicted in 1935 can be taken into account
in the imposition of the penalty for theft in 1936 and, therefore, A is
not a habitual delinquent but only a recidivist.

Why the starting point is date of release or date of last con-

viction.
Suppose, a convict has the following criminal records:

Offenses Date of Date of Date of

Commission Conviction Release
Theft Aug., 1914 April, 1915 Sept., 1915
Estafa Nov., 1920 April, 1923 April, 1925
Robbery July, 1932 April, 1934

Note that as regards the crime of estafa committed in Novem-

ber, 1920, the starting point may be the date of conviction for theft
(April, 1915) or the date of release (Sept., 1916), because between
April, 1923 and April, 1915 there is only a difference of 8 years or
between April, 1923 and Sept., 1916, there is only a difference of 7
years. But as regards robbery committed in July, 1932, if we have to
make the date of last conviction (April, 1923) as the starting point
to determine the ten-year period to April, the date when the
offender was found guilty of robbery, there is already a difference of
 EFFECTS OF HABITUAL DELINQUENCY Art. 62

years. In this case, it seems that he is not a habitual delinquent.

But the law says the date of his release or last So,
we can count the ten-year period from April, 1925. The difference will
be only 9 years. He is then a habitual delinquent.
If the starting point is only the date of last conviction, there
will be a case where the offender cannot be considered a habitual
delinquent. Suppose that in connection with the three crimes herein-
before mentioned, the offender was sentenced one after another to
12 years for each, even if he should commit the subsequent offense
immediately after release, he cannot be a habitual delinquent.

"The culprit shall be sentenced to the penalty provided by

law for the last crime of which he be found guilty."
Thus, if the accused is tried for robbery and previously he was
convicted of theft and estafa, robbery is the last and if found
guilty, the penalty for robbery shall be imposed upon him. In view of
his two previous convictions of theft and estafa, he will be declared
a habitual delinquent upon his conviction of robbery and he will be
sentenced also to the additional penalty of correccional in its
medium and maximum periods.

Additional penalty for habitual delinquency:

1. Upon a third conviction, the culprit shall be sentenced to
the penalty provided by law for the last crime of which
he is found guilty and to the additional penalty of
correccional in its medium and maximum periods.
2. Upon a fourth conviction, the culprit shall also be sentenced
to the additional penalty prisidn mayor in its minimum
and medium periods.
Upon a fifth or additional the culprit shall also
be sentenced to the additional penalty of prisidn mayor in
its minimum period to reclusion temporal in its minimum
period.

Total penalties not to exceed 30 years.

The total of the two penalties shall not exceed 30 years. The
two penalties refer to (1) the penalty for the last crime of which he
is found guilty and (2) the additional penalty for being a habitual
delinquent.
717
Art. 62 EFFECTS OF HABITUAL DELINQUENCY

Reason for imposing additional penalty in habitual delinquency.

If, after undergoing punishment for the first time for any of
those crimes, instead of abandoning his ways he goes on to commit
again any of them, this second offense is punished with the maximum
period of the penalty provided by law. He may be a recidivist.
If such graver punishment for committing the second offense
has proved insufficient to restrain his proclivities and to amend his
life, he is deemed to have shown a dangerous propensity to crimes.
Hence, he is punished with a severer penalty for committing any
of those crimes the third time or oftener. An additional penalty is
imposed on him.

Purpose of the law in imposing additional penalty.

The purpose of the law in imposing additional penalty on habitual
delinquents is to render more effective social defense and the reforma-
tion of (People vs. Abuyen, 52 Phil. 722, 725)

Subsequent crime must be committed AFTER CONVICTION

of former crime.
Thus, although the accused was six times previously convicted
of estafa, yet if (1) the second crime was committed before his first
conviction, and (2) the fourth before his third conviction, and (3) the
fifth and sixth were committed on the same day, the six convictions
are equivalent to three only. (People vs. Ventura, 56 Phil. 1, 5-6)

Illustration:
Date of Date of
Offenses Commission Conviction

(1) Theft January, 1920 October, 1921

(2) Estafa September, 1921 December, 1921
(3) Robbery January, 1930 March, 1931
(4) Falsification February, 1931 December, 1931
(5) Serious phys-
ical injuries Nov. 1, 1932 Dec. 4, 1932
(6) Less serious
physical injuries Nov. 1, 1932 Dec. 7, 1932

718
 EFFECTS OF HABITUAL DELINQUENCY Art. 62

Note that when the crime of estafa was committed in Septem-

ber, 1921, the offender was not yet convicted of theft because the
date of conviction is October, 1921. When the crime of falsification
was committed in February, the offender was not yet convicted
of robbery, because the date of conviction in the crime of robbery is
March, 1931.
In order that an accused may be legally deemed a habitual
criminal, it is necessary that he committed the second crime after his
conviction of, or after service of sentence for, the first crime; that he
committed the third crime after his conviction of, or after service of
sentence for, the second crime; the fourth crime, after his conviction
of, or after service of sentence for, the third crime, etc. (People vs.
Santiago, 55 Phil. 266, 272)

In the information must be alleged:

1. The dates of the commission of the previous crimes.
2. The date of the last conviction or release.
3. The dates of the other previous convictions or releases.
(People vs. Venus, 63 Phil. 435, 440)
The allegation of habitual delinquency in the information should
be, as follows:
That the accused is a habitual delinquent, under the provisions
of paragraph 5 of Art. 62 of the Revised Penal Code, having been
previously convicted of theft and estafa, to wit:

Previous Date of Date of Date of

Offenses Commission Conviction Release
Theft June 7, 1930 July 5, 1931 Oct. 3, 1931
Estafa April 9, 1935 Sept. 14, 1936 Dec. 14, 1937

Effect of plea of guilty when allegations are insufficient.

A plea of guilty to an information which fails to allege the dates
of commission of previous offenses, and of releases is not
an admission that the offender is a habitual delinquent, but only a
recidivist. (People 63 Phil. 92, 93-94; People vs. Flores,
63 Phil. 443, 444-445)

719
Art. 62 EFFECTS OF HABITUAL DELINQUENCY

Effect of failure to object to admission of decision showing dates of

previous convictions.
However, failure to allege said dates in the information is deemed
cured where the accused did not object to the admission of decisions
for previous offenses which show the dates of his convictions. (People
vs. Nava, C.A., 58 O.G. 4750)

Date of release is not absolutely necessary.

If the preceding conviction is less than 10 years from the date
of the conviction in the offense complained of, the date of last release
is not important, because the release comes after conviction. (People
vs. Tolentino, 73 Phil. 643 , 644)

Habitual delinquency distinguished from recidivism.

As to the crimes committed. In recidivism, it is sufficient
that the accused on the date of his trial, shall have been
previously convicted by final judgment of another crime
embraced in the same title of the Code; in habitual delin-
quency, the crimes are specified.
(2) As to the period of time the crimes are committed. In recidi-
vism, no period of time between the former conviction and
the last conviction is fixed by law; in habitual delinquency,
the offender is found guilty of any of the crimes specified
within ten years from his last release or last conviction.

(3) As to the number of crimes committed. In recidivism, the

second conviction for an offense embraced in the same title
of the Code is sufficient; in habitual delinquency, the accused
must be found guilty the third time or oftener of any of the
crimes specified. (People vs. 63 Phil. 750, 755)
(4) As to their effects. Recidivism, if not offset by a mitigating
circumstance, serves to increase the penalty only to the
maximum; whereas, if there is habitual delinquency, an
additional penalty is also imposed.

Rulings on habitual delinquency:

1. Ten-year period computed either from last conviction
or last The law on habitual delinquency does

720
 EFFECTS OF HABITUAL DELINQUENCY Art. 62

not contemplate the exclusion from the computation of

prior convictions those falling outside the ten-year period
immediately preceding the crime for which the defendant
is being tried, provided each conviction is followed by
another transgression within ten years from one conviction
to another. (People vs. Lacsamana, 70 Phil. People
vs. Rama, 55 Phil. 981 , 982-983)

Ten-year period is counted not to the date of commission

of subsequent offense, but to the date of conviction thereof
in relation to the date of his last release or last conviction.
(People vs. Morales, 61 Phil. 222, 224)

The definition of a habitual delinquent in the last

paragraph of Art. 62 says, "if within a period years
x x x, he is found guilty of any of said crimes a third time
or oftener."
Thus, if A was convicted of theft in 1920; after his
release he committed and was convicted of estafa in 1922;
was released on December 5, 1923; and on December 4,
1933, he committed robbery, and was convicted thereof
in January, 1934; he is not a habitual delinquent. The
reason for this is that when he was convicted of robbery
in January, 1934, more than 10 years had elapsed. The
period of ten years from December 5, 1923, should not be
counted up to the commission of robbery on December 4,
1933, but to the date of A's conviction thereof, which is
January, 1934.
When an offender has committed several crimes mentioned
in the definition of habitual delinquent, without being first
convicted of any of them before committing the others, he
is not a habitual delinquent. (People vs. Santiago, 55 Phil.
269-270)
Convictions on the same day or about the same time are
considered as one only. (People vs. Liong, 57 Phil. 839,
841-842) Convictions on March 3 and are considered
one only. (People vs. Lopido, C.A., 38 O.G. 1907)
The reason for this ruling lies in the fact that the
additional penalties fixed by law for habitual delinquency
are reformatory in character and that their application

721
Art. 62 EFFECTS OF HABITUAL DELINQUENCY

should be gradual, and this can be carried out only when

the second conviction takes place after the first or after
service of sentence for the first crime, etc. (People vs.
Santiago, supra, at
5. Crimes committed on the same date, although convictions
on different dates 29 and Sept. are considered
only one. (People vs. Albuquerque, 69 Phil. 608-609)
The reason for this ruling lies in the fact that until
the offender has served the additional penalty provided in
his case, and has committed or abstained from committing
another crime, it cannot be known if said additional penalty
has or has not reformed him. (People vs. Santiago, supra,
at 271)
6. Previous convictions are considered every time a new of-
fense is committed.
On February 12, 1935, defendant was convicted of
estafa. In said case, defendant's two previous convictions
were taken into consideration for the imposition of the
additional penalty. In April, 1935, defendant was also
found guilty of estafa committed on October and
his two previous convictions were also considered for the
imposition of the additional penalty. Defendant contended
that he could be sentenced only to one additional penalty
which was already imposed in the first case.
Held: The contention of defendant is untenable. Ruling
in People vs. Santiago, 55 Phil. 266, reversed. (People vs.
De la Rama, G.R. No. 43744 , Jan. 31 , 1936, 62 Phil.

972

The commission of any of those crimes need not be consum-

mated. He who commits a crime, whether it be attempted
or frustrated, subjectively reveals the same degree of de-
pravity and perversity as one who commits a consummated
crime. (People vs. Abuyen, 52 Phil. 722, 725-726)
8. Habitual delinquency applies to accomplices and acces-
sories. Their participation in committing those crimes
(serious or less serious physical injuries, robbery, theft,
estafa or falsification) repeatedly, whether as principals,
722
 EFFECTS OF HABITUAL DELINQUENCY Art. 62

accomplices or accessories, reveals the persistence in them

of the inclination wrongdoing, and of the perversity of
character that had led them to commit the previous crimes.
(People vs. San Juan, 69 Phil. 347, 349)
9. If one crime was committed during the minority of the
offender, such crime should not be considered for the
purpose of treating him as a habitual offender, because
the proceedings as regards that crime were suspended.
10. The imposition of the additional penalty prescribed by
law for habitual delinquents is mandatory. (People vs.
51 Phil. 857, 860-861)

The imposition of additional penalty is not discretion-

ary. (People vs. Navales, 59 Phil. 496, 497)
Modifying circumstances applicable to additional penalty.
In the case People vs. De Jesus, 63 Phil. 760, 764-
765, it was held that the additional penalty is subject
to the general rules prescribed by Art. 64, that is, that
such additional penalty is to be imposed in its minimum,
medium or maximum period according to the number and
nature of the modifying circumstances present. When the
law prescribed the additional punishment for habitual
delinquency in such form as to make it susceptible of
division into periods, it must have been for no other reason
than to take into account all the circumstances which
may exist in a given case with the end in view of avoiding
arbitrariness in the selection of the period in which the
punishment is to be imposed.

This case being the latest is controlling. The ruling

in this case upholds the dissenting opinion of Chief Justice
Avanceha and Justice Villamor in the Tanyaquin and
Sanchez cases.
12. Habitual delinquency is not a crime. It is simply a fact or
circumstance which, if present in a given case with the
other circumstances enumerated in Rule 5 of Art. gives
rise to the imposition of the additional penalties therein
prescribed. (People vs. De Jesus, supra, at 767; People vs.
Blanco, 85 Phil. 296, 297)

723
Art. 62 EFFECTS OF HABITUAL DELINQUENCY

13. Penalty for habitual delinquency is a real penalty that

determines jurisdiction. (People vs. Costosa, 70 Phil. 10,
11-12)
14. A habitual delinquent is necessarily a recidivist. (People
vs. Tolentino, 73 Phil. 643, 644)
Recidivism is inherent in habi tu al delinquency
and shall be considered as aggravating circumstance in
imposing the principal penalty. (People vs. Espina, 62 Phil.
607, 608; People vs. De Jesus, 63 Phil. 760, 764)
Reason for the rule:
The purpose of the law in imposing additional penalty
on a habitual delinquent is to punish him more severely.
If in imposing the additional penalty, recidivism could not
be considered as aggravating circumstance in fixing the
principal penalty, the imposition of the additional penalty
would make the penalty lighter, instead of more severe,
contrary to the purpose of the law. (People vs. Tolentino,
supra)

Illustration:
A was previously twice convicted of theft within ten
years. Within ten years after service of his last sentence,
he was convicted of robbery under Art. 294, subsection 2,
of the Code, punished by reclusion temporal in its medium
period to reclusion perpetua.

Being a habitual delinquent, A should suffer 2 years, 4

months, and 1 day of prision correctional, as an additional
penalty.

Without taking into consideration the aggravating

circumstance of recidivism, the principal penalty to be
imposed would be 17 years, 4 months and 1 day of reclusion
temporal, the medium of the penalty prescribed for the
crime. If we add 2 years, 4 months and 1 day (additional
penalty) to the principal penalty, the total would be 19
years, 8 months and 2 days.
But if the additional penalty is not imposed and
recidivism is taken into consideration in fixing the

724
 RULES FOR THE APPLICATION OF Art. 63
INDIVISIBLE PENALTIES

penalty, it would be reclusion perpetua, which is the

maximum of the penalty prescribed by law.
But in imposing the additional recidivism is not
aggravating because inasmuch as recidivism is a qualifying
or inh eren t circu mstance in habitual delinquency, it
cannot be considered an aggravating circumstance at the
same time. Consequently, the additional penalty to be
imposed upon the accused must be the minimum of that
prescribed by law as, with the exception of recidivism, no
other circumstance or fact justifying the imposition of said
penalty in a higher period has been present. (People De
Jesus, 63 Phil. 760, 766-767; People vs. Tolentino, 73 Phil.
643 , 644)

Can a convict be a habitual delinquent without being a re-

cidivist?
Yes, when no two of the crimes committed are embraced in the
same title of the Code.

Illustration:
A was convicted of falsification in 1920 and served sentence
in the same year. Then, he committed estafa, convicted, and served
sentence in 1925. His last crime was physical injuries committed in
1930. Falsification is a crime against public interests; estafa, against
property; physical injuries, against person.

The imposition of additional penalty for habitual

delinquency is constitutional.
It is neither an ex post facto law nor an additional punishment
for former crimes. It is simply a punishment on future crimes, the
penalty being enhanced on account of the criminal propensities of the
accused. (People vs. Montera, 55 Phil. 933-934)

Art. 63 . Rules for the application of indivisible penalties. — In all

case s in w h i c h th e la w p r e s c r i b e s a si n gl e i n d i v i si b l e
p en al ty , i t shall b e ap p l i e d b y th e co u r t s r e g a r d l e s s o f an y
m i t i g a t i n g o r a g g r a v a t i n g c i r c u m s t a n c e s tha t ma y h av e
a t t e n d e d th e c o m m i s s i o n o f th e deed .

725
 Art. 63 RULES FOR THE APPLICATION OF
INDIVISIBLE PENALTIES

I n all c a s e s i n w h i c h th e la w p r e s c r i b e s a p e n a l t y
c o m p o s e d of tw o i n d i vi si b l e p en a l t i e s th e f ol l o wi n g rul es shall
b e o b s e r v e d i n th e a p p l i c a t i o n thereof:
Whe n i n th e c o m m i s s i o n o f th e d ee d th er e i s p r e s e n
t onl y on e a g g r a v a t i n g c i r c u m s t a n c e , th e g r e a t e r p e n a l t y
shall b e ap p l i e d .
2 . Whe n th er e ar e n e i t h e r m i t i g a t i n g no r a g g r a v a t i n g
c i r c u m s t a n c e s i n th e c o m m i s s i o n o f th e d eed , th e l e s s e r pen -
alty shall b e a p p l i e d .
3 . Whe n th e c o m m i s s i o n o f th e ac t i s a t t e n d e d b y som e
m i t i g a t i n g c i r c u m s t a n c e an d th er e i s n o a g g r a v a t i n g c i r cu m
- s t a n c e , th e l es se r p e n a l t y shal l b e a p p l i e d .
4. bot h m i t i g a t i n g an d a g g r a v a t i n g c i r c u m s t a n c e s
a t t e n d e d th e c o m m i s s i o n o f th e act, th e cou rt s shall r e a s o n a b l
y al l o w th e m t o offset on e a n o t h e r i n c o n s i d e r a t i o n o f th ei r
n u m b e r an d i m p o r t a n c e , fo r th e p u r p o s e o f a p p l y i n g th e
p en al t y i n a c c o r d a n c e wi t h th e p r e c e d i n g ru l es , a c c o r d i n g t
o th e resu l t o f su c h c o m p e n s a t i o n .

Outline of the rules.

1. When the penalty is single it shall be applied
regardless of any mitigating or aggravating circumstances.
2. When the penalty is composed of two indivisible penalties, the
following rules shall be observed:
(a) When there is only one aggravating circumstance, the
greater penalty shall be imposed.
(b) Whe n ther e i s n e i t h e r m i t i g a t i n g nor a g g r a v a t i n g
circumstances, the lesser penalty shall be imposed.
(c) When there is a mitigating circumstance and no ag-
gravating ci rc u m st an ce , the lesser p en al ty shall be
imposed.
(d) When both mitigating and aggravating circumstances
are present, the court shall allow them to offset one an-
other.

726
 RULES FOR THE APPLICATION OF Art. 63
INDIVISIBLE PENALTIES

Art. 63 applies only when the penalty prescribed by the

Code is either one indivisible penalty or two indivisible
penalties.
Art. 63 does not apply when the penalty prescribed by the
Code is reclusion temporal in its maximum period to death, because
although this penalty includes the two indivisible penalties of death
and reclusion perpetua, it has three periods; namely, the minimum
(reclusion temporal maximum); the medium perpetua); and
the maximum (death).

In this case, Art. 64 shall apply.

Example of single and indivisible penalty.

In kidnapping and failure to return a minor (Art. 270) and in
rape (Art. 266-B), the penalty is reclusion perpetua, a penalty which
is single and indivisible.
Death as a single indivisible penalty is imposed for kidnapping
and serious illegal detention when the purpose of the offender is to
extort ransom (Art. 267, as amended by Rep. Act No. 7659) and for
rape with homicide. (Art. 266-B)

Example of two indivisible penalties.

Reclusion perpetua to death. This penalty is imposed for par-
ricide (Art. 246), robbery with homicide (Art. 294, par. 1), kidnapping
and serious illegal detention without intention to extort ransom (Art.
267), and rape committed with the use of a deadly weapon or by two
or more persons. (Art. 266-B)

When the penalty is composed of two indivisible

penalties, the penalty cannot be lowered by one degree, no
matter how many mitigating circumstances are present.
When there are two or more mitigating circumstances and
no aggravating circumstance, the court cannot proceed by analogy
to the provisions of subsection 5 of Art. 64 and impose the penalty
lower by one degree. (U.S. vs. Guevara, 10 Phil. 37, 38; U.S. vs.
Relador, 60 Phil. 593 , 603-604; People vs. 87 Phil. 658,
663-664)

In a case, the commission of the crime of parricide punishable

with reclusion perpetua to death was attended by the two mitigating
727
Art. 63 RULES FOR THE APPLICATION
OF INDIVISIBLE PENALTIES

circumstances of illiteracy and lack of intention to commit so grave

a wrong as that committed, without any aggravating circumstance.
The lower court imposed the penalty next lower, which is reclusion
temporal, applying Art. 64, paragraph No. 5.
Held: The penalty imposed is not correct. The rule applicable
in this case is found in Art. 63 and not in Art. 64. (U.S. vs. Relador,
supra)

Exceptio n —
When a privileged mitigating circumstance under Art. 68 or Art. 69
is present.
But if the circumstance present is a privileged mitigating cir-
cumstance under Art. 68 or Art. 69, since a penalty lower by one or
two degrees shall be imposed upon the offender, he may yet get a
penalty one or two degrees lower.
Thus, if a woman who was being boxed by her husband stabbed
him with a knife in the chest, causing his death, she is entitled to
a penalty one degree lower from reclusion perpetua to death. The
penalty one degree lower is reclusion temporal.

The penalty for the crime of rape is reclusion perpetua.

The accused being entitled to the privileged mitigating circumstance
of minority, the imposable penalty is reclusion temporal in its medium
period, absent any other mitigating or aggravating circumstance.
(People vs. Galang, G.R. No. 70713 , June 29, 1989, 174 SCRA 454,
460-462)

Moral value, not numerical weight, of circumstances

should prevail.
As regards paragraph No. 4 of Art. 63 , the moral value rather
than the numerical weight should prevail. (U.S. vs. 25 Phil.
U.S. vs. Antonio, 31 Phil. 205, 212; U.S. vs. Reguera, 41 Phil.
506, 521-522)

Mitigating circumstance is not necessary to impose

perpetua when the crime is punishable with two indivisible
penalties of perpetua to death.
The reason is that under Art. 63 , when the crime is penalized
with two indivisible penalties, reclusion perpetua to death, the lesser

728
 RULES FOR THE APPLICATION OF
Art. 64
DIVISIBLE PENALTIES

penalty should be imposed even when there is no mitigating circum-

stance present. (People vs. 91 Phil. 118, 122; People vs.
Laureano, 71 Phil. 530, 537)

Art. 64. Rules for the application of penalties which contain three
periods. — In c a s e s in w h i c h th e p e n a l t i e s p r e s c r i b e d by la w
c o n t a i n th re e p e r i o d s , w h e t h e r i t b e a s i n gl e d i v i s i b l e p e n a l t
y o r c o m p o s e d o f t h r e e d i f fe r en t p e n a l t i e s , e ac h on e o f w h i c h
form s a p er i o d i n a c c o r d a n c e w i t h th e p r o v i s i o n s o f A rt i c l e
s 7 6 an d 77, th e c o u r t s sh al l o b s e r v e for th e a p p l i c a t i o n o f th e
p e n a l t y th e f o l l o w i n g r u l es , a c c o r d i n g t o w h e t h e r th er e ar
e o r ar e n o m i t i g a t i n g o r a g g r a v a t i n g c i r c u m s t a n c e s :
Whe n th er e ar e n e i t h e r a g g r a v a t i n g no r m i t i g a t i n g
c i r c u m s t a n c e s , the y sh al l i m p o s e th e p e n a l t y p r e s c r i b e d b
y la w i n its m e d i u m p e r i o d .
2 . Whe n onl y a m i t i g a t i n g c i r c u m s t a n c e i s p r e s e n t in
th e c o m m i s s i o n o f th e act, th e y shal l i m p o s e th e p e n a l t y i
n its m i n i m u m p e r i o d .
3 . Wh e n on l y a n a g g r a v a t i n g c i r c u m s t a n c e i s p r e s e n
t i n th e c o m m i s s i o n o f th e act, t h e y shal l i m p o s e th e p e n a l t y i
n its m a x i m u m p e r i o d .
4 . Wh e n b o t h m i t i g a t i n g an d a g g r a v a t i n g c i r c u m -
s t a n c e s ar e p r e s e n t , th e c o u r t sh al l r e a s o n a b l y offset t h o s
e o f on e cl as s a g a i n s t th e o t h e r a c c o r d i n g t o t h e i r r e l a t i v e
weight .
5 . Wh e n t h e r e ar e tw o o r m o r e m i t i g a t i n g c i r c u m -
s t a n c e s an d n o a g g r a v a t i n g c i r c u m s t a n c e s ar e p r e s e n t , th e
cour t shall i mp o s e th e p e n a l t y nex t l o w e r t o tha t p r e s c r i b e
d b y law , i n th e p er i o d tha t i t ma y d e e m a p p l i c a b l e ,
a c c o r d i n g t o th e n u m b e r an d n a t u r e o f su c h c i r c u m s t a n c e s .
6. . Wh at ev er ma y be th e n u m b e r an d n atu r e of th e
ag- gravati n g c i r c u m s t a n c e s , th e cou rt s shall not i mp os e a
greater p en al ty tha n that p r e s c r i b e d b y law, i n its m a x i m u m
period.
7. . With in th e l i mi t s of eac h p eri od , th e cou rt s
shall d e t e r m i n e th e e xt en t o f th e p e n a l t y a c c o r d i n g t o th e
729
n u mb e r

730
Art. 64 RULES FOR THE APPLICATION
OF DIVISIBLE PENALTIES

an d natu r e o f th e a g g r a v a t i n g an d m i t i g a t i n g c i r c u m s t a n c e s
an d th e gr ea te r o r l e ss e r e x t e n t o f th e evil p r o d u c e d b y th e
crime.

Art. 64 applies only when the penalty has three periods.

Thus, Art. 64 applies when the penalty prescribed by law for
the offense is temporal, mayor, prisidn correccional,
arresto mayor, arresto menor, or prisidn correccional to reclusidn tem-
poral, etc., because they are divisible into three periods (minimum,
medium and maximum).
When the law prescribes a single divisible penalty, as reclusidn
temporal for homicide, which according to Art. 76, is understood as
distributed in three equal parts, each part forms a period called
minimum, medium and maximum.
If the penalty is made up of three different penalties, as prisidn
correccional to reclusidn temporal, each forms a period according
to Art. 77. Thus, prisidn correccional will be the minimum; prisidn
mayor, the medium; and reclusidn temporal, the maximum. Prisidn
mayor is included because it is between prisidn correccional and
reclusidn temporal in Scale No. 1 of Art. 71 .

Outline of the rules:

1. No aggravating and no mitigating — medium period.
2. Only a mitigating — minimum period.
3. Only an aggravating — maximum period.
As no generic aggravating and mitigating circumstances were
proven in this case, the penalty for murder should be imposed in its
medium period or reclusidn perpetua. The death penalty imposed by
the trial court was not warranted. (People vs. Toling, No. L-27097,
Jan. 17, 1975, 62 SCRA 17, 35)

The Revised Penal Code provides that when the penalties

prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, when
neither aggravating nor mitigating circumstances attend, the penalty
prescribed by law shall be imposed in its medium period. (Taer vs.

731
 RULES FOR THE APPLICATION OF
Art. 64
DIVISIBLE PENALTIES

Court of Appeals, G.R. No. 85204, June SCRA

607; People vs. Centeno, G.R. No. 33284, April 20, 1989, 172 SCRA
607, 612)

Illustrations 2 and 3:
A is con vi cted of homi ci d e p u n i sh a b l e by
temporal, which has three periods (minimum, medium, and
maximum).
a. If there is no mitigating or aggravating circumstance — the
penalty is reclusidn temporal medium (14 years, 8 months
and 1 day).
If A pleaded guilty and there is no aggravating circumstance
to offset the mitigating circumstance of plea of guilty, the
penalty is reclusidn temporal minimum (12 years and 1
day).
If A committed the crime of homicide in the dwelling of the
deceased, and there is no mitigating circumstance to offset
the aggravating circumstance of dwelling, the penalty to be
imposed on him is reclusidn temporal maximum (17 years,
4 months and 1 day).
When there are two (2) aggravating circumstances and
there is no mitigating circumstance, the penalty prescribed
by law for the crime should be imposed in its maximum
period. (People vs. Mateo, G.R. Nos. 53926-29, Nov. 13,
1989, 179 SCRA 303 , 324)
Under Article 248 of the Revised Penal Code, the
penalty for murder is reclusidn temporal in its maximum
period to d e at h . Ther e b ei n g only one m i t i g a t i n g
circumstance and no aggravating circumstance to offset
the same, the imposable penalty is the minimum pursuant
to Article 64, paragraph 2, of the same Code, which is the
maximum period of reclusidn temporal. The Indeterminate
Sentence Law applies which provides for a minimum term
within the range of the penalty next lower in degree to be
fixed in any of its periods in the discretion of the court.
Under Article 61 , paragraph 3, of the same Code, when
the penalty prescribed for the crime is composed of one
or two indivisible penalties, as in this case, the penalty

732
64 RULES FOR THE APPLICATION
OF DIVISIBLE PENALTIES

next lower in degree shall be composed of the medium and

minimum periods of the proper divisible penalty and the
maximum of that immediately following in the scale. The
penalty next lower in degree in the instant case ranges
from the maximum of mayor to the medium degree
of temporal. (People vs. No. L-30956,
Nov. 23, 1971, 42 SCRA 238, 248-249)
When there are aggravating and mitigating — the court shall
offset those of one class against the other according to their
relative weight.

Illustration:
A committed homicide in the nighttime, purposely sought
for by him and which facilitated the commission of the crime. He
surrendered to the mayor of the town and when tried pleaded
guilty to the charge.
One mitigating circumstance (either voluntary surrender
or plea of guilty) will offset the aggravating circumstance of
nighttime.
The remaining mitigating circumstance will result in the
imposition of the minimum period of the penalty of reclusidn
temporal, the penalty for homicide.
The m i t i g a t i n g ci rc u m st an ce mus t be ordinary, not
privileged; the aggravating circumstance must be generic or
specific, not qualifying or inherent.
A qualifying circumstance (treachery) cannot be offset
by a generic mitigating circumstance (voluntary surrender).
(People vs. Abletes, No. L-33304, July 58 SCRA 241 ,
247-248)
Two or more mitigating and no aggravating — penalty next
lower, in the period applicable, according to the number and
nature of such circumstances.
The penalty for the offense is reclusidn temporal maximum
to reclusidn perpetua. (Par. 4, Art. 217, RPC, as amended by RA
That penalty should be lowered by one degree because of
the presence of two mitigating So, the maximum
of the indeterminate penalty should be taken from prisidn

733
 RULES FOR THE APPLICATION OF
Art. 64
DIVISIBLE PENALTIES

mayor maximum to temporal medium. (Par. 5, Art. 64,

RPC) And the minimum penalty should be taken from prision
correccional maximum to prisidn mayor medium. (Ramirez vs.
Sandiganbayan, No. 56441 , July SCRA 709, 710-
711)
Any or both of the two mitigating circumstances should
not be considered for the purpose of fixing the proper penalty
to be imposed, since they were already taken into account in
reducing the penalty by one degree lower. (Basan vs. People,
No. L-39483, Nov. 29, 1974, 61 SCRA 275, 277)

Question:
A was once convicted by final judgment of the crime of
serious physical A now committed homicide with three
mitigating circumstances. Is A entitled to a penalty one degree
lower?
No, because there is an aggravati n g circumstance of
recidivism. Physical injuries and homicide are embraced in the
same title of the Revised Penal Code. In this case, paragraph 4
applies.
No penalty greater than the maximum period of the penalty
prescribed by law shall be imposed, no matter how many ag-
gravating circumstances are present.
Thus, even if four generic aggravating circumstances
attended the commission of homicide without any mitigating
circumstance, the court cannot impose the penalty of reclusion
perpetua, which is higher than reclusidn temporal, the penalty
for homicide.
Whatever may be the number and nature of the aggravating
circumstances, the courts may not impose a greater penalty than
that prescribed by law in its maximum period. (Art. 64, par. 6,
Revised Penal Code; People vs. Manlolo, G.R. No. 40778, Jan.
26, 1989, 169 SCRA 394, 400-401)
The court can determine the extent of the penalty within the
limits of each period, according to the number and nature of the
aggravating and mitigating circumstances and the greater or
lesser extent of the evil produced by the crime.

734
Art. 64 RULES FOR THE APPLICATION OF
DIVISIBLE PENALTIES

Example:
A crime punished with arresto mayor was committed
with the concurrence of three circumstances, two aggravating
and one mitigating. Under rule 4, the penalty arresto mayor
in its maximum period (4 and 1 day to 6 shall be
imposed.
Under Rule the court can impose an intermediate penalty
between 4 months and 1 day to 6 months. It may impose 4
months and 1 day, 5 months, or 6 months.

The court has discretion to impose the penalty within the

limits fixed by law.
The penalty prescribed by the Code for the offense is prision
mayor or 6 years and 1 day to 12 years. The court imposed 8 years
and 1 day as the maximum of the indeterminate penalty. The defense
contended that the court should have imposed a maximum lower than
8 years. Is this contention correct?
The contention of the defense is not correct. Where a penalty
imposed is within the limits fixed by law, the charge that it was
excessive is without foundation, as the court imposing the penalty
may exercise discretion in its imposition. (People vs. Recto, et
CA-G.R. No. December 13, 1954)

The court imposed the medium period of mayor. The

medium period of that penalty is from 8 years and 1 day to 10
years.

"Extent of the evil produced."

V deposited in a bank certain checks of no value and later know-
ing that he had no money in said bank, issued checks against it. V
was convicted of estafa.

How would you apply paragraph 7 of this article?

Taking into account the extent of the injury produced by the
offense which, in a certain degree, disturbed the economic life of a
banking institution, it is proper, in accordance with Article 64, par.
7, to impose upon the accused, the maximum of the medium degree
of the penalty. (People vs. Velazco, 42 Phil. 75, 81)

735
 RULES FOR THE APPLICATION OF Art. 64
DIVISIBLE PENALTIES

Art. 64 is not applicable when the penalty is indivisible or

prescribed by special law or
Art. 64 does not apply to (1) indivisible penalties, (2) penalties
prescribed by special laws, and (3) fines. As to Nos. (2) and (3), see
People vs. Ching Kuan, 74 Phil. 23.

In what cases are mitigating and aggravating circumstances

not considered in the imposition of penalty?
In the following cases:
1. When the penalty is single and indivisible. (Art. 63)
2. In felonies thru negligence. The rules for the application
of penalties prescribed by Article 64 are not applicable to
a case of reckless imprudence under Art. 365. (People vs.
C.A., 43 O.G. 2214; Art. 365)

3. The penalty to be imposed upon a Moro or other non-

Christian inhabitants. It lies in the discretion of the trial
court, irrespective of the attending circumstances. (Sec.
106, Code of Mindanao and People vs. Moro
88 Phil. 120, 124)

The term "non-Christian" refers not only to religious

belief but in a way to geograph ical area and, more
particularly, directly to Philippine natives of a low grade
of civilization. (De vs. Saito, 55 Phil. 831 , 838)
Sec. 106 does not apply to a Moro who has lived in
a Christian province for many years. (People vs. Salazar
alias Darquez, 105 Phil. 1058)
Acts Nos. 2798 and 2913 extended Sec. 106 to the
Mountain Province. (People vs. Tumbali, C.A., 39 O.G.
214; People vs. G.R. No. L-7250, March 31, 1955,
96 Phil. 972
4. When the penalty is only a fine imposed by an ordinance.
For violation of an ordinance, the accused was sen-
tenced to pay a fine of after a plea of guilty. Is he
entitled to a mitigating circumstance? No, because the
penalty imposed being only a fine, the rules established in

736
Art. 65 RULES IN CASES OF PENALTY NOT
COMPOSED OF THREE PERIODS

Arts. 63 and 64 cannot be applied. (People vs. Ching Kuan,

74 Phil. 23, 24)
5. When the penalties are prescribed by special laws.
vs. Respecia, 58 O.G. 458)

Art. 65 . Rules in cases in which the penalty is not composed of

three periods. — In c as e s in w h i c h th e p e n a l t y p r e s c r i b e d by la
w i s no t c o m p o s e d o f th re e p e r i o d s , th e c o u r t s shal l app l y th
e ru le s c o n t a i n e d i n th e f o r e g o i n g a rt i c l e s , int o th re
e eq u a l p o r t i o n s th e tim e i n c l u d e d i n th e p e n a l t y
p r e s c r i b e d , an d f o r m i n g on e p e r i o d o f e a c h o f th e t h r e e
portions .

Meaning of the rule.

1. Compute and determine first the three periods of the entire
penalty.
2. The time included in the penalty prescribed should be divided
into three equal portions, after subtracting the minimum (elimi-
nate the 1 day) from the maximum of the penalty.
3. The minimum of the minimum period should be the minimum
of the given penalty (including the 1 day).
4. The quotient should be added to the mi n i mu m prescribed
(eliminate the 1 day) and the total will represent the maximum of
the minimum period. Take the maximum of the minimum period,
add 1 day and make it the minimum of the medium period; then
add the quotient to the minimum (eliminate the 1 day) of the
medium period and the total will represent the maximum of the
medium period. Take the maximum of the medium period, add
1 day and make it the minimum of the maximum period; then
add the quotient to the minimum (eliminate the 1 day) of the
maximum period and the total will represent the maximum of
the maximum period.

Illustration of the computation when the penalty has three

periods.
Let us take as an example mayor which has a duration
of 6 years and 1 day to 12 years.
737
 RULES IN CASES OF PENALTY NOT Art. 65
COMPOSED OF THREE PERIODS

(2) Subtract the minimum (disregarding the 1 day) from the maxi-
mum, thus —
12 years - 6 years 6 years.

(3) Divide the difference by 3, thus —

6 years 3 2 years.

(4) Use the minimum of 6 years and 1 day of mayor as

the minimum of the minimum period. Then add 2 years to the
minimum (disregarding the 1 day) to get the maximum of the
minimum period. Thus — we have 8 years as the maximum
of the minimum period. The range of the minimum period is,
therefore, 6 years and 1 day to 8 years.
(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; we have — 8 years and 1
day. Then add 2 years to the minimum of the medium period
(disregarding the 1 day) to get the maximum of the medium
period. The range of the medium period is, therefore, 8 years
and 1 day to 10 years.
(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 — 10 years and 1
day. Then add 2 years to the minimum of the maximum period
(disregarding the 1 day) to get the maximum of the maximum
period. Hence, the range of the maximum period is — 10 years
and 1 day to 12 years.
See Art. 76. The computation is not followed in the division of
arresto mayor.

Illustration of the computation when the penalty is not com-

posed of three periods.
Note that Art. 65 provides for the rule to be applied when
the penalty prescribed by the Code is not composed of three pe-
riods.
Prision correccional in its medium and maximum periods is
the penalty prescribed by the Code for infanticide committed by the
mother to conceal her dishonor. (Art. 255, par. 2)

738
Art. 65 RULES IN CASES OF PENALTY NOT
COMPOSED OF THREE PERIODS

Computation:
The duration prisidn correccional is 6 months and 1 day to 6
years. 6 years - 6 months 5 years and 6 months = 1 year and
10 months.
Min. — 5 months and 1 day to 2 years and 4 months.
Med. — 2 years, 4 months and 1 day to 4 years and 2
months.
Max. — 4 years, 2 months and 1 day to 6 years.

Since the duration of the penalty of correccional in its

medium and maximum periods is 2 years, 4 months and 1 day to 6
years, the time included in that penalty should be divided into three
equal portions. Thus —

5 years and 12 mos. (or 6

2 years and 4 mos.
3) 3 years and 8 mos. (1 2 mos. and 20 days)
3 years 6 mos.
2 mos. or 60 days

The duration of each portion after dividing the duration of the

penalty into three equal portions is 1 year, 2 months and 20 days.
Since the minimum prescribed by law is 2 years and 4 months,
and the duration of each portion is 1 year, 2 months and 20 days, the
time comprised in the minimum is from 2 years, 4 months and 1 day
to 3 years, 6 months and 20 days. Computation: The minimum of the
minimum is 2 years, 4 months and 1 day. To obtain the maximum
of the minimum we have to add 1 year, 2 months and 20 days to 2
years and 4 months. Therefore, the maximum of the minimum is 3
years, 6 months and 20 days, computed as follows:

2 years, 4 months (and 1 day) — The minimum of the minimum.

1 year, 2 months and 20 days — The duration of each portion.

3 years, 6 months and 20 days — The maximum of the minimum.

To obtain the minimum of the medium, add 1 day to the maxi-

mum of the minimum and make it the minimum of the medium.

739
 IMPOSITION OF FINES Art. 66

Then, to obtain the maximum of the medium, we compute as

follows:

3 6 m. and 21 d. — The minimum of the medium.

1 2 m. and 20 d. — The duration of each portion.
4 9 m. and 10 d. — The maximum of the medium.

To obtain the minimum of the maximum, we have to add 1 day

to the maximum of the medium and make it the minimum of the
maximum.
To obtain the maximum of the maximum, we have to add 1 year,
2 months and 20 days to 4 years, 9 months and 11 days, as follows:

4 9 and 11 d. — The minimum of the maximum.

1 2 and 20 d. The duration of each portion.

6 years The maximum of the maximum.

Hence, the maximum is from 4 years, 9 months, and days to

6 years.

Art. 66 . Imposition of fines. — In i m p o s i n g fines th e c o u r t s

ma y fi x an y a m o u n t w i t h i n th e l i m i t s e s t a b l i s h e d b y law; i n
f i x i n g th e a m o u n t i n e a c h cas e a t t e n t i o n shal l b e g i v en , no t
onl y t o th e m i t i g a t i n g an d a g g r a v a t i n g c i r c u m s t a n c e s , bu t
mor e p a r t i c u l a r l y t o th e w e a l t h o r m e a n s o f th e c u l p ri t.

Outline of this provision:

The court can fix any amount of the fine within the limits estab-
lished by law.
2. The court must consider —
a. The mitigating and aggravating circumstances; and
b. More particularly, the wealth or means of the culprit.

740
Art. 66 IMPOSITION OF FINES

When the minimum of the fine is not fixed.

When the law does not fix the min imum of the fine, the
determination of the amount of the fine to be imposed upon the culprit
is left to the sound discretion of the court, provided it shall not exceed
the maximum authorized by law. (People vs. Quinto, 60 Phil. 351,
357-358)

Fines are not divided into three equal portions.

The courts are not bound to divide the amount of fine
by law into three equal portions as in the case of imprisonment
imposed in relation to a divisible penalty.

Wealth or means of culprit is main consideration in fine.

The wealth or means of the culprit is emphasized, because a
fixed amount of fine for all offenders of a particular crime, will result
in an inequality. to a rich man is chicken-feed; but certainly,
that amount is something to a poor man.
To an indigent laborer, for instance, earning a day or
about a month, a fine would undoubtedly be more
severe than a fine of to an office holder or property owner with
a monthly income of
Obviously, to impose the same amount of a fine for the same
offense upon two persons thus differently circumstanced would be
to mete out to them a penalty of unequal severity; hence, unjustly
discriminatory. (People vs. Ching Kuan, 74 Phil. 23 , 24)

But mitigating and aggravating circumstances are not entirely

disregarded. Factors other than condition of accused
may be considered by the court.
Art. 66 says that the court may also consider mitigating and
aggravating circumstances.
The court may also consider, in the imposition of the proper
amount of the fine, other factors, such as the gravity or seriousness
of the crime committed, the heinousness of its perpetration, and the
magnitude of its effects on the offender's victims. (People vs. Manuel,
CA-G.R. Nos. July 6, 1957)

741
 PENALTY FOR INCOMPLETE CIRCUMSTANCES Art. 67
OF ACCIDENT

Position and standing of accused considered aggravating

in gambling.
a. Where a person found guilty of violation of the Gambling Law
is a man of station or standing in the community, the maximum
penalty should be imposed. (U.S. vs. 39 Phil. 102,
113)
b. Because the accused in a gambling case was a municipal treas-
urer, the Court imposed a fine of and one year imprison-
ment, the maximum penalty provided by law. (U.S. vs. Mercader,
41 Phil. 930, 932)

Art. 67 . Penalty to be imposed when not all the requisites of ex-

emption of the fourth circumstance of Article 12 are present. — Whe n
all th e c o n d i t i o n s r e q u i r e d in c i r c u m s t a n c e n u m b e r 4 of Ar-
ticl e 1 2 o f thi s Cod e t o e x e m p t fro m c r i m i n a l l i ab i l i t y ar e no t
p r e s e n t , th e p e n a l t y of arresto mayor in it s m a x i m u m p e r i o d
to prision correccional in it s m i n i m u m p e r i o d shal l be i m p o s e d
up o n th e c u l p ri t, i f h e shal l b e e n gu i l t y o f a g ra v e
fel on y, an d arresto mayor in it s m i n i m u m an d m e d i u m p e r i o d s
, i f of a les s g ra v e fel on y .

Art. 67 applies only when all the requisites of the exempting

circumstance of accident are not present.
Circumstance No. 4 of Art. 12 refers to the exempting circum-
stance of accident.
The conditions necessary to exempt from liability under Subsec-
tion 4 of Art. 12 are four:
That the act causing the injury be lawful; that is, permitted
not only by law but also by regulations.
That it be performed with due care.
3. That the injury be caused by mere accident, i.e., by an
unforeseen event.
4. That there be no fault or intention to cause the injury.

742
 Art. 68 PENALTY FOR PERSONS UNDER
18 YEARS

If all these conditions are not present, the act should be

considered as reckless imprudence if the act is executed without
taking those precautions or measures which the most common
prudence would require; and simple imprudence, if it is a mere lack
of precaution in those cases where either the threatened harm is
not imminent or the danger is not openly visible. The case will fall
under Art. 365, par. 1.
The penalty provided in Art. 67 is the same as that in Art.
365.

Art. 68 . Penalty to be imposed upon a person under eighteen

years of age. — Whe n th e o f f e n d e r is a m i n o r u n d e r e i g h t e e n
y ea r s an d hi s cas e i s on e c o m i n g u n d e r th e p r o v i s i o n s o f th e
p a r a g r a p h n ex t t o th e las t o f Arti cl e 8 0 o f thi s Code , th e fol-
l o w i n g ru l e s shal l b e o b s e r v e d :

1 . Upo n a perso n unde r bu t ove r n in e y e a r s of

age , wh o i s no t e x e m p t e d fro m l i ab i l i t y b y r e a s o n o f th e c ou r
t h a v i n g d e c l a r e d tha t h e a c t e d w i t h d i s c e r n m e n t , a d i s c r e t i o n
- ary p e n a l t y shall b e i m p o s e d , bu t a l w a y s l o w e r b y tw o
d e g r e e s a t l eas t t h a n tha t p r e s c r i b e d b y la w for th e c r i m e
whic h h e committed .
2 . U p o n a p e r s o n ove r fifteen an d u n d e r e i g h t e e n ye ar
s o f ag e th e p e n a l t y n ex t l o w e r t h a n tha t p r e s c r i b e d b y la w
shall b e i m p o s e d , bu t a l w a y s i n th e p r o p e r

Article 68 has been partly repealed by Republic Act No. 9344.

Article 68 of the Revised Penal Code which prescribes the penalty
to be imposed upon a person under eighteen (18) years of age has
been partly repealed by Rep. Act No. 9344 which provides that (1) a
child fifteen years and under is exempt from criminal responsibility,
and (2) a child above fifteen (15) years but below eighteen (18) years
of age is exempt from criminal liability unless he/she has acted with
discernment. (Sec. 6, Rep. Act No. 9344)

repealed by Republic Act No. 9344 Justice and Welfare Act of

2006). See explanations, infra.

743
 PENALTY FOR INCOMPLETE JUSTIFYING OR Art. 69
EXEMPTING CIRCUMSTANCE

While an offender over nine (9) years but under fifteen (15)
years who acts with discernment is not exempt from criminal liability
under Art. 68, and a discretionary penalty shall be imposed which
shall be always lower by two degrees than that prescribed by law for
the crime committed, said offender is exempt from criminal liability
under Rep. Act No. 9344; hence, no penalty shall be imposed.

When an offender is over fifteen (15) but under eighteen (18)

years of age, the penalty next lower than that prescribed by law
shall be imposed under Art. 68, while under Rep. Act No. 9344, the
offender shall be exempt from criminal liability unless he/she acted
with discernment.
If the offender acted with discernment, he/shall shall undergo
diversion programs provided under Chapter 2 of Rep. Act No. 9344.
If the court finds that the objective of the disposition measures
imposed upon the child in conflict with the law has not been fulfilled,
or if the child in conflict with the law has willfully failed to comply
with the conditions of his/her disposition or rehabilitation program,
the child in conflict with the law shall be brought before the court for
execution of judgment. (Sec. 40, Rep. Act No. 9344) The penalty to be
imposed on the child in conflict with the law shall be that provided
for in paragraph 2 of Art. 68, that is, the penalty next lower than that
prescribed by law.

Probation as an alternative to imprisonment.

The court may, after it shall have convicted and sentenced a child
in conflict with the law, and upon application at any time, place the
child on probation in lieu of service of his/her sentence taking into
account the best interest of the child. For this purpose, Section 4 of
Presidential Decree No. 968, otherwise known as the "Probation Law
of is hereby amended accordingly.

Art. 69 . Penalty to be imposed when the crime committed is

not wholly excusable. — A p e n a l t y l o w e r by on e or tw o d e g r e e s
tha n tha t p r e s c r i b e d b y la w sh all b e i m p o s e d i f th e dee d i s
not w h ol l y e x c u s a b l e b y r e a s o n o f th e lac k o f som e o f th e
condi - ti on s r e q u i r e d t o justi fy th e sam e o r t o e x e m p t from
cr i m i n al l i ab i l i t y i n th e se ve ra l c as e s m e n t i o n e d i n
Ar ti cl es 1 1 an d
744
 Art. 69 PENALTY FOR INCOMPLETE JUSTIFYING OR
EXEMPTING CIRCUMSTANCE

12, p r o v i d e d tha t th e m aj or i t y o f suc h c o n d i t i o n s b e p r e s e n t .

The cou rt s shall i m p o s e th e p e n a l t y i n th e p er i o d w h i c h ma
y b e deeme d p rop er , i n vi e w o f th e n u m b e r an d n a t u r e o f th
e condition s o f exemptio n presen t o r lacking .

aggression is indispensable in self-defense, defense

of relatives and defense of stranger.
The first circumstance in self-defense, etc. (Subsections 1, 2 and
3 of Art. which is unlawful aggression must be present.
For instance, B, who was challenged by A to a fight, was the first
to attack A with a whereupon A with similar weapon retaliated
by stabbing B, but in the struggle, B killed A.
Can B be given a reduction of one or two degrees lower than the
penalty prescribed for homicide?
Although the greater number of the conditions required to
justify the deed, that is, (1) reasonableness of the means employed
and (2) lack of sufficient provocation, is present, since the essential
or primordial element of unlawful aggression is lacking, he is not
entitled to a reduction. (See U.S. vs. Navarro, 7 Phil. 713)
There was no unlawful aggression, because there was an
agreement to fight between A and B. The latter accepted the challenge
by attacking the challenger A.

"In the several cases mentioned in Articles 11 and

The p r i vi l e ge d m i t i g a t i n g c i r c u m s t a n c e s c o n t e m p l a t e d
in Article 69 include the incomplete justifying and incomplete
exempting circumstances, provided the majority of their conditions
is present.

"Provided the majority of such conditions be present."

In the case of People vs. Alvarez, 44 O.G. 946, the Court of
Appeals refused to apply this article because there was only unlawful
aggression on the part of the victim, but the means employed by
the accused was not reasonable and he (accused) provoked the
aggression.

745
 SUCCESSIVE SERVICE OF SENTENCES Art. 70

Let us take a case of homicide in which the provocation and un-

lawful aggression came from the deceased, but the means employed
by the offender was not reasonable.
In this case, there are present more than one of the requisites
of self-defense. (Guevara)
When two of the essential requisites for justification are present,
the penalty lower by two degrees may be imposed. (People vs. Dorado,
43 Phil. 240, 244-245; People vs. Lucero, 49 Phil. People vs.
48 Phil. 268, 276)

Where only unlawful aggression is present, the penalty next

lower may be imposed. (People vs. Cabellon, 51 Phil. 846, 852)
This decision is contrary to the provision of this Article which
says: "provided, the majority of such conditions be present."

p en al t y l ow e r b y on e o r tw o d e g r e e s th a n tha t p r e s c r i b e d b
y la w shall be i m p o s e d x in th e p e r i o d w h i c h ma y be d e e m e d
p rop er , i n v i e w o f th e n u m b e r an d n a t u r e o f th e c o n d i t i o n s o
f exemptio n presen t o r
In view of this clause in Art. 69, the court has the discretion to
impose one or two degrees lower than that prescribed by law for the
offense.
But in determining the proper period of the penalty one or two
degrees lower, the court must consider the number and nature of the
conditions of exemption or justification present or lacking.

When the majority of the requisites of self-defense and

two mitigating without aggravating circumstances are
present, the penalty is three degrees lower.
Thus, if the accused charged with homicide punishable by
reclusion temporal proved unlawful aggression on the part of the
deceased and another requisite of self-defense; plus two mitigating
circumstances of surrender and obfuscation, without any aggravating
circumstance, the proper penalty for him is arresto mayor medium or
from 2 months and 1 day to 4 months.

Art. 70. Successive service of sentences. — When th e culprit ha s

t o serv e tw o o r mor e p e n a l t i e s , h e shall serv e the m

746
si mu l t an e-

747
 Art. 70 SUCCESSIVE SERVICE OF SENTENCES

i f th e n a t u r e o f th e p e n a l t i e s will s o p ermi t; o t h e r w i s e
, th e f o l l o w i n g ru le s shall b e o b s e r v e d :
I n th e i m p o s i t i o n o f th e p e n a l t i e s , th e o rd e r o f t h e i r
r e s p e c t i v e s e v e r i t y shal l b e f o l l o w e d s o tha t the y ma y b e ex-
e c u t e d s u c c e s s i v e l y o r a s n e a r l y a s ma y b e p o s s i b l e , s h o u l d a
p ar d o n h av e b e e n g r a n t e d a s t o th e p e n a l t y o r p e n a l t i e s
i mp o s e d , o r s h o u l d th e y h av e b e e n s e r v e d out .
Fo r th e p u r p o s e o f a p p l y i n g th e p r o v i s i o n s o f th e
nex t p r e c e d i n g p a r a g r a p h th e r e s p e c t i v e s e v e r i t y o f th e pen -
al ti e s sh all b e d e t e r m i n e d i n a c c o r d a n c e wi t h th e f o l l o w i n g
scale:
1. Death ,
2. perpetua,
3. temporal,
4. Prisidn mayor,
5. correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro ,
9. Perpetua l absolut e disqualification ,
10. Temporar y absolut e disqualification ,
11. S u s p e n s i o n fro m p u b l i c office, th e r i g h t t o vot e an
d b e v o t e d for, th e ri gh t t o fol l o w p r o f e s s i o n o r
ca l l i n g , an d
12. Publi c censure .
N o t w i t h s t a n d i n g th e p r o v i s i o n s o f th e rul e n ex t p reced -
ing, th e m a x i m u m d u r a t i o n o f th e s e n t e n c e sh all no
t b e mor e th a n th re ef ol d th e l e n g t h o f ti m e c o r r e s p o n d i n g
t o th e mos t s e v e r e o f th e p e n a l t i e s i m p o s e d u p o n hi m . N o
o th e r p e n a l t y t o w h i c h h e ma y b e l i ab l e sh all b e i n fli cted
after th e su m o f th os e i m p o s e d e q u a l s th e sai d m a x i m u m
p er i o d .
S u c h m a x i m u m p e r i o d s h a l l i n n o c a s e e x c e e d fort y
years .

748
 SUCCESSIVE SERVICE OF SENTENCES Art. 70

I n a p p l y i n g th e p r o v i s i o n s o f thi s rul e th e d u r a t i o n o f
p e r p e t u a l p e n a l t i e s (pena perpetua) shal l be c o m p u t e d at th i rt y
y e a r s . (As amended by Com. Act No.

Outline of the provisions of this Article:

When the culprit has to serve two or more penalties, he shall
serve them simultaneously if the nature of the penalties will so
permit.
2. . Otherwise, the order of their respective severity shall
be followed.
3. The respective severity of the penalties is as follows:
a. Death,
b. Reclusion perpetua,
Reclusion
temporal,
d. mayor,
e. Prisidn correccional,
f. Arresto mayor,
g. Arresto menor,
h. Destierro,
i. Perpetual absolute disqualification,
j. . Temporary absolute disqualification,
k. Suspension from public office, the right to vote and be voted
for, the right to follow profession or calling, and
1. Public censure.

Th e p e n a l t i e s w h i c h ca n b e s i m u l t a n e o u s l y s e r v e d are:
(a) Perpetual absolute disqualification,
(b) Perpetual special disqualification,
(c) Temporary absolute disqualification,

749
(d) Temporary special disqualification,

750
Art. 70 THREE-FOLD RULE IN SERVICE
OF SENTENCES

(e) Suspension,
(f) Destierro,
(g) Public censure,
(h) Fine and bond to keep the peace,
(i) Civil interdiction, and
Confiscation and payment of costs.
The above penalties, except destierro, can be served simultane-
ously with imprisonment.
Penalties consisting in deprivation of liberty cannot be served
simultaneously by reason of the nature of such

The order of the respective severity of the penalties shall be

followed so that they may be executed successively.
Thus, where the convict was sentenced on October 28, 1905,
to imprisonment for 6 months for one offense, and on November
1905, he was sentenced to imprisonment for 4 months and 1 day
for another offense, it was held that he should serve the two terms
successively and the time of the second sentence did not commence
to run until the expiration of the first. (Gordon vs. Wolfe, 6 Phil. 76,
78)

Where the defendant was sentenced to three distinct terms

of imprisonment for the separate offenses of frustrated homicide,
trespass, and less serious physical injuries, the three penalties should
be served successively in the order of their severity. (People vs.
59 Phil. 134, 138)
Imprisonment must be served before destierro. Arresto menor
is more severe than destierro. (People vs. Misa, C.A., 36 O.G. 3697)

The three-fold rule.

According to the three-fold rule, the maximum duration of the
sentence shall not be more than three times the length of time
corresponding to the most severe of the penalties imposed upon him.
Example: A person is sentenced to suffer — 14 years, 8 months
and 1 day for homicide; 17 years, 4 months and 1 day in another case;

751
 THREE-FOLD RULE IN SERVICE
Art. 70
OF SENTENCES

14 years and 8 months in the third case; and in a case of frustrated

homicide, he is sentenced to 12 years, or a total of 59 years, 8 months
and 2 days.
The most severe of those pen al ti es is 17 years, 4 months
and 1 day. Three times that penalty is 52 years and 3 days. But
since the law has limited the duration of the maximum term of
imprisonment to not more than 40 years, the accused will have to
suffer 40 years only. (See People vs. Alisub, 69 Phil. 362, 366; People
vs. Lagoy, G.R. No. May 94 Phil. 1050

The phrase "the most severe of the penalties" includes

equal penalties.
Thus, the petitioner for habeas corpus who had been sentenced
in six (6) different cases of estafa, in each of which he was penalized
with 3 months and 11 days of arresto mayor, cannot be made to suffer
more than 3 months and days multiplied by 3 or 9 months and 33
days.

Hence, the petitioner who was in jail for one year and three
months remained there beyond the period allowed under the three-
fold rule. (Aspra vs. Director of Prisons, 85 Phil. 737, 738)

The three-fold rule applies only when the convict has to serve
at least four sentences.
If only two or three penalties corresponding to different crimes
committed by the convict are imposed, it is hardly possible to apply
the three-fold rule.
Illustration: A was convicted of three crimes of homicide for each
of which he was sentenced to 12 years and 1 day of temporal.
Adding all the three penalties, you will find a total of 36 years and 3
days; or multiplying one of the penalties, each of 12 years and 1 day,
by 3 you will find the same result.
Suppose, for the first homicide A was sentenced to 12 years and
1 day; for the second, 14 years, 8 months and 1 day; and for the third,
17 years, 4 months and 1 day; in this case, the total of all the penalties
is 44 years and 3 days. On the other hand, 17 years, 4 months and
1 day multiply by 3 equals 52 years and 3 days. The three-fold rule
does not apply, because the total of all the penalties is less than the
most severe multiplied by 3.

752
 70 THREE-FOLD RULE IN SERVICE
OF SENTENCES

But if A was convicted of four crimes of homicide, for each of

which he was sentenced to 12 years and 1 day or to different penalties,
the three-fold rule can properly be applied.
Follow the same computation on the basis of four the
fourth penalty at least equal to any one of the penalties mentioned,
and you will find that the most severe multiplied by 3 is less than
the sum total of all the penalties.
If the sum total of all the penalties does not exceed the most severe
multiplied by 3, the three-fold rule does not apply.
Thus, if A was sentenced to 1 year for theft, 2 years for robbery, 1
year for estafa, 4 months for physical injuries, and 4 months 1 day
for slander, the total of all the penalties being only 4 years, 8 months and
1 day, which is less than 2 years multiplied by 3 or 6 years, the three-
fold rule does not apply. The three-fold rule applies only when the total
of all the penalties imposed exceeds the most severe multiplied by 3.

All the penalties, even if by different courts at different times,

cannot exceed three-fold the most severe.
This rule, for the reason stated, should be followed irrespective of
the fact that the different offenses are charged in several informations,
or are included in a single prosecution, or the several cases are tried
before the same court or in different courts. (People vs. Geralde, 50
Phil. 823, 829)
The three-fold rule applies although the penalties were imposed
for different at different and under separate informa-
tions. (Torres vs. Superintendent, 58 Phil. 847, 848)

Reason for the ruling.

The Rules of Court specifically provide that an information must
not charge more than one offense. Necessarily, the various offenses
punished with different penalties must be charged under different
informations which may be filed in the same court or in different
courts, at the same time or at different times.

Duration of the convict's sentence refers to several penalties

for different offenses, not yet served out.
Note, however, that this rule applies only when the convict has
to serve continuous imprisonment for several offenses. If the convict

753
 THREE-FOLD RULE IN SERVICE
Art. 70
OF SENTENCES

already served sentence for one that imprisonment will not be

considered, for the purpose of the three-fold rule, if after this release
he commits again and is convicted of new offenses. Note the opening
sentence of Article 70 which says: "When the culprit has to serve two
or more penalties, he shall serve them simultaneously if the nature
of the penalties will so permit." Only penalties which have not yet
been served out can be served simultaneously.

No prisoner shall be required to remain in prison continuously

for more than 40 years. The duration of perpetual penalties is 30
years.

If the sentence is indeterminate, the maximum term is to be consid-

ered.
If the sentence is indeterminate, the basis of the three-fold rule
is the maximum term of the sentence. (People vs. Desierto, C.A., 45
O.G. 4542)

Subsidiary imprisonment forms part of the penalty.

The imposition of three-fold maxi mu m penalty under Art.
70 does not preclude subsidiary imprisonment for failure to pay a
fine.
The rule is to multiply the highest penalty by 3 and the result
will be the aggregate principal penalty which the prisoner has to
plus the payment of all indemnities with or without subsidiary
provided the principal penalty does not exceed 6 years.
(Bagtas vs. Director of Prisons, 84 Phil. 692, 698)
Example: A was found guilty in 17 criminal cases, the most
severe of the 17 sentences being 6 months and 1 day plus a fine of
with subsidiary imprisonment in case of insolvency.
After serving 18 months and 3 days in prison, A filed a peti-
tion for habeas corpus, contending that under Art. 70, the maximum
duration of his sentence cannot exceed three-fold the length of time
corresponding to the most severe of the penalties imposed upon him,
which in this case was 18 months and 3 days. A further contended
that the subsidiary imprisonment for nonpayment of the fine should
be eliminated, because Art. 70 provides that "no other penalty to which
he may be liable shall be inflicted after the sum total of those imposed
equals the maximum period."

754
Art. 70 THREE-FOLD RULE IN SERVICE
OF SENTENCES

The subsidiary imprisonment for nonpayment of the fine cannot

be eliminated so long as the principal penalty is not higher than 6
years of imprisonment.
The provision of Art. 70 that "no other penalty to which he may
be liable shall be inflicted after the sum total of those imposed equals
the said maximum period," simply means that the convict shall not
serve the excess over the maximum of three-fold the most severe
penalty. For instance, if the aggregate of the principal penalties is
six years and that is reduced to two years under the three-fold rule,
he shall not be required to serve the remaining four years.

If the petitioner would not be able to pay the fine, the maximum
duration of his imprisonment shall be 18 months and 3 days of the
principal penalty plus 6 months and 1 day of subsidiary imprisonment
for failure to pay the fine, or a total of 2 years and 4 days. (See Bagtas
vs. Director of Prisons, supra)

Indemnity is a penalty.
The accused contended that in applying the three-fold rule, the
court should not have taken into account the indemnity of or
its corresponding subsidiary imprisonment.
Held: This contention is without merit for an indemnity, to all
intents and purposes, is considered a penalty, although pecuniary in
character. Art. 70 makes no distinction between the principal penalty
and subsidiary imprisonment. vs. Director of Prisons, G.R.
No. 47326)

Court must impose all the penalties for all the crimes of which
the accused is found guilty, but in the service of the same,
they shall not exceed three times the most severe and shall
not exceed 40 years.
The three-fold rule is applied, not in the imposition of the
penalties, but in connection with the service of the sentences imposed.
(People vs. Escares, 102 Phil. 677, 679; People vs. Jose, No. L-28232,
Feb. 6, 37 SCRA 450, 477; vs. Sandiganbayan, No. L-
74652, May 21 , 1987, 150 SCRA 138, 143)

Article 70 of the Revised Penal Code is concerned exclusively

with the "service" of sentence; it speaks of "duration" of penalty and

755
 RULE IN SERVICE
Art. 70
OF SENTENCES

penalty to It has nothing to do with the imposition of the

proper penalty. Nowhere is it there envisioned that the court should
make a computation and, in its decision, sentence the culprit to not
more than three-fold the most severe of the penalties imposable upon
him. Computation is for the prison authorities to undertake. (People
vs. Salazar, C.A, 61 O.G. 5913)

In the case of People vs. Mendoza, G.R. May 5, 1950, it

was held that the accused were guilty of murders and that each of
them must be sentenced to suffer reclusion perpetua for each of the
five murders, although the duration of the aggregate penalties shall
not exceed 40 years. In this case, after serving one reclusion perpetua,
which is computed at 30 years, the accused will serve 10 years more.
All the other penalties will not be served.

In the case of People vs. Lagoy, G.R. May the

accused were sentenced to perpetua for each of the three
murders, to be served continuously and successively, provided that,
under Art. 70 of the Revised Penal Code, the maximum or total period
shall not exceed forty (40) years. (See also People vs. Macatembal,
Nos. Feb. 13 SCRA 328, 333)

In the case of U.S. vs. 37 Phil. 305, 311 , the accused

committed four crimes, but the trial court imposed only death penalty
for one of them.
Held: "All the penalties corresponding to the several violations of
law" should be imposed, to wit: the penalty of death for parricide
of his wife; (2) the penalty of life imprisonment for the murder of L;
(3) the penalty of life imprisonment for the murder of I; and (4) the
penalty of 12 years and 1 day of reclusion temporal for the frustrated
murder of T.

Two or more death penalties imposed on one convict.

Multiple death penalties are not impossible to serve because
they will have to be executed simultaneously. A cursory reading of
Article 70 will show that there are only two modes of serving two or
more (multiple) penalties: simultaneously or successively. The first
rule is that two or more penalties shall be served simultaneously if the
nature of the penalties will so permit. In the case of multiple capital
the nature of said penal sanctions does not only permit but
actually necessitates simultaneous service.

756
Art. 70 THREE-FOLD RULE IN SERVICE
OF SENTENCES

The imposition of multiple death penalties, far from being a

useless formality, has practical importance. The sentencing of an
accused to several capital penalties is an indelible badge of his
extreme criminal perversity, which may not be accurately projected
by the imposition of only one death sentence irrespective of the
number of capital felonies for which he is liable. Showing thus the
reprehensible character of the convict in its real dimensions, the
possibility of a grant of executive clemency is justifiably reduced in
no small measure. Hence, the imposition of multiple death penal-
ties could effectively serve as a deterrent to an improvident grant
of pardon or commutation. Faced with the utter delinquency of
such a convict, the proper penitentiary authorities would exercise
judicious restraint in recommending clemency or leniency in his
behalf.

Granting, however, that the Chief Executive, in the exercise

of his consti tu ti onal power to pardon (one of the p resid en ti al
prerogatives which is almost absolute) deems it proper to commute
the multiple death penalties to multiple life imprisonments, then
the practical effect is that the convict has to serve the maximum of
forty (40) years of multiple life sentences. If only one death penalty
is imposed, and then is commuted to life imprisonment, the convict
will have to serve a maximum of only thirty years corresponding to a
single life sentence. (People vs. Peralta, No. Oct. 29, 1968,
25 SCRA 759, 785-786; People vs. Jose, No. L-28232, Feb. 6, 1971,
37 SCRA 450, 479)

Different systems of penalty.

There are three different systems of penalty relative to the
execution of two or more penalties imposed on one and the same
accused. They are:

The material accumulation system;

(2) The juridical accumulation system; and
(3) The absorption system (the lesser penalties are absorbed
by the graver penalties).

The material accumulation system.

Previous legislation adopted the theory of absolute accumulation
of crimes and penalties and established no limitation whatever and,

757
 GRADUATED SCALES OF LOWERING Art. 71
PENALTIES

accordingly, all the penalties for all the violations were imposed even
if they reached beyond the natural span of human life. (Guevara)
Pars. 1, 2 and 3 of Art. 70 follow the material accumulation
system.

The juridical accumulation system.

Pars. 4, 5 and 6 of Art. 70 are in accordance with the juridical

accumulation system. The service of the several penalties imposed
on one and the same culprit is limited to not more than three-fold
the length of time corresponding to the most severe and in no case to
exceed 40 years.

The absorption system.

The absorption system is observed in the imposition of the
penalty in complex crimes (Art. 48), continuing crimes, and specific
crimes like robbery with homicide, etc.

Art. 71 . Graduated scales. — In th e c a s e s in w h i c h th e la w

p r e s c r i b e s a p e n a l t y l o w e r o r h i g h e r b y on e o r mo r e d e g r e e s
th a n a n o t h e r g i v e n p e n a l t y , th e ru l e s p r e s c r i b e d i n Arti cl e
shall b e o b s e r v e d i n g r a d u a t i n g su c h p e n a l t y .
Th e l o w e r o r h i g h e r p e n a l t y sh al l b e t a k e n fro m th e
g r a d u a t e d scal e i n w h i c h i s c o m p r i s e d th e gi ve n p e n a l t y .
Th e cou rts , i n a p p l y i n g s u c h l o w e r o r h i g h e r p e n a l t y ,
sh all ob s e r v e th e f o l l o w i n g g r a d u a t e d sc al es :

SCALE NO . 1
1.
D ea t h
2.
Reclusion perpetua
3.
Reclusion temporal
4.
Prision mayor
5.
Prision correccional
6.
Arresto mayor
7.
Destierro

758
Art. 71 GRADUATED SCALES OF LOWERING
PENALTIES

8. Arresto menor
9.
Pu b l i c c e n s u r e
10.
Fine .

SCALE NO. 2
1. . Perpetua l absolut e
disqualificatio n 2 . Temporar y absolut e
disqualificatio n
3 . S u s p e n s i o n from pu bl i c office, th e righ t t o vot e an d
be v ot e d for, an d th e righ t to fol l ow a p r o f e s s i o n or
ca l l i n g
4. Publi c censur e
5. Fi n e .

Death shall no longer form part of the equation in the gradu-

ation of penalties, pursuant to Rep. Act No. 9346.
The negation of the word "death" as previously inscribed in
Article will have the effect of appropriately downgrading the
proper penalties attaching to accomplices, accessories, frustrated and
attempted felonies to the level consistent with the rest of our penal
laws. Thus, a convicted accomplice in kidnapping for ransom, would
now bear the penalty of reclusion temporal, the penalty one degree
lower the (reclusion perpetua). Such
sentence would be consistent with Article 52 of the Revised Penal
Code, as well as Article 71 , as amended, to remove the reference to
"death." Moreover, the prospect of the accomplice receiving the same
sentence as the principal, an anomalous notion within our penal
laws, would be eliminated. Thus, the same standard would prevail
in sentencing principals and accomplices to the crime of kidnapping
in as that prescribed to the crime of simple kidnapping.

The harmonization that would result if Rep. Act No. 9346 were
construed as having eliminated the reference to "death" in Article
71 would run across the board in our penal laws. Consistent with
Article 51 of the Revised Penal Code, those convicted of attempted
qualified rape would receive the penalty two degrees lower than that
prescribed by law, now Rep. Act No. 9346, for qualified rape.

There are principl es in s ta tu to ry c on st ru ct i o n tha t will

sanction, even mandate, this interpretation of Rep. Act
759
 GRADUATED SCALES OF LOWERING
Art. 71
PENALTIES

No. 9346. The maxim interpretare et concordare legibus est

interpretandi embodies the principle that a statute should be so
construed not only to be consistent with itself, but also to harmonize
with other laws on the same subject matter, as to form a complete,
coherent and intelligible uniform system of jurisprudence.
and harmonizing laws with laws is the best method of
x x x This manner of construction would provide a
complete, consistent and intelligible system to secure the rights of
all persons affected by different legislative and quasi-legislative acts."
There can be no harmony between Rep. Act No. 9346 and the Revised
Penal Code unless the later statute is construed as having downgraded
those penalties attached to death by reason of the graduated scale
under Article Only in that manner will a clear and consistent rule
emerge as to the application of penalties for frustrated and attempted
felonies, and for accessories and accomplices.
It is also a well-known rule of legal hermeneutics that penal or
criminal laws are strictly construed against the state and liberally
in favor of the accused. If the language of the law were ambiguous,
the court will lean more strongly in favor of the defendant than it
would if the statute were remedial, as a means of effecting substantial
justice. The law is tender in favor of the rights of an individual. It is
this philosophy of caution before the State may deprive a person of
life or liberty that animates one of the most fundamental principles
in our Bill of Rights, that every person is presumed innocent until
proven guilty.

For purposes of legal hermeneutics, the critical question is

whether Rep. Act No. 9346 intended to delete the word "death" as
expressly provided for in the graduated scale of penalties under Article
71.

Since Article 71 denominates "death" as an element in the

graduated scale of penalties, there is no question that the operation
of Article 71 involves the actual application of the death penalty as
a means of determining the extent which a person's liberty is to be
deprived. Since Rep. Act No. 9346 unequivocally bars the application
of the death penalty, as well as expressly repeals all such statutory
provisions requiring the application of the death penalty, such effect

760
 Art 71 GRADUATED SCALES OF LOWERING
PENALTIES

necessarily extends to its relevance to the graduated scale of penal-

ties under Article 71.

We cannot find basis to conclude that Rep. Act No. 9346 intended
to retain the operative effects of the death penalty in the graduation
of the other penalties in our penal laws.

Henceforth, "death," as utilized in Article 71 of the Revised Penal

Code, shall no longer form part of the equation in the graduation of
penalties. (People vs. Bon, G.R. No. 166401, Oct. 30, 2006)

Example.
In the case of an appellant convicted of attempted rape, the deter-
mination of his penalty for attempted rape shall be reckoned not from
two degrees lower than death, but two degrees lower than reclusion
perpetua. Hence, the maximum term of his penalty shall no longer
be reclusion temporal, as ruled by the Court of Appeals, but instead,
prision mayor. (People vs. Bon, G.R. No. 166401, Oct. 30, 2006)

What is the penalty next lower in degree from arresto

Art. provides in Scale No. 1 that the penalty next lower in
degree from arresto mayor is destierro.
The ruling in the case of Rivera vs. Geronimo, 76 Phil. 838, to
the effect that the penalty next lower from arresto mayor is arresto
may be considered overruled by the ruling in the case of Uy
Chin Hua vs. Dingalasan, 47 O.G., Supp. 12, 233.
According to the case of Uy Chin Hua vs. Dingalasan, the scale
of penalties in Art. which places destierro below arresto mayor
cannot be disregarded and the respective severities of arresto mayor
and destierro must not be judged by the duration of each of these
penalties, but by the degree of deprivation of liberty involved. The
penalty next lower in degree from arresto mayor is destierro.

The metropolitan and municipal courts can impose destierro.

Offenses penalized by destierro fall under the jurisdiction of
justice of the peace and municipal courts. (People vs. Santos, 87 Phil.

761
 GRADUATED SCALES OF LOWERING Art. 71
PENALTIES

Destierro, a l th ou gh a correctional p enalty co n si st i n g in

banishment (Art. 87) with a duration of 6 months and 1 day to 6
years (Art. 27) is considered not higher than arresto mayor which is
imprisonment of 1 month and 1 day to 6 months.
Under the Ju d i ci ary R e o r g a n i z a t i o n Act of 1980 , Bata s
Pambansa 129, as amended by Rep. Act No. 7691 , metropolitan
trial courts, municipal trial courts, and municipal circuit trial
courts shall exercise exclusive original jurisdiction over all offenses
punishable with imprisonment not exceeding six (6) years irrespective
of the amount of fine, and regardless of other imposable accessory or
other penalties, including the civil liability arising from such offenses
or predicated thereon, irrespective of kind, nature, value, or amount
thereof: Provided, however, That in offenses involving damage to
property through criminal negligence they shall have exclusive
original jurisdiction thereof.

Must destierro be applied only when it is

imposed by law?
No. Destierro may be imposed when it is the penalty next lower
and the circumstances require the imposition of a penalty one degree
lower.

The penalty two degrees lower from arresto mayor in its medium
and maximum periods is destierro in its minimum and medium pe-
riods.

Penalty prescribed by law.

Arresto mayor
One degree lower.

Destierro
Two degrees lower.

Arts. 25, 70 and

Under Art. 25, penalties are classified into (1) principal and
(2) accessory penalties. The principal penalties are subdivided into
capital, afflictive, correctional, and light.
Art. 70 classifies the penalties, for the purpose of the successive
service of sentences, according to their severity.

762
 Art. 72 PREFERENCE IN THE PAYMENT OF
THE CIVIL LIABILITIES

Art. 71 provides for the scales which should be observed in

graduating the penalties by degrees in accordance with Art. Note
that in Art. destierro is placed above arresto menor. The reason
for this is that destierro, being classified as a correctional penalty, is
higher than arresto menor, a light penalty. Art. par. 2, speaks of
or higher" penalty. Art. 70 speaks of "severity."
Under Art. 70, destierro is placed under arresto menor, accord-
ing to their respective severity. Destierro is considered lighter than
arresto menor. Under Art. 25, destierro is placed above arresto menor,
because it is classified as a correctional penalty.
In Art. the different principal penalties provided for in Art.
25 are classified and grouped into two graduated scales. Under Scale
No. 1, all personal penalties, such as deprivation of life and liberty,
are grouped together. Under Scale No. 2 are grouped all penalties
consisting in deprivation of political rights.

Art. 72. Preference in the payment of the civil liabilities. — Th e

civil l i ab i l i ti es of a p e r s o n fo u n d gu i l t y of tw o or mor e o ff en se s
sh all b e s at i s fi ed b y f o l l o w i n g th e c h r o n o l o g i c a l o r d e r o f th e
d a te s o f th e final j u d g m e n t s r e n d e r e d a g a i n s t him , b e g i n n i n g
wi t h th e first i n or d e r o f ti me .

The person guilty of two or more offenses has two or more

civil liabilities.
This article applies when the offender who is found guilty of two
or more offenses is required to pay the corresponding civil liabilities
resulting from different offenses.

The order of payment of civil liabilities is based on dates of

final judgments.
The order of payment of civil liabilities is not based on the dates
of the commission of the offense.
While criminal liability is satisfied by successive service of sentences
in the order of respective severity (Art. 70), civil liability is satisfied by
following the chronological order of the dates of the final judgments.

763
 PRESUMPTION AS TO ACCESSORY PENALTIES Arts. 73-74
WHEN DEATH IS THE HIGHER PENALTY

S e c t i o n T h re e . — P r o v i s i o n c o m m o n t o th e last tw o pre-
cedin g sections .

Art. 73 . Presumption in regard to the imposition of accessory

penalties. — W h e n e v e r th e c o u r t s shal l i m p o s e a p e n a l t y w h i c
h b y p r o v i s i o n o f law , c a r r i e s w i t h i t o t h e r p e n a l t i e s ,
a c c o r d i n g t o th e p r o v i s i o n s o f A r t i c l e s 40 , 41 , 42 , 43 , 44 , an d
4 5 o f thi s Cod e , i t mu s t b e u n d e r s t o o d th a t th e a c c e s s o r y
p e n a l t i e s ar e als o i m p o s e d u p o n th e c o n v i c t .

Accessory penalties are deemed imposed.

The accessory penalties provided for in Arts. 40 to 45 are deemed
imposed by the courts without the necessity of making an express
pronouncement of their imposition.
In a case, the Solicitor General suggested that the decision below
be modified to show expressly that appellants were also sentenced to
the accessory penalties provided by law. It was held that there was no
necessity for such modification, as the accessory penalties are deemed
imposed. (People vs. Baltazar, CA-G.R. No. May 25, 1956)
According to the case of People vs. Perez, 47 984, accessory
penalties are never presumed to be imposed. This is because under
Art. 90 of the old Penal Code, the accessory penalties are to be imposed
expressly.

Subsidiary imprisonment, not an accessory penalty.

Subsidiary imprisonment is not an accessory penalty and there-
fore, the judgment of conviction must expressly state that the offender
shall suffer the subsidiary imprisonment in case of insolvency. (People
vs. Fajardo, 65 Phil. 539, 542)

Art. 74 . Penalty higher than perpetua in certain cases.

— In ca se s in w h i c h th e la w p r e s c r i b e s a p e n a l t y h i g h e r tha n
a n o t h e r gi ve n p en a l t y , w i t h o u t sp ec i f i c al l y d e s i g n a t i n g th e
n am e o f th e former, i f su c h h i g h e r p e n a l t y s h ou l d b e that o f
d eath , th e sam e p en a l t y an d th e a c c e s s o r y p e n a l t i e s o f
Article 40, shall b e c o n s i d e r e d a s th e nex t h i g h e r p en al ty .

764
Art. 75 INCREASE OR REDUCTION OF FINE

Death cannot be the penalty next higher in degree when not

provided by law.
Suppose that an employee of the Registry Section of the Bureau
of Posts stole a registered package of diamonds worth The
penalty for simple theft involving that amount is reclusion temporal.
(Art. 309) The property stolen being mail matter, the crime is qualified
theft and "shall be punished by the penalties (penalty) next higher
by two (Art. 310) Under Art. 71, "in the cases in which the
law prescribes a penalty x x x higher by one or more degrees than
another given penalty," two degrees higher than temporal
would be death according to Scale No. 1 in said article.

But under the provisions of Art. 74, when a given penalty has
to be raised by one or two degrees and the resulting penalty is death
according to the scale, but is not specifically provided by law as a
penalty, the latter cannot be imposed. The given penalty (reclusidn
temporal) and the accessory penalties of death when not executed by
reason of commutation or pardon (Art. 40) shall be imposed.

Application of this article.

The Code has meant to say here that the judgment should
provide that the convict should not be given the benefit of Art. 27
(that he should be pardoned after undergoing the penalty for 30 years)
until 40 years have elapsed; otherwise, there would be no difference
at all between reclusidn perpetua when imposed as the penalty next
higher in degree and when it is imposed as the penalty fixed by law.
(Albert) In this opinion, the given penalty is reclusidn perpetua.

Reason for the provision of this article.

The penalty higher than reclusidn perpetua cannot be death,
because the penalty of death must be specifically imposed by law as
a penalty for a given crime.

Art. 75 . Increasing or reducing the penalty of fine by one or

more degrees. — W h e n e v e r i t ma y be n e c e s s a r y to i n c r e a s e or
r e d u c e th e p e n a l t y o f fine b y on e o r m or e d e g r e e s , i t sh al l b e
i n c r e a s e d o r r e d u c e d , r e s p e c t i v e l y , for e a c h d e g r e e , b y one -
fou rt h o f th e m a x i m u m a m o u n t p r e s c r i b e d b y law , w i t h o u t
h o w e v e r , c h a n g i n g th e m i n i m u m .

765
 INCREASE OR REDUCTION OF FINE Art. 75

Th e sam e ru l e s sh all b e o b s e r v e d wi t h r eg ar d t o fines tha

t d o no t c o n s i s t o f a fixed a m o u n t , bu t ar e ma d e
proportional .

Fines are graduated into degrees for the accomplices and ac-
cessories and for the principals in frustrated and
attempted felonies.
Fines are also graduated into degrees for the imposition of the
proper amount of the fine on accomplices and accessories or on the
principals in frustrated or attempted felonies. (Arts. 50 to 57)

Examples of reducing fine by one or two degrees.

Suppose the fine is from P20 0 to P2,000 . To find each degree is
to take 1/4 of P2,000 or The minimum of P200 is not changed.
For each degree, take P50 0 from the maximum of the next higher
degree.
Therefore, one degree lower would be P20 0 as minimum to
as maximum.
And two degrees lower would be P200 as minimum to P1,000
as maximum.
For the guidance of the bench and bar, in reducing the penalty of
fine by one or more degrees, the basis for the reduction of the first as
well as the second degree must necessarily be the penalty prescribed
by law for the consummated felony. Thus, where the maximum fine
fixed for the consummated offense is not more than the fine
for the frustrated felony is determined by reducing the maximum by
one-fourth, which is Reducing it further by one degree
for attempted felony, the second reduction by one-fourth should be
based on P2,000, not on the penalty as reduced (Pl,500.00 ) so that
the maximum fine as reduced by two degrees would be
(De Angeles vs. People, 103 Phil. 295, 297-298)

Example of increasing fine by one degree.

Let us suppose that a certain crime is punished with a fine of
not less than P200 and not more than P6,000. One-fourth of the
maximum of P6,000 is Pl ,500 . The fine immediately higher in degree
in accordance with this article will be from P200.00 to
766
Art. 75 INCREASE OR REDUCTION OF FINE

"Without changing the minimum."

This article specifically mentions the word "minimum" of the fine.
Under this article, the fine must have a minimum and a maximum
fixed by law.
A, a minor fifteen years and two months old, committed acts
tending to prevent the meeting of a provincial board under Art. 143.
The penalty is prision correccional or a fine from P20 0 to or
both. Being a minor, A must be given a penalty one degree lower
in accordance with Article 68. The penalty one degree lower is
arresto mayor or a fine from P20 0 to Under Art. 75, the
court cannot change the minimum of P200 , even if the offender is
a poor man. (See People vs. Rodriguez, G.R. No. April 20,
1954)
This article, therefore, does not apply when the law does not fix
the minimum of the fine.

Determination of amount of reduced

There are cases where it becomes necessary to reduce the fines,
because the penalty has to be lowered by one or two degrees. In
determining the amount of the reduced fine, a distinction should be
made between cases where the minimum of the fine is fixed by law
and those where the minimum is not fixed by law.

In Articles 143, 144 and 150, for instance, the Code fixes the
minimum as well as the maximum of the fines. In Articles 114, 115
and 129, for instance, the minimum of the fine is not fixed.

When the minimum is not fixed by law.

When only the maximum of the fine is fixed, the determination
of the amount to be imposed is left to the sound discretion of the
courts, without exceeding the maximum authorized by law. (People
vs. Quinto, 60 Phil. 351 , 357)

Distinctions between fine with a minimum and fine without

a minimum.
In both, the law fixes the maximum of the fine.
2. When the law fixes the minimum of the fine, the court cannot
change that minimum; whereas, when the law does not state

767
 LEGAL PERIOD OF DIVISIBLE PENALTIES Art. 76

the minimum of the fine but only the maximum, the court can
impose any amount not exceeding such maximum.
3. When the law fixes both the minimum and the maximum, the
court can impose an amount higher than the maximum; whereas,
when only the maximum is fixed, it cannot impose an amount
higher than the maximum.

As to tha t d o no t c o n s i s t o f a fixed a m o u n t , bu t ar e mad e

The last paragraph of this article speaks of fines which are not
of fixed amount, but are made proportional.

Examples:
When the negligent act resulted in damage to property of
another, the fine shall be from an amount equal to the value of the
damage to three times such value, but shall in no case be less than
25 pesos. (Art. 365, par. 3)
In the crime of direct bribery (Art. 210) involving a bribe of
P2,300 , the maximum fine is (three times the value of the
gift), and that amount should be the basis for lowering the
penalty by two degrees, which is the penalty for attempted bribery.
(De Angeles vs. People, 103 Phil. 295, 298-299)
In this case, the minimum of the fine is and the maximum
is The fine for attempted bribery is determined, as follows:
Take one-fourth of P6,900 , which is Reducing the maximum
by one-fourth, we have Reducing it further by one-fourth of
the maximum, we have This amount is the maximum of the
fine for attempted bribery. The court can fix any amount of the fine
from to

Art. 76. Legal period of duration of divisible penalties. — Th e

lega l p eri o d of d u r a t i o n of d i vi s i b l e p e n a l t i e s shall be con-
s i d e r e d a s d i v i d e d int o th re e parts , fo rm i n g th re e p eri ods
, th e m i n i m u m , th e m e d i u m , an d th e m a x i m u m i n th e m a n n e
r s h o w n in th e f o l l o w i n g table. (See p. 768)

768
Art. 76 LEGAL PERIOD OF DIVISIBLE PENALTIES

Article 76 shows the manner divisible penalties are divided

into three periods.
For instance, the time included in each of the periods of
temporal is determined, as follows:
(1) temporal has a duration of from 12 years and 1
day as the minimum, to 20 years, as the maximum.
(2) Subtract the minimum (disregarding the 1 day) from the
maximum; thus —
20 years - 12 years 8 years
(3) Divide the difference by 3; thus —
8 years 3 = 2 years and 8 months.
(4) Use the mini mu m of 12 years and 1 day of reclusidn
temporal as the min imum of the min imum period. Then
add 2 years and 8 months to the min imum (disregarding
the 1 day) to get the maxi mu m of the mi n i mu m period.
Thus, we have 14 years and 8 months as the maxi mu m
of the mi n i m u m period. The range of the mi n i m u m
period is, therefore, 12 years and 1 day to 14 years and
8 months.

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; we have 14 years,
8 months and 1 day. Then add 2 years and 8 months to
the minimum of the medium period (disregarding the 1
day); we have 17 years and 4 months, as the maximum
of the medium period. The range of the medium period is,
therefore, 14 years, 8 months and 1 day to 17 years and 4
months.

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 years, 4
months and 1 day. Then add 2 years and 8 months to the
minimum of the maximum period (disregarding the 1 day);
and we have 20 years. Hence, the range of the maximum
period is 17 years, 4 months and 1 day to 20 years.

769
 LEGAL PERIOD OF DIVISIBLE PENALTIES Art. 76

When the penalty is composed of three periods correspond-

ing to different divisible penalties.
If the Revised Penal Code prescribes the penalty of prision
correccional in its medium and maximum periods to prisidn mayor in its
minimum period, what is the duration of each of its three periods?
The time included in the prescribed penalty is from 2 years, 4
months and 1 day to 8 years.
Must the duration of each of the three periods of the prescribed
penalty be that of the period of the corresponding divisible penalty
included in the prescribed penalty, as follows:

Minimum — 2 years, 4 months and 1 day to 4 years and 2

months (the medium of prisidn correccional),
Medium — 4 years, 2 months and 1 day to 6 years (the
maximum prisidn correccional), and
Maximum — 6 years and 1 day to 8 years (the minimum of
prisidn mayor),

or must the time included in the prescribed penalty be divided into

three equal portions, each to form one period, as follows:
Minimum — 2 years, 4 months and 1 day to 4 years, 2 months
and 20 days,
Medium — 4 years, 2 months and 21 days to 6 years, 1
month and 10 days, and
Maximum — 6 years, 1 month and days to 8 years?
It will be noted that, in the first, the duration of the minimum
period of the penalty is the time included in the medium period of
prisidn correccional; the duration of the medium period of the penalty
is the time included in the maximum period of prisidn correccional;
and the duration of the maximum period is the time included in the
minimum period of prisidn mayor. The penalty is not divided into
three equal parts to form the three periods. While the time included
in its minimum and medium periods is 1 year and 8 months, the time
included in its maximum period is 2
It seems that the intention of the Legislature when it enacted
the law (Revised Penal Code) is to give the three periods of a di-

770
 TAB LE S HO WING TH E D U R A T I O N O F DI VI S IB L E P E N AL T IE S
AN D TH E TIME I N C L U D E D I N EACH O F THEI R P E R I O D S

alties Time included in Time included Time included Time inclu

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

Fro m 1 2 ye a r s From 12 years and Fro m 14 ye ar s , 8 From 17 y e

and 1 day to 20 1 day to 14 years months and 1 day months an
years. and 8 months. to 17 years and 4 to 20 years
months.
mayor, ab- From 6 years and 1 From 6 years and 1 From 8 years and 1 From 10 yea
disquali- day to 12 years. day to 8 years. day to 10 years. 1 day to 12
io n an
dl
tempo-
disqualifi-
.
Fr o m 6 m o n t h s 6 months and Fro m 2 y e a r s , 4 Fro m 4 ye
suspen- and 1 day to 6 1 day to 2 years months and 1 day months an
and years. and 4 months. to 4 years and 2 to 6 years.
months.
mayor. Fro m 1 m o n t h F r o m 1 to 2 Fro m 2 m o n t h s 4 month
and 1 day to 6 months. an d 1 day to 4 day to 6 m
months. months.
menor. From 1 to 30 days. From 1 to 10 days. From to 20 days. From to 3
 LEGAL PERIOD OF DIVISIBLE PENALTIES Art. 76

visible penalty equal or uniform duration. Even in cases in which

the penalty prescribed by law is not composed of three periods,
the courts shall divide "into three equal portions the time included
in the penalty prescribed, x x x forming one period of each of the
three portions." (Art. 65)
It is noted that Art. 76 provides that "divisible penalties shall
be considered as divided into three parts, forming three
without stating that the three parts must be the three equal portions
of the time included in the divisible penalties, but the time included
in each of the divisible penalties mentioned in the table in that
article, except that of arresto mayor, is divided into three equal
portions.
It may be argued that the duration of each of the periods of those
divisible penalties is fixed by Art. 76 and must be maintained even if
it is included in a different three-period penalty. But Art. 76 does not
even remotely suggest it. On the contrary, the phrase in that article,
which reads: "in the manner shown in the following table," indicates
merely the way or method of dividing into three periods the divisible
penalties as those mentioned in the table.
Those which are fixed in the table are respectively the pe-
riods of the divisible penalties mentioned therein. To maintain
the durations of those periods even when one or two of them form
part of a prescribed three- period penalty is to give the periods of
the prescribed penalty different durations as earlier indicated. It
would be the only divisible penalty where the duration of one of its
three periods is not equal to that of the others. When the prescribed
penalty does not have three periods, it has to be divided into three
equal portions for the application of the rules contained in Art.
64. When the penalty prescribed is any of the divisible penalties
enumerated in Art. 25, its three periods, except those of arresto
mayor, are the three equal portions of the divisible penalty. The
penalty composed of several periods corresponding to different
divisible penalties cannot be the exception, for there is no legal or
practical basis for the exception.
It is clear that the duration of each of the periods of the divisible
penalties as fixed in the table in Art. 76 of the Revised Penal Code
is not controlling when the penalty prescribed is composed of three
periods corresponding to divisible penalties.

769
 Art. 77 COMPLEX PENALTY

The division of arresto mayor into three equal periods does

not follow the rule.
According to the table prepared under Art. 76, the three periods
of arresto mayor are:
Minimum period — 1 month and 1 day to 2 months.
Medium period — 2 months and 1 day to 4 months.
Maximum period — 4 months and 1 day to 6 months.

Distinction between and "degree."

Penal Code, unlike the old Penal Code, clearly es-
tablishes a distinction between "period" and "degree," by designating
as a "period" each of the three equal parts of a divisible penalty and
as a "degree" the diverse penalties mentioned by name
in the Revised Penal Code. (People vs. Padilla, 36 O.G. 2404)

Art. 77. When the penalty is a complex one composed of three

distinct penalties. — In c a s e s in w h i c h th e la w p r e s c r i b e s a
p e n a l t y c o m p o s e d o f th re e d i s t i n c t p e n a l t i e s , e a c h on e shal l
for m a p eri od ; th e l i g h t e s t o f t h e m shal l b e th e m i n i m u m , th
e n ex t th e m e d i u m , an d th e mos t s e v e r e th e m a x i m u m
period .
W h e n e v e r th e p e n a l t y p r e s c r i b e d doe s no t h a v e on e o
f th e forms s p e c i a l l y p r o v i d e d for i n thi s Cod e , th e p e r i o d s
shall b e d i s t r i b u t e d , a p p l y i n g b y a n a l o g y th e p r e s c r i b e d
rules .

What is a complex penalty?

It is a penalty prescribed by law composed of three distinct
penalties, each forming a period; the lightest of them shall be the
minimum, the next the medium, and the most severe the maximum
period. (Art. 77)

When the penalty is composed of three distinct penalties.

the prescribes a penalty composed of three distinct
770
penalties, each one shall form a period.

771
 COMPLEX PENALTY Art. 77

Example: temporal to death (Art.

Maximum — Death.
Medium — perpetua (this is between reclusidn
temporal and death).
Minimum — reclusidn temporal.

Application by analogy of the rules.

Examples:
1. Art. 114, par. 3, provides a penalty of prisidn mayor to
death. The penalty is composed of four distinct penalties,
namely, prisidn mayor, reclusidn temporal, reclusidn
perpetua, and death.
The m a x i m u m period mu s t be d eath , i t being
indivisible; the medium period must be reclusidn perpetua,
it being also indivisible; and the minimum period must be
composed of prisidn mayor and reclusidn temporal.
2. Art. 294, par. 2, provides a penalty of reclusidn temporal
in its medium period to reclusidn perpetua. The penalty is
composed of two distinct penalties.
The m a x i m u m is reclusidn perpetua, it b ein g
indivisible; the med iu m is reclusidn temporal in its
maximum period; and the minimum is reclusidn temporal
in its medium period.

772
 INDETERMINATE SENTENCE LAW
(Act No. 4103 as amended by Act No. 4225)

AN T O P R O V I D E FO R A N I N D E T E R M I N A T E SEN-
TENC E AN D PARO L E FO R AL L P E R S O N S CO NV IC T E D O F
CE RT AIN CRIME S B Y TH E CO URT S O F TH E P H I L I P P I N E
ISLANDS; TO CRE AT E A B O AR D OF I N D E T E R M I N A T E SEN-
TENC E AN D T O P R O V I D E F U N D S T H E R E F O R AN D FO R
OTHE R P U R P O S E S .

SECTION 1. Hereafter, in imposing a prison sentence for an

offense punished by the Revised Penal Code, or its amendments, the
court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code, and the minimum of which shall be within the range of the pen-
alty next lower to that prescribed by the Code for the offense; and if
the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same. (As
amended by Act No. 4225)
SECTION 2. This Act shall not apply to persons convicted of
offenses punished with death penalty or life-imprisonment; to those
convicted of treason, conspiracy or proposal to commit treason; to those
convicted of misprision of treason, rebellion, sedition or espionage; to
those convicted of piracy; to those who are habitual to
those who shall have escaped from confinement or evaded sentence; to
those who having been granted conditional pardon by the Chief Execu-
tive shall have violated the terms thereof; to those whose maximum
term of imprisonment does not exceed one year, nor to those already
sentenced by final judgment at the time of approval of this Act, except
as provided in Section five hereof. (As amended by Act No. 4225)
SECTION 3. There is hereby created a Board of Pardons and
Parole to be composed of the Secretary of Justice who shall be its

772
 INDETERMINATE SENTENCE LAW

chairman, and four members to be appointed by the President, with

the consent of the Commission on Appointments who shall hold office
for a term six years: Provided, That one member of the board shall
be a trained sociologist, one a clergyman or educator, one psychiatrist
unless a trained psychiatrist be employed by the board, and the other
members shall be persons qualified for such work by training and
experience. At least one member of the board shall be a woman. Of
the members of the present board, two shall be designated by the
President to continue until December thirty, nineteen hundred and
sixty-nine. In case of any vacancy in the membership of the Board, a
successor may be appointed to serve only for the unexpired portion of
the term of the respective members. (As amended by R.A. No. 4203,
approved June 19, 1965.)
SECTION 4. The Board of Pardons and Parole is authorized to
adopt such rules and regulations as may be necessary for carrying
out its functions and duties. The Board is empowered to call upon
any bureau, office, branch, subdivision, agency, or instrumentality
of the Government for such assistance as it may need in connection
with the performance of its functions. A majority of all the members
shall constitute a quorum and a majority vote shall be necessary to
arrive at a decision. Any dissent from the majority opinion shall be
reduced to writing and filed with the records of the proceedings. Each
member of the Board, including the Chairman and Executive Officer,
shall be entitled to receive as compensation Fifty pesos for each
meeting actually attended by him, notwithstanding the provisions
of Sec. 259 of the Revised Administrative Code, and in the addition
thereto, reimbursement of and necessary traveling expenses
incurred in the performance of duties: Provided, however, That the
Board meeting will not be more than three times a week. (As amended
by R.A. No. 4203, approved June 19, 1965.)
SECTION 5. It shall be the duty of the Board of Indeterminate
Sentence to look into the physical, mental and moral record of the
prisoners who shall be eligible to parole and to determine the proper
time of release of such prisoners. Whenever any prisoner shall have
served the minimum penalty imposed on him, and it shall appear to
the Board of Indeterminate Sentence, from the reports of the prison-
er's work and conduct which may be received in accordance with the
rules and regulations prescribed and from the study and investigation
made by the Board itself, that such prisoner is fitted by his training
for release that there is a reasonable probability that such prisoner

773
 INDETERMINATE SENTENCE LAW

will live and remain at liberty without violating the law, and that
such release will not be incompatible with the welfare of society, said
Board of Indeterminate Sentence may, in its discretion, and in accord-
ance with the rules and regulations adopted hereunder, authorize the
release of such prisoner on parole, upon such terms and conditions as
are herein prescribed and as may be prescribed by the Board. The said
Board of Indeterminate Sentence shall also examine the records and
status of prisoners who shall have been convicted of any offense other
than those named in Section two hereof, and have been sentenced for
more than one year by final judgment prior to the date on which this
Act shall take effect, and shall make recommendations in all such
cases to the Governor General (President of the Philippines) with
regard to the parole of such prisoners as they shall deem qualified
for parole as herein provided, after they shall have served a period
of imprisonment not less than the minimum period for which they
have been sentenced under this Act for the same offense.
SECTION 6. Every prisoner released from confinement on parole
by virtue of this Act shall, at such times and in such manner as may
be required by the conditions of his parole, as may be designated by
the said Board for such purpose, report personally to such government
officials or other parole officers hereafter appointed by the Board of
Indeterminate Sentence for a period of surveillance equivalent to
the remaining portion of the maximum sentence imposed upon him
or until final release and discharge by the Board of Indeterminate
Sentence as herein provided, x x x. The limits of residence of such
paroled prisoner during his parole may be fixed and from time to time
changed by the said Board in its discretion. If during the period of sur-
veillance such paroled prisoner shall show himself to be a law-abiding
citizen and shall not violate any of the laws of the Philippine Islands,
the Board of Indeterminate Sentence may issue a final certification
of release in his favor, which shall entitle him to final release and
discharge.

SECTION 7. The Board shall file with the court which passed
judgment on the case and with the Chief of Constabulary, a certi-
fied copy of each order of conditional or final release and discharge
issued in accordance with the provisions of the next preceding two
sections.
SECTION 8. Whenever any prisoner released on parole by virtue
of this Act shall, during the period of surveillance, violate any of the

774
 INDETERMINATE SENTENCE LAW

of his parole, the Board of Indeterminate Sentence may

issue an order for his arrest which may be served in any part of the
Philippine Islands by any police officer. In such case the prisoner so
rearrested shall serve the remaining unexpired portion of the maxi-
mum sentence for which he was originally committed to prison, unless
the Board of Indeterminate Sentence shall, in its discretion, grant a
new parole to the said prisoner. (As amended by Act No. 4225) x x x

The court must determine two penalties.

The court must, instead of a single fixed penalty, determine
two penalties, referred to in the Indeterminate Sentence Act as the
"MAXIMUM" and "MINIMUM" terms.
The law should be applied in imposing a prison sentence for a
crime punishable either by special law or by the Revised Penal Code.

When the crime is punished by a special law —

If the offense is punished by a special law, the court shall
sentence the accused to an indeterminate penalty, the maximum
term of which shall not exceed the maximum fixed by said law and
the minimum term shall not be less than the minimum prescribed
by the same. (Sec. 1, Act No. 4103)

When the crime is punished by the Code —

If the offense is punished by the Revised Penal Code, the
court shall sentence the accused to an indeterminate penalty, the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the
Revised Penal Code, and the minimum term of which shall be within
the range of the penalty next lower to that prescribed by the Code for
the offense. (Sec. 1, Act No. 4103 as amended by Act No. 4225)
The court cannot put the minimum penalty in the same period
and the same degree as the maximum penalty, because the minimum
penalty "shall be within the range of the penalty next lower to that
prescribed by the Code for the offense."
The penalty next lower must be based on the penalty prescribed
by the Code for the offense, without considering in the meantime the

775
 INDETERMINATE SENTENCE LAW

modifying circumstances, such as, the mitigating or aggravating

circumstances. (People vs. Gonzales, 73 Phil. 549, 552)
In determining the "minimum" penalty, Act No. 4103 , as
amended, confers upon the courts in fixing the penalties the widest
discretion that the courts have ever had. (People vs. Ducosin, 59 Phil.
Basan vs. People, No. L-39483, Nov. SCRA 275,
277)
In determining the minimum term, it is left entirely within
the discretion of the court to fix it anywhere within the range of the
penalty next lower without reference to the periods into which it may
be subdivided. (People vs. Ducosin, supra, at 117)
Under the Indeterminate Sentence Law (Act No. 4103 , as
amended), if the offense is punishable under the Revised Penal
Code, the minimum penalty should be within any of the periods of
the penalty next lower in degree to that prescribed by law, and the
maximum thereof should be within the proper period of the penalty
that may be imposed were the sentence is a straight penalty. (Basan
vs. People, supra, 277)

Note: This is not in accordance with the ruling in People vs.

Ducosin, supra.

The mitigating or aggravating circumstance is required to

be considered only in the imposition of the maximum term of the
indeterminate sentence. (People vs. De Joya, 98 Phil. 238, 240)

Hence, if the minimum term of the indeterminate sentence

is arresto mayor in its minimum and medium periods, which has
a duration of 2 months and 1 day to 4 months, the court may
impose 4 months of imprisonment, even if there is no aggravating
circumstance.
For the same reason, the may impose 2 months and 1 day,
even if there is an aggravating circumstance, it being discretionary to
the court to impose the minimum term anywhere within its range.
When there is a privileged mitigating circumstance, so that
the penalty has to be lowered by one degree, the starting point for
determining the term of the indeterminate penalty is the
penalty next lower from that prescribed by the Code for the offense.
(People vs. Gonzales, 73 Phil. 549, 552)

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 INDETERMINATE SENTENCE LAW

Examples of application of Indeterminate Sentence Law —

Under Special law:
A is convicted of illegal possession of firearm punishable by
imprisonment from one year and one day to five years.
The court can impose an indeterminate sentence from 2 years
and 1 day, as the minimum term, to 4 years, as the maximum term;
2 years and 1 day to 3 years; or 3 years and 1 day to 5 years.
The maxi mu m term of each of the different examples does
not exceed the maximum of 5 years prescribed by the law, and the
minimum term is not less than the minimum of 1 year and 1 day
prescribed by the said law.

Under the Revised Penal Code:

A is convicted of falsification of official document committed by
a public officer penalized by prision mayor. There is one mitigating
circumstance of plea of guilty.
To determine the penalty next lower, disregard first the miti-
gating circumstance of plea of guilty. prision mayor in its full
extent, the penalty prescribed by the Code for the offense, should
be the basis, and not prision mayor minimum, because it is not the
penalty "prescribed by the Code for the
Prision mayor min i mu m becomes the proper penalty only
because of the presence of the mitigating circumstance of plea of
guilty. The penalty next lower is correccional.
Therefore, the indeterminate sentence will be:

MAXIMUM — mayor minimum, its proper period after

considering the mitigating circumstance.
MINIMUM — prisidn correccional, in any of its periods or
anywhere within the range prision correccional
without reference to any of its periods.

The maximum term is determined according to the rules of

the Code.
The maximum term of the indeterminate penalty is determined
in any case punishable under the Revised Penal Code in accordance

777
 INDETERMINATE SENTENCE LAW

with the rules and provisions of the Code exactly as if the Indeter-
minate Sentence Law had never been enacted.
The rules and provisions which must be applied to determine the
maximum term of the indeterminate penalty are those provided in
Arts. 46, 48, 50 to 57, 61 , 62 (except par. 5), 64, 65, 68, 69, and 71.

The rules of the Code are not applicable in fixing the mini-
mum term.
The rules and provisions in those articles, particularly Arts. 50
to 57, 62, 64 and 65, are not applicable in fixing the minimum term
of the indeterminate penalty. The duration of the minimum term is
within the range of the penalty next lower to that prescribed by the
Code for the offense, without regard to its three periods. The court has
the discretion to fix as the minimum term any period of imprisonment
within the penalty next lower to that prescribed by the Code for the
offense.

When modifying circumstances considered.

Under the Indeterminate Sentence Law, the maximum term
of the penalty shall be which, in view of the attending circum-
stances, could be properly under the Revised Penal Code, and
the minimum shall be the range of the penalty next lower to
that for the offense, without first considering any modifying
circumstance attendant to the commission of the crime. The determi-
nation of the minimum penalty is left by law to the sound discretion
of the court and it can be anywhere within the range of the penalty
next lower without any reference to the periods into which it might
be subdivided. The modifying circumstances are considered only in
the imposition of the maximum term of the indeterminate sentence.
(People vs. Gabres, 267 SCRA 581)

Illustrations of indeterminate penalty based on Arts. 61,

64, 68, 69, etc. of the Revised Penal Code.
1. Indeterminate penalty, when neither mitigating circumstance
nor aggravating circumstance attended the commission of the
crime. (Art. 64, par. 1)
A was prosecuted for, and was found guilty after a regular
trial of, homicide under Art. 249 which prescribes the penalty

778
 INDETERMINATE SENTENCE LAW

temporal. There being no mitigating or

circumstance, the maximum term of the
which is temporal, should be imposed in the medium
period. (Art. 64, par. The minimum term of the
penalty is anywhere within the range prisidn mayor, the penalty
next lower from reclusidn temporal (Art. 71), with or without
reference to the period into which it may be

Indeterminate penalty, when there is one ordinary mitigating

circumstance. (Art. 64, par. 2)
In the preceding example, if A pleaded guilty before the
presentation of evidence by the prosecution, there being no
aggravating circumstance to offset it, the maximum term of the
indeterminate penalty, which is reclusidn temporal, should be
imposed in the minimum period. (Art. 64, par. 2) The minimum
term of the indeterminate penalty is also anywhere within the
range of prisidn mayor, the penalty next lower from reclusidn
temporal, with or without reference to the period into which it
may be subdivided. His plea of guilty is required to be considered
(by way of mitigation) only in the imposition of the maximum
term of his sentence. (People vs. De Joya, 98 Phil. 238, 240)

Indeterminate penalty, when there is only an aggravating cir-

cumstance. (Art. 64, par. 3)
In the example under No. 1, if in the execution of the
crime concurred the generic aggravatin g circumstances of
relationship (Art. 15, R.P.C.) and that it was committed with
insult or in disregard of the respect due the offended party on
account of his rank or age (Art. 14, No. 3, R.P.C), which shall
be merged into one circumstance (People vs. Kho Choc, 50 O.G.
1667), the penalty imposable on A is reclusidn temporal in its
maximum period. (Art. 64, No. 3, R.P.C.) The minimum term of
the indeterminate penalty is also anywhere within the range of
prisidn mayor with or without reference to the period into which
it may be subdivided.
Indeterminate penalty, when there are mitigating and aggravat-
ing circumstances. (Art. 64, par. 4)
In the example under No. 1, if after committing homicide
at nighttime purposely sought by A to better accomplish his
purpose (Art. 14, par. 6), he surrendered voluntarily to the agent

779
 INDETERMINATE SENTENCE LAW

of authority and during the arraignment pleaded guilty to the

charge (Art. 13, par. 7), there is one mitigating circumstance
left after offsetting the aggravating circumstance of nighttime
with the two mitigating circumstances. Hence, the penalty of
temporal should be imposed in the minimum period.
(Art. 64, par. 4)
The MAXIMUM of the indeterminate penalty is reclusion
temporal minimum and the MINIMUM is prision mayor in any
of its periods or anywhere within its range.
Indeterminate penalty, when the crime committed is complex
under Art. 48.
A was convicted of a complex crime of frustrated homicide
with assault upon an agent of a person in authority under Art.
249, in relation to Art. 6, Art. 148, and Art. 48 of the Revised
Penal Code. The penalty for homicide is temporal.
Being frustrated, the penalty should be one degree lower
(Art. 50) or mayor. The penalty for assault is prisidn
correccional in its medium and maximum periods. Therefore,
the penalty for the complex crime is prisidn mayor, the penalty
for the graver offense, the same to be applied in its maximum
period. The MAXIMUM of the indeterminate penalty is prisidn
mayor maximum and the MINIMUM is prisidn correccional in
its maximum period. (People vs. 92 Phil. 877)

In Lontoc vs. People, 74 Phil. 513 , 520, where the accused

was convicted of complex crime of estafa through falsification of
a public document (Art. 315, case No. 4, in connection with Arts.
171 and 48 of the Code), and the penalty is prisidn mayor to be
applied in its maximum period plus a fine not to exceed
(the penalty for falsification which is the graver offense), the
MAXIMUM of the indeterminate penalty is within the maximum
period of prisidn mayor and the MINIMUM is within that next
lower in degree to prisidn mayor, namely, prisidn correccional.
Indeterminate penalty, when the penalty is next lower by two
degrees than that prescribed by law for the crime threatened and
there is one aggravating circumstance.
A threatened to kill B if the latter would not give him a
certain sum of money. A failed to attain his purpose, because
he was arrested by the police upon complaint by B. Under Art.

780
 INDETERMINATE SENTENCE LAW

282, No. 1, of the Revised Penal Code, the crime of grave threats,
when the offender did not attain his purpose, is punishable with
a penalty next lower by two degrees than that prescribed by law
for the crime which in this case is homicide. The
penalty for homicide is temporal. In the execution of
the crime concurred the generic aggravating circumstances of
relationship (Art. 15, R.P.C.) and that it was committed with
insult or in disregard of the respect due the offended party on
account of his rank or age (Art. 14, No. 3, R.P.C), which shall
be merged into one circumstance.

Held: The penalty imposable on A is correccional

in its maximum period or from 4 years, 2 months and 1 day to
6 years. (People vs. Kho Choc, 50 O.G. 1667)
It will be noted that the penalty of reclusidn temporal, the
penalty for the crime threatened to be committed, is lowered
first by two degrees to determine the penalty for the crime of
grave threats actually committed by A, before fixing the latter
penalty in its proper period. The penalty of prisidn correccional
was fixed in its maximum period, because of the presence of one
aggravating circumstance of relationship or disregard of respect
due the offended party.
Therefore, the maximum term of the indeterminate penalty
is prisidn correccional in its maximum period and the minimum
term of the indeterminate penalty is anywhere within the range
of arresto mayor, the penalty next lower from prisidn correc-
cional.

7. Indeterminate penalty, when the accused is convicted a complex

crime and there are two mitigating circumstances without any
aggravating circumstance. (Arts. 48, and 64, par. 5)
The crime committed is estafa thru falsification by a public
officer under No. 4, Art. 315, in connection with Art. 171, of the
Revised Penal Code. The penalty to be imposed is that which is
provided for the more serious offense to be applied in its maximum
period, pursuant to Art. 48, it being a complex crime. The penalty
for the more serious offense, which is falsification, is prisidn
mayor in its full extent and fine. There being two mitigating
circumstances of (1) voluntary surrender and (2) plea of guilty,
without any aggravating circumstance, the penalty next lower to
that provided by law should be imposed. (Art. 64, par. 5)

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 INDETERMINATE SENTENCE LAW

For purposes of the Indeterminate Sentence Law, the

penalty next lower should be determined without regard as
to whether the basic penalty provided by the Code should be
applied in its maximum or minimum period as circumstances
modifying liability may require.
When however — and this may be the only exception to the
rule — the number of the mitigating circumstances is such as to
entitle the accused to the penalty next lower in degree, this penalty
in the application of the Indeterminate Sentence Law should be
the starting point for the determination of the penalty next lower
in degree (the MINIMUM of the indeterminate penalty).
For the purpose of determining the penalty next lower in
degree, the penalty that should be considered as the starting
point is the whole mayor, it being the penalty prescribed
by law for the crime of falsification (Art. and not
mayor in its maximum period which happens to be the penalty,
because the crime committed is complex under Art. 48.
The penalty next lower from prisidn mayor is prisidn
correccional and this latter penalty should be applied in its
maximum period, as the MAXIMUM of the indeterminate
penalty. The MINIMUM of the indeterminate penalty is arresto
mayor, the penalty next lower in degree, which may be imposed
by the court in any of its periods.
The penalty next lower in degree (the MINIMUM of the
ind etermin ate penalty) should be determined first, before
imposing the penalty prescribed by law for the offense in its
proper period, because Sec. 1 of the Indeterminate Sentence Law
provides that the MINIMUM of the indeterminate penalty "shall
be within the range of the penalty next lower to that prescribed
by the Code for the offense."

Although the penalty prescribed by the Code for the offense

is prisidn mayor in its full extent, in this case, it should not be
the starting point for determining the MINIMUM, because there
is a privileged mitigating circumstance. This is the exception to
the general

The penalty next lower in degree should be the starting

point for determining the MINIMUM of the indeterminate
penalty.

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 INDETERMINATE SENTENCE LAW

Thus — correccional will be the starting point.

Arresto mayor will be the penalty next lower. (People vs.
Gonzalez, 73 Phil. 549, 552)

When the accused is guilty a complex crime, the penalty

immediately lower is the next below the penalty provided for
the gravest crime. (People vs. Caburao, C.A., 54 O.G. 8261)
In the case of People vs. Fulgencio, 92 Phil. 1069, where the
accused, a minor 17 years old, committed two crimes of parricide
resulting from a single act of exploding a home-made bomb under
the house occupied by his the Supreme Court held
that since the penalty for the crime committed is death (Art. 48),
it being the maximum of the penalty of perpetua to
death for parricide (Art. 246), and there is a privileged mitigat-
ing circumstance of minority (Art. 68), the penalty next lower
is reclusion perpetua.

It will be noted that the penalty of perpetua to

death was first applied in the maximum (death), the crime being
complex, and then lowered by one degree from the maximum.
This ruling does not follow the ruling in the case of People
vs. Gonzalez, supra, which requires that the penalty prescribed
by the Code for the offense be lowered first by one degree, because
of the privileged mitigating circumstance, and then the lower
penalty to be applied in its maximum period. Had this ruling in
the Gonzalez case been followed, the penalty imposed would have
been prisidn mayor in any of its periods, as the MINIMUM, to
reclusidn temporal in its maximum period, as the MAXIMUM.
The penalty next lower from reclusidn perpetua to death is
reclusidn temporal. (Art. 61 , par. 2) Reclusidn temporal is applied
in its maximum period, because the accused was found guilty of
complex crime.
The accused pleaded guilty to and was convicted of the
crime of direct assault upon a person in authority with homicide.
This being a complex crime, the penalty for the more serious
crime should be imposed, the same to be applied in its maximum
period. (Art. 48, Revised Penal Code) The more serious crime is
homicide punishable by reclusidn
The accused, who was 17 years, 9 months and 12 days
old on the date of the commission of the crime, has to his

783
 INDETERMINATE SENTENCE LAW

credit two mitigating circumstances: the special or privileged

mitigating circumstance of minority (Art. 68, par. 2) and the
ordinary mitigating circumstance of plea of guilty. (Art. 13,
par. 7) Therefore, under Art. 64, par. 5 (should be Art. 68, par.
2) of the Revised Penal Code, the penalty imposable is the
penalty next lower to that prescribed by law. Under Article
71 , Revised Penal Code, the penalty next lower to
temporal is mayor. Because of the complex nature of
the crime committed by the accused, the penalty of prisidn
mayor is to be applied in its maxi mu m period. However,
having in his favor the ordinary mitigating circumstance of
plea of guilty without any offsetting aggravating circumstance,
applying Art. 64 , par. 2 of the Revised Penal Code, the penalty
of prisidn mayor maximum should be imposed in its minimum
range.
Parenthetically, We must state that the lower court erred
in the imposition of the correct penalty — despite its proper
appreciation of the privileged mi ti gati n g circu mstance of
minority and the ordinary circumstance of plea of guilty in favor
of the appellant — because it applied first the imposable penalty
to its maxi mu m degree, i.e., reclusidn temporal maximum,
and then imposed the penalty immediately inferior to it, i.e.,
reclusidn temporal medium. This latter penalty is imposed as
the maximum of the indeterminate sentence, but applied in the
minimum range because of the ordinary mitigating circumstance
of plea of guilty. As the minimum of the indeterminate sentence,
it imposed the minimum of the penalty next lower, reclusidn
temporal minimum.
The proper method is to start from the penalty imposed
by the Revised Penal Code, i.e., reclusidn temporal; then
apply the privileged mitigating circumstance of minority and
determine the penalty immedi atel y inferior in degree, i.e.,
prisidn mayor; and finally apply the same in its maximum
degree but within the minimum range thereof because of the
ordinary mitigating circumstance of plea of guilty. Prisidn
mayor being the maximum of the indeterminate sentence, the
minimum of the indeterminate penalty is within the range of
the penalty next lower to it as prescribed by the Revised Penal
Code, i.e., prisidn (People vs. Gonzalez, 73 Phil.
549, 551-552)

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 INDETERMINATE SENTENCE LAW

All told, and applying now the Indeterminate Sentence

Law, the accused should be sentenced to an indeterminate pen-
alty of not less than years of correccional, to not
more than ten years and eight (8) months of mayor.
(People vs. Cesar, G.R. No. March 13, 1968, 22 SCRA
1024, 1028)

8. Indeterminate sentence, when there are privileged mitigating

and ordinary mitigating circumstances. (Arts. 68 and 64)
When there is a privileged mitigating circumstance (such
as, minority or incomplete defense) and ordinary mitigating
circumstance (such as, plea of guilty or voluntary surrender
to the authorities), the rule is: lower first the penalty pre-
scribed by the Code for the offense by one degree (because of
the privileged mitigating circumstance), using the scale in
Art. and make the penalty next lower as the starting point
for determining the MINIMUM of the indeterminate penalty.
Once the MINIMUM is determined, by lowering by another
degree, the penalty next lower, the penalty which is made
the starting point should be imposed in the proper period.
That penalty in the proper period will be the MAXIMUM of
the indeterminate penalty.

Problem:
A, a minor years and 2 months old, was found guilty
of murder upon a plea of guilty. The court suspended the
sentence and ordered the commitment of the minor to the
Training School for Boys in the in accordance
with Article 80. Because he became incorrigible in the
Training School for Boys, A was returned to the court for
the imposition of the proper penalty. (Art. 68) The court
imposed an indeterminate penalty of from five (5) years of
prisidn correccional, as the MINIMUM, to ten (10) years
and one (1) day prisidn mayor, as the MAXIMUM. Is
this penalty correctly imposed?
Yes. The penalty for murder is reclusidn temporal in
its maximum period to death. (Art. 248) The penalty next
lower in degree is prisidn mayor in its maximum period to
reclusidn temporal in its minimum and medium periods
(Art. 61 , par. 3), computed as follows:

785
 INDETERMINATE SENTENCE LAW

Death

Penalty for murder

Reclusidn perpetua

Max.
temporal MMee
dd. .
(12 years and 1 day to Min. One degree lower — MAXIMUM
20 years) of indeterminate sentence
Max.
Prisidn mayor Med..
(6 years and 1 day to Min. MINIMUM of indeterminate
12 years) sentence
Max. Med.
Prisidn correccional
(6 months and 1 day Min.
to 6 years)

There being a mitigating circumstance of plea of guilty,

without any aggravating circumstance to offset it, the penalty
one degree lower (prisidn mayor in its maxi mu m period to
reclusidn temporal in its minimum and medium periods) should
be imposed in its minimum period, which is prisidn mayor in its
maximum period.

Prisidn mayor maximum has a duration of from ten (10)

years and one (1) day to twelve (12) years. Prisidn correccional
in its maximum period to prisidn mayor in its minimum and
medium periods has a duration of from four (4) years, two (2)
months and one (1) day to ten (10) years. Hence, the sentence
imposed (from 5 years to 10 years and 1 day) by the court is
within the limits of the penalty prescribed by law. (See People
vs. Ong Ta, 70 Phil. 553 , 555; People vs. Cesar, supra)
9. Indeterminate penalty, when there are two privileged mitigating
and ordinary mitigating circumstances. (Arts. 68 and 69)
A, a minor under 18 years, killed B who was the unlawful
aggressor. A did not give sufficient provocation to B. But the
means employed by A to defend himself was not reasonable.
786
After killing B, A surrendered to the authorities.

787
 INDETERMINATE SENTENCE LAW

Held: There are two privileged mitigating circumstances

in this case, namely: (1) minority under Art. 68 , and (2)
incomplete self-defense under Art. 69. The reclusion
temporal prescribed for homicide should be lowered by two
degrees or prision correccional, which should be applied in
the m i n i mu m period, in view of one ordinary mi ti ga ti n g
ci rcumstan ce of vol un tary surrender. The i n d e t e r m i n a t e
penalty is not less than 2 months and days of arresto mayor
and not more than 1 year, 1 month and 11 days of prision
correccional. (People vs. G.R. No. Oct. 18,
1954, 96 Phil. 963
10. Indeterminate penalty, when there is incomplete defense, without
any ordinary mitigating or aggravating circumstance. (Art.
69)
A woman who stabbed and killed a man who had placed his
hand on her upper thigh, without any provocation on her part,
was given a reduced penalty by two degrees. (Art. 69) The pen-
alty for homicide is temporal. Two degrees lower (Art.
61 , in relation to Art. 71) is correccional; and pursuant
to the Indeterminate Sentence Law, the indeterminate penalty
is from arresto mayor in its medium period, as the MINIMUM,
to prisidn correccional in its medium period, as the MAXIMUM.
(People vs. Jaurigue, 76 Phil. 174, 183)

Indeterminate penalty, when there is incomplete defense with two

ordinary mitigating circumstances, and without any aggravating
circumstance. (Arts. 69 and 64, par. 5)
A killed B in incomplete self-defense. There was unlawful
aggression on the part of B and lack of sufficient provocation
on the part of A. But the means employed by A in defending
himself was not reasonable. A acted with obfuscation and, after
killing B, surrendered himself to the authorities. There was no
aggravating circumstance.
Held: The penalty of reclusidn temporal for homicide
should be reduced by two degrees (Art. 69) and because of two
ordinary mitigating circumstances without any aggravating
circumstance, the reduced penalty should be further reduced
by another degree or arresto mayor in its medium period or 2
months and 1 day. (People vs. Nicolas, C.A., 50 O.G. 2133)

788
 INDETERMINATE SENTENCE LAW

12. Indeterminate penalty, when the penalty prescribed by the Code

is reclusion temporal in its maximum period to death (penalty
for murder) and there are two or more mitigating circumstances
and no aggravating circumstance. (Art. 64, par. 5)
A committed murder, qualified by treachery, with the miti-
gating circumstances of voluntary plea of guilty and voluntary
surrender, and without any aggravating circumstance.
Held: Under Art. 64, No. 5 of the Revised Penal Code, the
next lower penalty should be imposed, that is, prision mayor in
its maximum period to temporal in its medium period
or from 10 years and 1 day to 17 years and 4 months. (People
vs. Soriano, 70 Phil. 334)
The penalty for murder is temporal in its
maxi mu m period to death. (Art. 248 ) One degree lower is
mayor in its maximum period to temporal in its
medium period, in accordance with Art. 61 , No. 3, of the Code.

The penalty prisidn mayor maximum to reclusidn temporal

medium should be subdivided into three periods, as follows:

Time included in Time included Time included Time included

the entire pen- in its minimum in its medium in its maximum
alty period period period

From 10 From 10 From 12 From 14 10

and 1 day to 17 and 1 day to 12 5 mos. and 11 mos. and 21 days
yrs. and 4 mos. 5 mos. and days to 14 to 17 yrs. and 4
10 days. 10 mos. and 20 mos.
days.

The penalty next lower, as the MAXIMUM of the indetermi-

nate penalty, is to be imposed in the medium period, because the
two mitigating circumstances are already considered in lowering
the penalty by one It is not proper to consider any one or
both of them again in fixing the proper period of the penalty to
be imposed. Therefore, as regards the penalty next lower, there
is neither mitigating nor aggravating circumstance.
Hence, the MAXIMUM of the indeterminate penalty is the
medium period prisidn mayor maximum to reclusidn temporal
medium or 12 years, 5 months and days to 14 years, 10 months

789
 INDETERMINATE SENTENCE LAW

and 20 days (at the discretion of the court). The MINIMUM of

the indeterminate penalty is anywhere within the range of the
penalty next lower or correccional maximum to
mayor medium. (Art. 61 , par. 3)
13. Indeterminate penalty, when the crime committed is robbery in
inhabited house, and the penalty is to be lowered by one degree.
A pleaded guilty to the charge of robbery in an inhabited
house and penalized in Art. 299 of the Code. The penalty
for robbery in an inhabited house is temporal. There
being no allegation that A was armed and it appearing that the
value of the property taken did not exceed P250 , the penalty to
be imposed is the minimum period of the penalty next lower,
that is, prisidn mayor in its minimum period. That penalty is to
be imposed in the medium period, there being no aggravating or
mitigating circumstance. The MINIMUM of the indeterminate
penalty is within the range of the penalty next lower in degree
from prisidn mayor in its full extent (disregard first the fact that
it shall be imposed in the minimum period). The MAXIMUM
of the indeterminate penalty is the medium period of prisidn
mayor minimum or 6 years, 8 months and 1 day to 7 years and
4 months. (People vs. De Lara, 98 Phil. 584, 586)

Not applicable when unfavorable to the accused.

A was convicted of illegal possession of grease guns and 2
Thompson sub-machine guns punishable by imprisonment from 5 years
to 10 years. The trial court imposed a sentence that the accused should
suffer imprisonment of 5 years and 1 day. Is this penalty correct?
Yes, because in cases where the application of the law on
indeterminate sentence would be unfavorable to the accused, resulting
in the lengthening of his prison sentence, said law on indeterminate
sentence should not be applied. If we had no law on indeterminate
sentence, considering the plea of guilty entered by the appellant, the
trial court could well and lawfully have given him a prison sentence
of five (5) years. If we are to apply the law, the prison term would
have to be more than five (5) years, as the minimum could not be less
than five years. (People vs. Nang Kay, 88 Phil. 515, 519)
The law on indeterminate sentence as a rule is intended to favor
the defendant in a criminal case particularly to shorten his term of
imprisonment depending upon his behavior, etc.

790
 INDETERMINATE SENTENCE LAW

Indeterminate Sentence Law not applicable to the following:

Persons convicted of offenses punished with death penalty
or life imprisonment.
2. Those convicted of treason, conspiracy or proposal to com-
mit treason.
3. Those convicted of misprision of treason, rebellion, sedition
or espionage.
4. Those convicted of piracy.
5. Those who are habitual delinquents.
6. Those who shall have escaped from confinement or evaded
sentence.
7. Those who violated the terms of conditional pardon granted
to them by the Chief Executive.
8. Those whose maximum term of imprisonment does not
exceed one year.
9. Those who, upon the approval of the law (December 5,
1933), had been sentenced by final judgment. (Sec. 2, Act
No. 4103)
10. Those sentenced to the penalty of destierro or suspension.

"Persons convicted of offenses punished with death penalty

or life imprisonment."
The trial court did not err in convicting the appellant of simple
rape which is penalized with perpetua. But it erred in giving
him the benefit of the Indeterminate Sentence Law. Article 63 of the
Revised Penal Code (not its Article 64[1], which was cited by the lower
court), applies to the case. (People vs. No. L-32996, Aug. 21 ,
1974, 58 SCRA 505, 510-511)
A is accused and convicted of murder punishable with the penalty
of temporal in its maximum period to death. Two mitigat-
ing circumstances of voluntary surrender and plea of guilty are to be
considered in favor of A. Is he entitled to an indeterminate penalty?

The Indeterminate Sentence Law uses the word

not the word "punishable." It would seem that it is the penalty actu-

791
 INDETERMINATE SENTENCE LAW

ally imposed, not the penalty that may be imposed, that should be
considered.
In the case of People vs. Roque, 90 Phil. 142, 146, the accused,
who was years old and convicted of murder, was sentenced to an
indeterminate penalty of from 10 years and 1 day of prision mayor
to 17 years, 4 months and 1 day reclusion temporal.
In the case People vs. 103 Phil. the accused
was also years old and convicted of murder, but the provisions of
the Indeterminate Sentence Law were not applied because he was
convicted of an offense punished with death, although the penalty
actually imposed was imprisonment of 12 years and 1 day.
In imposing an indeterminate sentence upon the accused, the
Court hereby overrules the contrary doctrine in People vs. Colman,
et 103 Phil. 6, Resolution of March 26, 1958, pp. 19-20, holding
that the Indeterminate Sentence Law (Act No. 4103 , as amended by
Act No. 4225) is not applicable to a case similar to that of the accused.
The penalty actually imposed upon this accused not being death, he
is entitled to the benefits of the Indeterminate Sentence Law. (People
vs. Moises, No. L-32495, Aug. 66 SCRA People vs.
G.R. No. 66324, July 6, 1990, 187 SCRA 248, 256)

The Indeterminate Sentence Law is applicable to recidivist.

While habitual delinquents are not entitled to an indeterminate
sentence, a recidivist for the first time may be given the benefits of
the law. (People vs. Yu Lian, C.A., 40 O.G. 4205; People vs. Venus,
63 Phil. 435, 442)

"Those who evaded the service of the sentence."

A was sentenced to destierro. While serving sentence, A entered
the prohibited area and committed robbery therein. Is A entitled to
an indeterminate sentence in case he is found guilty of robbery? No,
because by entering the prohibited area, he evaded the service of his
sentence. The Indeterminate Sentence Law is not applicable.
Defendant was found guilty of robbery. By his own admission,
appearing in his confession, Exhibit F, it appears that defendant is
an escaped prisoner. Held: He is not entitled to the benefits of the
determinate Sentence Law. (People vs. Rivera, C.A., 44 O.G. 123)

792
 INDETERMINATE SENTENCE LAW

"Those who shall have escaped from confinement."

A minor who escaped from the Philippine Training School for Boys
does not acquire the status of escaped prisoner as to be excluded from
the benefits bestowed by the Indeterminate Sentence Law, because
his confinement therein is not considered imprisonment. (People vs.
Perez, C.A., 44 O.G. 3884, citing People vs. 63 Phil. 868)
While there is evidence that prior to the incident in question the
appellant has had several brushes with the law, there is no showing
that he has been prosecuted and found guilty thereof. It appears that
he was an escapee from the National Mental Hospital. Later, the
appellant was convicted of homicide. Is he entitled to the benefits of
the Indeterminate Sentence Law?
It is true, as provided in Section 2 thereof, that the Indeter-
minate Sentence Law shall also not apply "to those who shall have
escaped from confinement or evaded sentence." However, we do not
think that the appellant's escape from the National Mental Hospital
falls within the purview of said provision. Confinement as a patient
in the National Mental Hospital is not imprisonment. By escaping
from said hospital, the appellant did not acquire the status of an
escaped prisoner as to be excluded from the benefits bestowed by the
Indeterminate Sentence Law. (People vs. Co, C.A., 67 O.G. 7451)

Those whose maximum period of penalty does not exceed

one year.
The Indeterminate Sentence Law does not apply to non-divis-
ible penalties. It covers only divisible penalties and does not include
indivisible penalties. (People vs. Gonzales, 148 SCRA 649)
Application of the Indeterminate Sentence Law is mandatory
where imprisonment would exceed one year. (People vs. Lee, Jr., 132
66)

A is convicted of a crime for which the penalty imposed is eight

(8) months prision correccional. Is A entitled to an indeterminate
penalty? No, because the penalty imposed does not exceed one year.
(People vs. Arellano, 68 Phil. 678, 683)

Indeterminate Sentence Law does not apply to destierro.

In view of the nature of the penalty of destierro, the convict is
not entitled to the provisions of the Indeterminate Sentence Law,

793
 INDETERMINATE SENTENCE LAW

since the benefits of the law are expressly granted to those who are
sentenced to imprisonment exceeding one year. (People vs.
No. 1583, June
This ruling applies to the penalty of suspension.

The application of the Indeterminate Sentence Law is

based on the penalty actually imposed.
Thus, if the accused wa s charged with the crime of acts of
punishable correccional (Art. 336), the duration
of which is from 6 months and 1 day to 6 years, and the court imposed
him 6 months and 1 day, the minimum correccional, the
Indeterminate Sentence Law does not apply, because the application of
that law is based upon the penalty actually imposed in the discretion of
the court. (People vs. 92 Phil. 239, 242; People vs. Moises,
No. Aug. 66 SCRA

Purpose.
The purpose of the Indeterminate Sentence Law is uplift
and redeem valuable human material, and prevent unnecessary and
excessive deprivation of personal liberty and economic
(People vs. Ducosin, 59 Phil.
The Indeterminate Sentence Law aims to individualize the
administration of our criminal law.

Factors to be taken into consideration by the court in fixing

the minimum penalty.
It is necessary to consider the criminal, first, as an individual
and, second, as a member of society.
Considering the criminal as an individual, some of the factors
that should be considered are: (1) his age, especially with reference
to extreme youth or old age; (2) general health and physical
conditions; (3) his mentality, heredity and personal habits; (4) his
previous conduct, environment and mode of life (and criminal record,
if any); (5) his previous education, both intellectual and moral; (6)
his proclivities and aptitudes for usefulness or injury to society; (7)
his demeanor during trial and his attitude with regard to the crime
committed; (8) the manner and circumstances in which the crime

794
 INDETERMINATE SENTENCE LAW

was committed; (9) the gravity of the offense. (Note that Section 2 of
Act No. 4103 excepts certain grave crimes — this should be kept in
mind in assessing the minimum penalties for analogous crimes.)
In consi deri ng the criminal as a member of society, his
relationship, first, toward his dependents, family and associates and
their relationship with him, and second, his relationship towards
society at large and the State, are important factors. The State is
concerned not only in the imperative necessity of protecting the social
organization against the criminal acts of destructive individuals
but also in redeeming the individual for economic usefulness and
other social ends. In a word, the Indeterminate Sentence Law aims
to individualize the administration of our criminal law to a degree
not heretofore known in this country. With the foregoing principles
in mind as guides, the courts can give full effect to the beneficent
intention of the Legislature. (People vs. Ducosin, 59 Phil.

Reason for fixing the MINIMUM and MAXIMUM penalties in

the indeterminate sentence.
Whenever any prisoner shall have served the minimum penalty
imposed on him, and it shall appear to the Board of Indetermi-
nate Sentence that such prisoner is fitted for release, said Board
may authorize the release of such prisoner on parole, upon such
terms and conditions as may be prescribed by the Board.
2. Whenever such prisoner released on parole shall, during the
period of surveillance, violate any of the conditions of his parole,
the Board may issue an order for his arrest. In such case, the
prisoner so rearrested shall serve the remaining unexpired por-
tion of the maximum sentence. 5 and 8, Act No. 4103)

3. Even if a prisoner has already served the minimum, but he is

not fitted for release on parole, he shall continue to serve im-
prisonment until the end of the maximum.

Mandatory.
It is mandatory in the cases specified therein, for it employs the
phrases "convicts shall be sentenced" and "the court shall sentence
the accused to an indeterminate sentence." (People vs. Yu Lian, C.A.,
40 O.G. 4205)

795
 PROBATION LAW

PRESIDENTIAL DECREE NO. 968,

AS AMENDED BY PRESIDENTIAL DECREE NO. 1257,
AND AS FURTHER AMENDED BY
BATAS BLG. 76 AND
PRESIDENTIAL DECREE NO. 1990

ESTABLISHING A PROBATION SYSTEM, APPROPRIATING

FUNDS THEREFOR AND FOR OTHER PURPOSES.
SECTION Title and Scope of the Decree. - This
Decree shall be known as the Probation Law of 1976. It shall
apply to all offenders except those entitled to the benefits under
the provisions of Presidential Decree Numbered Six Hundred
and Three and similar laws.
SEC. 2. Purpose. — This Decree shall be interpreted so
as to:
(a) Promote the correction and rehabilitation of an of-
fender by providing him with individualized treatment;
(b) Provide an opportunity for the reformation of a peni-
tent offender which might be less probable if he were to serve a
prison sentence; and
(c) Prevent the commission of offenses.
SEC. 3. Meaning of Terms. — As used in this Decree,
the following shall, unless the context otherwise requires, be
construed thus:
(a) is a disposition under which a defendant,
after conviction and sentence, is released subject to conditions
imposed by the court and the supervision of a probation
officer.
(b) means a person placed on probation.
(c) Officer" means one who investigates for
the court a referral for probation or supervises a probationer or
both.
SEC. 4. Grant of Probation. — Subject to the provisions
of this Decree, the trial court may, after it shall have convicted
and sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend the
execution of the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may
deem best: Provided, That no application for probation shall be
entertained
796
 PROBATION LAW

or granted if the defendant has perfected the appeal from the

judgment of conviction.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for probation
shall be filed with the trial court. The filing of the application
shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be
able. (As amended by PD 1257 and by PD 1990, Oct.
The provisions of Section 4 of Presidential Decree No. 968,
as above amended, shall not apply to those who have already
filed their respective applications for probation at the time of the
of this Decree. (Sec. 3 of PD 1990)
SEC. 5. Post- sentence Investigation. — No person shall
be placed on probation except upon prior investigation by the
probation officer and a determination by the court that the ends
of justice and the best interest of the public as well as that of the
defendant will be served thereby.
SEC. 6. Form of Investigation Report. — The inves-
tigation report to be submitted by the probation officer under
Section 5 hereof shall be in the form prescribed by the Probation
Administrator and approved by the Secretary of Justice.
SEC. 7. Period for Submission of Investigation Report.
— The probation officer shall submit to the court the investigation
report on a defendant not later than sixty days from receipt of
the order of said court to conduct the investigation. The court
shall resolve the application for probation not later than fifteen
days after receipt of said report. (As amended by PD 1257, Dec.
1, 1977)

Pending submission of the investigation report and the

resolution of the petition, the defendant may be allowed on
temporary liberty under his bail filed in the criminal case:
Provided, That in case where no bail was filed or that the
defendant is incapable of filing one, the court may allow the
release of the defendant on recognizance to the custody of a
responsible member of the community who shall guarantee his
appearance whenever required by the court.
SEC. 8. Criteria for Placing an Offender on Probation.
— In determining whether an offender may be placed on
probation, the court shall consider all information relative to the
character, antecedents, environment, mental and physical
condition of the

797
 PROBATION LAW

offender, and available institutional and community resources.

Probation shall be denied if the court finds that:
(a) The offender is in need of correctional treatment that
can be provided most effectively by his commitment to an institu-
tion; or
(b) There is an undue risk that during the period of pro-
bation the offender will commit another crime; or
(c) Probation will depreciate the seriousness of the of-
fense committed.
SEC. 9. Disqualified offenders. — The benefits of this
Decree shall not be extended to those:
Sentenced to serve a maximum term of imprisonment
of more than six (6) years;
(b) Convicted of subversion or any crime against the
national security or the public order;
(c) Who have previously been convicted by final judg-
ment of an offense punished by imprisonment of not less than one
month and one day and/or a fine of not less than Two Hundred
Pesos;
(d) Who have been once on probation under the
provisions of this Decree; and
(e) Who are already serving sentence at the time the
substantive provisions of this Decree became applicable pursuant
to Section 33 hereof. (As amended by BP 76, and PD 1990,
Oct.

SEC. 10. Conditions of Probation. — Every probation

order issued by the court shall contain conditions requiring that
the probationer shall:
(a) present himself to the probation officer designated to
undertake his supervision at such place as may be specified in
the order within seventy-two hours from receipt of said order;
(b) report to the probation officer at least once a month
at such time and place as specified by said officer.
The court may also require the probationer to:
(a) cooperate with a program of supervision;
(b) meet his family responsibilities;

798
 PROBATION LAW

(c) devote himself to a specific employment and not to

change said employment without the prior written approval of
the probation officer;
(d) undergo medical, psychological or psychiatric ex-
amination and treatment and enter and remain in a specified
institution, when required for that purpose;
(e) pursue a prescribed secular study or vocational train-
ing;
(f) attend or reside in a facility established for instruc-
tion, recreation or residence of persons on probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to ex-
cess;
(i) permit the probation officer or an authorized social
worker to visit his home and place of work;
reside at premises approved by it and not to change
his residence without its prior written approval; or
(k) satisfy any other condition related to the rehabilita-
tion of the defendant and not unduly restrictive of his liberty or
incompatible with his freedom of conscience.
11. of Probation Order. — A probation
order shall take effect upon its issuance, at which time the
court shall inform the offender of the consequences thereof and
explain that upon his failure to comply with any of the conditions
prescribed in the said order or his commission of another offense,
he shall serve the penalty imposed for the offense under which
he was placed on probation.

SEC. 12. Modification of Conditions of Probation.

— During the period of probation, the court may, upon
application of either the probationer or the probation revise
or modify the conditions or period of probation. The court shall
notify either the probationer or the probation officer of the filing
of such an applica- tion so as to give both parties an opportunity to
be heard thereon.
The court shall inform in writing the probation officer and
the probationer of any change in the period or conditions of pro-
bation.
SEC. 13. Control and Supervision of Probationer.
— The probationer and his probation program shall be under
799
 PROBATION LAW

the control of the court who placed him on probation subject to

actual supervision and visitation by a probation officer.
Whenever a probationer is permitted to reside in a place
under the jurisdiction of another court, control over him shall be
transferred to the Executive Judge of the Court of First Instance
of that place, and in such a case, a copy of the probation order,
the investigation report and other pertinent records shall be fur-
nished said Executive Judge. Thereafter, the Executive Judge to
whom jurisdiction over the probationer is transferred shall have
the power with respect to him that was previously possessed by
the court which granted the probation.
SEC. 14. Period of Probation. —
(a) The period of probation of a defendant sentenced to a
term of imprisonment of not more than one year shall not exceed
two years, and in all other cases, said period shall not exceed six
years.
(b) When the sentence imposes a fine only and the of-
fender is made to serve subsidiary imprisonment in case of insol-
vency, the period of probation shall not be less than nor be more
than twice the total number of days of subsidiary imprisonment
as computed at the rate established in Article thirty-nine of the
Revised Penal Code, as amended.
SEC. 15. Arrest of Probationer; Subsequent Disposi-
tions. — At any time during probation, the court may issue a
warrant for the arrest of a probationer for any serious violation
of the conditions of probation. The probationer, once arrested
and detained, shall immediately be brought before the court for
a hearing of the violation charged. The defendant may be admit-
ted to bail pending such hearing. In such case, the provisions
regarding release on bail of persons charged with a crime shall
be applicable to probationers arrested under this provision.
In the hearing, which shall be summary in nature, the
probationer shall have the right to be informed of the violation
charged and to adduce evidence in his favor. The court shall not
be bound by the technical rules of evidence but may inform
self of all the facts which are material and relevant to ascertain
the veracity of the charge. The State shall be represented by a
prosecuting officer in any contested hearing. If the violation is
established, the court may revoke or continue his probation and
modify the conditions thereof. If revoked, the court shall order
the probationer to serve the sentence originally imposed. An or-
der revoking the grant of probation or modifying the and

800
 PROBATION LAW

conditions thereof shall not be appealable. (As amended by PD

1257)
SEC. 16. Termination of Probation. — After the period
of probation and upon consideration of the report and recom-
mendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the
terms and conditions of his probation and thereupon, the case is
deemed terminated.
The final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a result of his
conviction and to fully discharge his liability for any fine imposed
as to the offense for which probation was granted.
The probationer and the probation officer each be
furnished with a copy of such order.
SEC. 17. Confidentiality of Records. — The investigation
report and the supervision history of a probationer obtained under
this Decree shall be privileged and shall not be disclosed directly
or indirectly to anyone other than the Probation Administration
or the court concerned, except that the court, in its discretion,
may permit the probationer or his attorney to inspect the afore-
mentioned documents or parts thereof whenever the best interest
of the probationer makes such disclosure desirable or helpful:
Provided, further, That any government office or agency engaged
in the correction or rehabilitation of offenders may, if necessary,
obtain copies of said documents for its official use from the proper
court or the Administration.

SEC. 18. The Probation Administration. — There is

hereby created under the Department of Justice an agency to be
known as the Probation Administration herein referred to as the
Administration, which shall exercise general supervision over all
probationers.
The Administration shall have such staff, operating units
and personnel as may be necessary for the proper execution of
its functions.
SEC. 19. Probation Administrator. — The Administra-
tion shall be headed by the Probation Administrator, hereinafter
referred to as the Administrator, who shall be appointed by the
President of the Philippines. He shall hold office during good
behavior and shall not be removed except for cause.
The Administrator shall receive an annual salary of at least
Forty thousand pesos. His powers and duties shall be to:

801
 PROBATION LAW

(a) Act as the executive officer of the

(b) Exercise supervision and control over all probation
officers;
(c) Make annual reports to the Secretary of Justice, in
such form as the latter may prescribe, concerning the operation,
administration and improvement of the probation system;
(d) Promulgate, subject to the approval of the Secretary
of Justice, the necessary rules relative to the methods and pro-
cedures of the probation process;
(e) Recommend to the Secretary of Justice the appoint-
ment of the subordinate personnel of his Administration and
other offices established in this Decree; and
Generally, perform such duties and exercise such pow-
ers as may be necessary or incidental to achieve the objectives of
this Decree.
SEC. 20. Assistant Probation Administrator. — There
shall be an Assistant Probation Administrator who shall assist
the Administrator and perform such duties as may be assigned to
him by the latter and as may be provided by law. In the absence of
the Administrator, he shall act as head of the Administration.
He shall be appointed by the President of the Philippines
and shall receive an annual salary of at least Thirty-six thousand
pesos.
SEC. 21. of the Administrator and
Assi stan t P r o b a t i o n A d m i n i s t r a t o r . — To be eligible
for appointment as Administrator or Assistant Probation
Administrator, a person must be at least thirty-five years of age,
holder of a master's degree or its equivalent in either criminology,
social work, corrections, penology, psychology, sociology, public
administration, law, police science, police administration, or
related fields, and should have at least five years of supervisory
experience, or be a member of the Philippine Bar with at least
seven years of supervisory experience.
SEC. 22. Regional Office; Regional Probation Officer.
— The Administration shall have regional offices organized in
accordance with the field service area pattern established under
the Integrated Reorganization Plan.
Such regional offices shall be headed by a Regional Proba-
tion Officer who shall be appointed by the President of the

802
 PROBATION LAW

ippines in accordance with the Integrated Reorganization Plan

and upon the recommendation of the Secretary of Justice.
The Regional Probation Officer shall exercise supervision
and control over all probation officers within his jurisdiction and
such duties as may be assigned to him by the Administrator. He
shall have an annual salary of at least Twenty-four thousand
pesos.
He shall, whenever necessary, be assisted by an Assist-
ant Regional Probation Officer who shall also be appointed by
the President of the Philippines, upon recommendation of the
Secretary of Justice, with an annual salary of at least Twenty
thousand pesos.
SEC. 23. Provincial and City Prob ation Officers.
— There shall be at least one probation officer in each province
and city who shall be appointed by the Secretary of Justice upon
recommendation of the Administrator and in accordance with
civil service law and rules.
The Provincial or City Probation Officer shall receive an an-
nual salary of at least Eighteen thousand four hundred pesos.
His duties shall be to:
(a) Investigate all persons referred to him for investiga-
tion by the proper court or the Administrator;
(b) Instruct all probationers under his supervision or
that of the probation aide on the terms and conditions of their
probation;
(c) Keep himself informed of the conduct and condition
of probationers under his charge and use all suitable methods to
bring about an improvement in their conduct and conditions;
(d) Maintain a detailed record of his work and submit
such written reports as may be required by the Administration
or the court having jurisdiction over the probationer under his
supervision;
(e) Prepare a list of qualified residents of the province or city
where he is assigned who are willing to act as probation aides;
(f) Supervise the training of probation aides and oversee
the latter's supervision of probationers;
(g) Exercise supervision and control over all field assist-
ants, probation aides and other personnel; and

803
 PROBATION LAW

(h) Perform such duties as may be assigned by the court

or the Administration.
SEC. 24. Miscellaneous Powers of Provincial and City
Probation Officers. — Provincial or City Probation Officers
shall have the authority within their territorial jurisdiction to
administer oaths and acknowledgments and to take depositions
in connection with their duties and functions under this Decree.
They shall also have, with respect to probationers under their
care, the powers of a police officer.
SEC. 25. Qualifications of Regional, Assistant Re-
gional, Provincial, and City Probation Officers. — No person
shall be appointed Regional or Assistant Regional or Provincial
or City Probation Officer unless he possesses at least a bachelor's
degree with a major in social work, sociology, psychology,
criminol- ogy, penology, corrections, police science, police
administration, or related fields and has at least three years of
experience in work requiring any of the above-mentioned
disciplines, or is a member of the Philippine Bar with at least three
years of supervisory experience.

Whenever practicable, the Provincial or City Probation

Officer shall be appointed from among qualified residents of the
province or city where he will be assigned to work.
SEC. 26. Organization. — Within twelve months from
the approval of this Decree, the Secretary of Justice shall organ-
ize the administrative structure of the Administration and the
other agencies created herein. During said period, he shall also
determine the staffing patterns of the regional, provincial and
city probation offices with the end in view of achieving maxi-
mum efficiency and economy in the operations of the probation
system.
SEC. 27. Field Assistants, Subordinate Personnel.
— Provincial or City Probation Officers shall be assisted by such
field assistants and subordinate personnel as may be necessary
to enable them to carry out their duties effectively.
SEC. 28. Probation Aides. — To assist the Provincial or
City Probation Officers in the supervision of probationers, the
Probation Administrator may appoint citizens of good repute and
probity to act as probation aides.
Probation Aides shall not receive any regular compensation
for services except for reasonable travel allowance. They shall
hold office for such period as may be determined by the
Probation
804
 PROBATION LAW

Administrator. Their and maximum case loads

shall be provided in the rules promulgated pursuant to this
Decree.
SEC. 29. Violation of Confidential Nature of
tion Records. — The penalty of imprisonment ranging from
six months and one day to six years and a fine ranging from six
hundred to six thousand pesos shall be imposed upon any person
who violates Section hereof.
SEC. 30. Appropriations. — There is hereby authorized
the appropriation of the sum of Six Million Five Hundred Thou-
sand Pesos or so much as may be necessary, out of any funds in
the National Treasury not otherwise appropriated, to carry out
the purpose of this Decree. Thereafter, the amount of at least
Ten Million Five Hundred Thousand Pesos or so much as may
be necessary shall be included in the annual appropriations of
the national government.
SEC. 31. Repealing Clause. — All provisions of existing
laws, orders and regulations contrary to or inconsistent with this
Decree are hereby repealed or modified accordingly.
SEC. 32. Separability of Provisions. — If any part, sec-
tion or provision of this Decree shall be held invalid or unconsti-
tutional, no other parts, sections or provisions hereof, shall be
affected thereby.
SEC. 33. Effectivity. - This Decree shall take effect
upon its approval; Provided, however, That the application of
its substantive provisions concerning the grant of probation
shall only take effect on January 3, 1978. (As amended by PD
1257)

Done in the City of Manila, this 24th day of July in the year
of Our Lord, nineteen hundred and seventy-six.

(SGD.) FERDINAND E. MARCOS

President of the Philippines

Presidential Decree No. 1257, which amended Sections 4, 7,

15 and 33 of P.D. No. 968, took effect on December 1, 1977.
76, which amended Section 9 of P.D. No. 968, took
effect on June 13, 1980. P.D. No. 1990 which amended 4 and 9
of P.D. No. 968, took effect on October 5, 1985.

805
 PROBATION LAW

Probation, defined.
Probation is a disposition under which a defendant, after convic-
tion and sentence, is released subject to conditions imposed by the
court and to the supervision of a probation

Probation may be granted even if the sentence imposed a

fine only, but with subsidiary imprisonment.
Probation may be granted whether the sentence imposes a term
of imprisonment or a fine with subsidiary imprisonment in case of
insolvency.

Upon application by defendant for probation, the court may

suspend the execution of the sentence.
Subject to the provisions of the Decree (No. 968), the court may,
after it shall have convicted and sentenced a defendant and upon
his application within the period for perfecting an appeal, suspend
the execution of said sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem
best.

for filing application for probation; purpose and effect.

What the law requires is that the application for probation must
be filed within the period for perfecting an appeal. The need to file
it within such period was intended to encourage offenders, who are
willing to be reformed and to avail of probation at the
first opportunity. Such provision was never intended to suspend the
period for the perfection of an appeal, and the filing of the application
for probation operates as a waiver of the right to appeal. (Palo vs.
Militante, G.R. No. 76100, April 18, 1990, 184 SCRA 395, 400)

In sharp contrast with Section 4 as amended by P.D. No. 1257,

in its present form, Section 4 establishes a much narrower period
during which an application for probation may be filed with the trial
court: [the trial court] shall have convicted and sentenced a
defendant and — within the period for perfecting an appeal." As if to
provide emphasis, a new proviso was appended to the first paragraph
of Section 4 that expressly prohibits the grant of an application for
probation "if the defendant has perfected an appeal from the judgment
of conviction." It is worthy of note too that Section 4 in its present
form, i.e., as amended by P.D. No. 1990, has dropped the phrase

806
 PROBATION LAW

which said that the filing of an application for probation means "the
automatic withdrawal of a pending (Llamado vs. Court of
Appeals, G.R. No. 848, June 29, 1989, 174 SCRA 566, 574)
Note: The convict is not immediately placed on probation, for
no person shall be placed on probation except upon prior
investigation by the probation officer and a determina-
tion by the court. (Sec. 5)

Where application for probation filed.

An application for probation shall be filed with the trial
court.

Convict who an application for probation cannot appeal.

The filing of the application for probation is a waiver of the right
to appeal.

Inappealability of resolution on application for probation.

An order granting or denying probation is not appealable.

Nature of order granting probation.

An order placing defendant on "probation" is not a "sentence"
but is rather in effect, a suspension of the imposition of sentence.
It is not a final judgment but is rather an "interlocutory judgment"
in the nature of a conditional order placing the convicted defendant
under the supervision of the court for his reformation, to be followed
by a final judgment of discharge, if the conditions of the probation
are complied with, or by a final judgment of sentence if the conditions
are violated. (Baclayon vs. Mutia, No. L-59298, April 30, 1984, 129
SCRA 148, 154)

Probation officer to submit the investigation report not

later than days and the court to resolve the application
for pro- bation not later than fifteen days after receipt of
the report.
The probation officer shall submit to the court the investiga-
tion report on a defendant not later than sixty days from receipt of
the order of said court to conduct the investigation. The court shall
resolve the application for probation not later than fifteen days after
receipt of said report.
807
 PROBATION LAW

Pending submission of report and resolution of the

petition, defendant may be released under his bail filed in
the criminal case.
Pending submission of the investigation report and the resolu-
tion of the petition, the defendant may be allowed on temporary liberty
under his bail filed in the criminal case.
Defendant may be released on recognizance to the custody
of a responsible member of the community, (1) in case where no
bail was filed, or (2) in case where defendant is incapable of filing
a bail.
The member of the community who takes custody of defendant
on recognizance guarantees only the latter's appearance whenever
required by the court.

Criteria for placing an offender on probation.

The court shall consider (1) all information relative to the —
(a) character,
(b) antecedents,
(c) environment,
(d) mental, and
(e) physical
condition of the offender, and (2) available institutional and com-
munity resources.

When probation shall be denied.

Probation shall be denied if the court finds that:
(a) the offender is in need of correctional treatment that can
be provided most effectively by his commitment to an in-
stitution; or
(b) there is an undue risk that during the period of probation,
the offender will commit another crime; or
(c) probation will depreciate the seriousness of the offense
committed.

808
 PROBATION LAW

The grant or denial of an application for probation does not rest

solely on the offender's potentiality to reform but also on the observ-
ance of demands of justice and public interest. These are expressed in
statutes enacted by the lawmaker. vs. People, No. L-76258,
May 23, 1988, 161 SCRA 436, 440, citing Tolentino vs. Alconcel, 121
SCRA 92)

Who are the offenders disqualified from being placed on

probation?
The benefits of the Decree shall not be extended to —
(a) those sentenced to serve a maximum term of imprisonment
of more than six years;
(b) those convicted of subversion or any crime against the
national security or public order;
(c) those who were previously convicted by final judgment of
an offense punished by imprisonment of not less than one
month and one day or a fine of not more than two
hundred pesos;
(d) those who have been once on probation under the provisions
of the Decree; and
(e) those who are already serving sentence at the time the
substantive provisions of the Decree became applicable
pursuant to Section 33 thereof.

Previous offense punished by imprisonment of not less than

1 month and 1 day and/or a fine of not more than
A was previously sentenced for an offense punished by 30 days
imprisonment by a fine of A may be placed on proba-
tion, if convicted of a new offense. But if A was previously sentenced
to 1 month and 1 day imprisonment and/or to pay a fine of
he is disqualified from being placed on probation if convicted of a new
offense.

What are the conditions of probation?

Every probation order issued by the court shall contain condi-
tions requiring the probationer to:

809
 PROBATION LAW

(a) present himself to the probation officer designated to un-

dertake his supervision at such place as may be specified
in the order within 72 hours from receipt of the order;
(b) report to the probation officer at least once a month at such
time and place as specified by said officer.
The court may also require the probationer to do any of those enu-
merated in sub-paragraphs (a) to (k) of Section 10 of the Decree.
The conditions which trial courts may impose on a probationer
may be classified into general or mandatory and special or discretion-
ary. The mandatory conditions, enumerated in Section 10 of the Proba-
tion Law, require that the probationer should (a) present himself to the
probation officer designated to undertake his supervision at such place
as may be specified in the order within 72 hours from receipt of said
order, and (b) report to the probation officer at least once a month at
such time and place as specified by said officer. Special or discretionary
conditions are those additional conditions, listed in the same Section
10 of the Probation Law, which the courts may additionally impose
on the probationer towards his correction and rehabilitation outside
of prison. The enumeration, however, is not inclusive. Probation stat-
utes are liberal in character and enable courts to designate practically
any term it chooses as long as the probationer's constitutional rights
are not jeopardized. There are innumerable conditions which may be
relevant to the rehabilitation of the probationer when viewed in their
specific individual context. It should, however, be borne in mind that
the special or discretionary conditions of probation should be realistic,
purposive and geared to help the probationer develop into a law-abiding
and self-respecting individual. should be interpreted with
flexibility in their application and each case should be judged on its
own merits — on the basis of the problems, needs and capacity of the
probationer. The very liberality of the probation should not be made a
tool by trial courts to stipulate instead unrealistic terms. (Baclayon vs.
Mutia, No. L-59298, April 30, 1984, 129 SCRA 148, 152-153; Salgado
vs. Court of Appeals, G.R. No. Aug. 30, 1990, 189 SCRA 304,
311)

Example of condition that may not be imposed.

The court may not impose as a condition for the grant of proba-
tion that the probationer should refrain from continuing her teaching
profession. (Baclayon vs. Mutia, supra)

810
 PROBATION LAW

Discretion of the court on probation.

Even if a convicted person falls within the classes of those qualified
for probation, the grant of probation is not automatic or ministerial.
Probation is a privilege and its grant rests upon the discretion of the
court. The discretion is exercised primarily for the benefit of society
as a whole and only secondarily for the personal advantage of the ac-
cused. vs. People, No. L-76258, May 436,
443)

Effect of probation on accessory penalties.

Accessory penalties are deemed suspended once probation is
granted. (Baclayon vs. Mutia, supra, at 154)

What are the effects of violation of probation order?

Upon the failure of the probationer to comply with any of the
conditions prescribed in the order, or upon his commission of another
offense, he shall serve the penalty imposed for the offense under which
he was placed on probation.

For how long may a convict be placed on probation?

If the convict is sentenced to a term of imprisonment of
not more than one year, the period of probation shall not
exceed two years.
2. In all other cases, if he is sentenced to more than one year,
said period shall not exceed six years.
3. When the sentence imposes a fine only and the offender
is made to serve subsidiary imprisonment, the period of
probation shall be twice the total number of days of sub-
sidiary imprisonment.

When may a probationer be arrested, and what is the disposi-

tion once he is arrested?
At any time during probation, the court may issue a warrant for
the arrest of a probationer for any serious violation of the conditions
of probation. The probationer, once arrested and detained, shall im-
mediately be brought before the court for a hearing of the violation
charged. The defendant may be admitted to bail pending such hearing.
In such a case, the provisions regarding release on bail of persons

811
 PROBATION LAW

charged with a crime shall be applicable to probationers arrested

under this provision.
In the h eari n g, whic h shall be su m ma r y in nature, the
probationer shall have the right to be informed of the violation
charged and to adduce evidence in his favor. The court shall not be
bound by the technical rules of evidence but may inform itself of all
the facts which are material and relevant to ascertain the veracity of
the charge. The State shall be represented by a prosecuting officer in
any contested hearing. If the violation is established, the court may
revoke or continue his probation and modify the conditions thereof.
If revoked, the court shall order the probationer to serve the sentence
originally imposed. An order revoking the grant of probation or
modifying the terms and conditions thereof shall not be appealable.

Notes:
The violation of the conditions of probation must be serious
to justify the issuance of a warrant of arrest.
2. The defendant may be admitted to bail pending hearing.
3. The hearing is summary in nature, but the probationer
shall have the right to be informed of the violation charged
and to adduce evidence in his favor.
4. Court is not bound by the technical rules of evidence.
5. If the violation is established, the court may revoke or con-
tinue his probation and modify the conditions thereof.
6. If revoked, the court shall order the probationer to serve
the sentence originally imposed.
The order revoking the grant of probation or modifying the
term and conditions thereof is not appealable.

When and how probation is terminated, and what are the ef-
fects of the termination?
After the period of probation and upon consideration of the report
and recommendation of the probation officer, the court may order the
final discharge of the probationer upon finding that he has fulfilled
the terms and conditions of his probation and thereupon the case is
deemed terminated.

812
 PROBATION LAW

The discharge of the probationer shall operate to restore to

him all civil rights lost or suspended as a result of his conviction and
to fully discharge his liability for any fine imposed as to the offense
for which probation was granted.
The e xp i r at i o n of th e p rob ati on period alone does not
automatically terminate probation. Probation is not coterminous with
its period. There must first be issued by the court, an order of final
discharge based on the report and recommendation of the probation
officer. Only from such issuance can the case of the probationer be
deemed terminated. (Bala vs. Martinez, G.R. No. 67301 , Jan. 29,
1990, 181 SCRA 459, 465-466)

Purpose of the Decree establishing a probation system.

The three-fold purpose of the Decree is to —
(a) promote the correction and rehabilitation of an offender
by providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent
offender, which might be less probable if he were to serve
a prison sentence; and
(c) prevent the commission of offenses.

Probation affects only the criminal aspect of the case.

Probation affects only the criminal aspect of the case. The
suspension of the sentence imposed on the accused who is granted
probation has no bearing on his civil liability. The court must hear
the civil aspect. (Budlong vs. Apalisok, No. June 24, 1983,
122 SCRA 935, 942-943, 945)

Penalty on Moros and Non-Christians (Sec.

Administra- tive Code of Mindanao and
106. S e n t e n c e s u p o n Mo ro s an d N o n - C h r i s t i a n s . — In
pronouncing sentence upon a Moro or other non-Christian inhabit-
ants of the Department convicted of crime or misdemeanor, the judge
or justice may ignore any minimum penalty provided by law for the
offense, and may impose such penalty not in excess of the highest pen-
alty provided by law, as, in his opinion, after taking into consideration
all the circumstances of the case, including the state of enlightenment

813
 PENALTY ON MOROS AND NON-CHRISTIANS

of the accused and the degree of moral turpitude which attaches to

the offense among his own people, will best subserve the interest of
justice. The judge or justice may also, in his discretion at any time
before the expiration of the period allowed for appeal, suspend the
execution of any penalty or part thereof so imposed, subject to such
condition as he may prescribe.

The application of Section of the Administrative Code of

Mindanao and is discretionary to the court.
In the imposition of penalty to non-Christian inhabitants, it is
within the discretion of the trial court to apply the special provision
of Section 106 of the Administrative Code of Mindanao and Sulu.
(People vs. Pawin, 85 Phil. 528, 532)
Where the accused-appellant is a Mohammedan, inhabitant
of Mindanao, the penalty to be imposed upon him, regardless of
the attending circumstances, lies in the discretion of the trial court
pursuant to Section 106 of the Administrative Code of Mindanao
and Sulu. Ruling in People vs. Pawin, supra, reiterated. (People vs.
88 Phil. 120, 124)
In the Administrative Code of Mindanao and Sulu, the court is
granted discretion to impose the proper penalty taking into account
the degree of instruction of the Moros without following a fixed rule.
The Igorots are in worse condition than the Moros; the latter are
Mohammedans and the former Pagans; their culture in embryonic
stage is subject to their savage spirit. The lack of instruction among
the Igorots should be considered as a mitigating circumstance. (People
vs. 96 Phil.

He cannot even invoke in his favor what Sec. 106 of the Admin-
istrative Code of Mindanao and Sulu accords to a Moro who commits
a crime and is convicted, for even then, said section gives to the court
ample discretion to determine the penalty to be imposed considering
the circumstances of the case, the degree of his instruction, and the
nature of the crime committed, the court being justified in imposing
the penalty which would best serve the interest of justice. This is
a case where the degree of perversity of the criminal warrants not
mercy but the enforcement of the law to the full extent. (People vs.
Salazar, 105 Phil. 1058, 1065)

814
 Chapter Five
EXECUTION AND SERVICE OF PENALTIES

S e c t i o n One. — G e n e r a l p r o v i s i o n s

Art. 78. When and how a penalty is to be executed. — No p en a l t y

sh all be e x e c u t e d e x c e p t by v i r t u e of a final j u d g m e n t .
A p e n a l t y sh all no t b e e x e c u t e d i n an y o t h e r for m th a n
tha t p r e s c r i b e d b y law , no r wi t h an y o t h e r c i r c u m s t a n c e s o r
i n c i d e n t s th a n t h o s e e x p r e s s l y a u t h o r i z e d t h e r e b y .
I n a d d i t i o n t o th e p r o v i s i o n s o f th e law , th e s p e c i a l regu -
l a ti on s p r e s c r i b e d for th e g o v e r n m e n t o f th e i n s t i t u t i o n s i n
w h i c h th e p e n a l t i e s ar e t o b e su f f e r e d sh al l b e o b s e r v e d wi t h
r e g a r d t o th e c h a r a c t e r o f th e wo r k t o b e p e r f o r m e d , th e ti m
e o f its p e r f o r m a n c e , an d ot h e r i n c i d e n t s c o n n e c t e d t h e r e w i t h
, th e r e l a t i o n s o f th e c o n v i c t s a m o n g t h e m s e l v e s an d o t h e r
p e r s o n s , th e rel i e f w h i c h th e y ma y r e c e i v e , an d th ei r di et.
Th e r e g u l a t i o n s sh all mak e p r o v i s i o n for th e s e p a r a t i o
n o f th e s ex e s i n di ffer en t i n s t i t u t i o n s , o r a t l eas t int o
d i fferen t d e p a r t m e n t s , an d als o for th e c o r r e c t i o n an d refor m
o f th e c on vi ct s .

Only penalty by final judgment can be executed.

Paragraph one of this Article provides that "no penalty shall be
executed except by virtue of a final judgment."
The judgment must be final before it can be executed, because
the accused may still appeal within 15 days from its promulgation.
But if the defendant has expressly waived in writing his right to
appeal, the judgment becomes final immediately. (Rule 120, Sec. 7,
Rules of Court)
If the judgment does not condemn the accused to suffer subsidi-
ary imprisonment in case of insolvency, the accused cannot be required

814
 SUSPENSION OF EXECUTION OF PENALTIES Art. 79
DUE TO INSANITY

to suffer the same in case of inability to pay the fine imposed upon
him. (People vs. 52 O.G. 249)

Art. 79 . Suspension the execution and service of the penalties

in case of insanity. — Wh e n a c o n v i c t shal l b e c o m e i n s a n e or an
i m b e c i l e after final s e n t e n c e ha s b e e n p r o n o u n c e d , th e e x e c u -
tio n o f sai d s e n t e n c e sh al l b e s u s p e n d e d onl y wi t h regar d t
o th e p e r s o n a l p e n a l t y , th e p r o v i s i o n s o f th e s e c o n d p a r a g r a p
h of c i r c u m s t a n c e n u m b e r 1 of A r t i c l e 12 b e i n g o b s e r v e d in th e
corresp on din g cases .
I f a t an y ti m e th e c o n v i c t shal l r e c o v e r hi s r e a s o n , hi s
s e n t e n c e sh al l b e e x e c u t e d , u n l e s s th e p e n a l t y shal l h av e
p r e s c r i b e d i n a c c o r d a n c e w i t h th e p r o v i s i o n s o f thi s Cod e.
Th e r e s p e c t i v e p r o v i s i o n s o f thi s s e c t i o n shal l als o b e
o b s e r v e d i f th e i n s a n i t y o r i m b e c i l i t y o c c u r s w h i l e th e co n v i c
t i s s e r v i n g hi s s e n t e n c e .

Rules regarding execution and service of penalties in case

of insanity.
1. When a convict becomes insane or imbecile after final sen-
tence has been the execution of said sentence
is suspended only as regards the personal penalty.
2. If he recovers his reason, his sentence shall be executed,
unless the penalty has prescribed.
3. Even while serving his sentence, the convict becomes in-
sane or imbecile, the above provisions shall be observed.
4. But the payment of his civil or pecuniary liabilities shall
not be suspended.

Only execution of personal penalty is suspended in case

of insanity; civil liability may be executed even in case of
insan- ity of convict.
After the judgment of conviction has become final, the accused
becomes insane. He has enough property to cover the civil liability.

815
 Art. 80 SUSPENSION OF SENTENCE OF MINORS

Can the offended party ask for the execution of the judgment with
respect to civil liability?
Yes, because while the execution of the sentence is suspended
as regards the personal penalty, the payment of his civil or pecuniary
liability shall not be suspended.

An accused person may become insane:

1. At the time of the commission of the offense;
2. At the time of trial;
3. At the time of final judgment; or
4. While serving sentence.
If he was insane at the time of the commission of the offense, he
is exempt from criminal liability. (Art. 12, par. 1) If he was sane at
the time of the commission of the offense but subsequently becomes
insane during the trial of the case, in such a way that he cannot have
a fair trial or make proper defense even with the help of counsel (U.S.
vs. Guendia, 37 Phil. 337, 345), the court shall suspend proceedings
and order his confinement in a hospital until he recovers his reason.
(Art. 12, par. 1) If his insanity should come after final sentence or
while serving his sentence, the execution thereof shall be suspended
with regard to the personal penalty only.

Art. 80 . Suspension of sentence of minor delinquents. —

eve r a m i n o r o f e i t h e r u n d e r s i x t e e n y e a r s o f ag e a t th e
dat e o f th e c o m m i s s i o n o f a g ra v e o r l es s g r a v e fel on y , i s ac-
c u s e d thereof, th e cou rt , after h e a r i n g th e e v i d e n c e i n th e
p r o p e r p r o c e e d i n g s , i n s t e a d o f p r o n o u n c i n g j u d g m e n t o f con
- v i c t i o n , sh al l s u s p e n d all f u r t h e r p r o c e e d i n g s an d shal l com
- mi t s u c h m i n o r t o th e c u s t o d y o r car e o f a p u b l i c o r p r i v a t e ,
benevolen t o r charitabl e institution , establishe d unde r la
w for th e care , c o r r e c t i o n , o r e d u c a t i o n o f o r p h a n e d ,
h o m e l e s s , d e f e c t i v e , an d d e l i n q u e n t c h i l d r e n , o r t o th e
c u s t o d y o r car e o f an y o th e r r e s p o n s i b l e p e r s o n i n an y
o t h e r p l ac e su b j ec t t o v i s i t a t i o n an d s u p e r v i s i o n b y th e
D i r e c t o r o f P u b l i c Wel- fare o r an y o f hi s a g e n t s o r
r e p r e s e n t a t i v e s , i f t h e r e b e any , o r o t h e r w i s e b y th e
s u p e r i n t e n d e n t o f p u b l i c s c h o o l s o r hi s
816
 SUSPENSION OF SENTENCE OF MINORS Art. 80

r e p r e s e n t a t i v e s , su b j e c t t o su c h c o n d i t i o n s a s ar e p r e s c r i b e
d unti l su c h m i n o r sh all h av e r e a c h e d hi s
major- it y o r for su c h les s p e r i o d a s th e c ou r t ma y d e e m
p r op e r . (As amended by No. 47.)
Th e cou rt, i n c o m m i t t i n g sai d m i n o r a s p r o v i d e d ab ov e ,
shal l tak e int o c o n s i d e r a t i o n th e r e l i g i o n o f su c h mi n or , hi s
p a r e n t s o r n ex t o f kin , i n or d e r t o a vo i d hi s c o m m i t m e n t t
o an y p ri va t e i n s t i t u t i o n no t u n d e r th e c on tr o l an d
s u p e r v i s i o n o f th e r e l i g i ou s sec t o r d e n o m i n a t i o n t o w h i c h
th e y b e l on g .
Th e D i r ec to r o f P u b l i c Welfare o r hi s dul y a u t h o r i z e d
rep- r e s e n t a t i v e s o r a g e n t s , th e s u p e r i n t e n d e n t o f pu bl i c
s c h o o l s o r hi s r e p r e s e n t a t i v e s , o r th e p e r s o n t o w h o s e c u s t o d
y o r care th e mi n o r ha s b ee n c o m m i t t e d , shal l s u b m i t t o th e
cour t ever y four m o n t h s an d a s ofte n a s r e q u i r e d i n s p e c i a l
c a s e s , a writ- te n rep or t o n th e g oo d o r ba d c o n d u c t o f sai d
m i n o r an d th e mora l an d i n t e l l e c t u a l p r o g r e s s m a d e b y him
.
Th e s u s p e n s i o n o f th e p r o c e e d i n g s a g a i n s t a m i n o r ma
y b e e x t e n d e d o r s h o r t e n e d b y th e cou r t o n th e
r e c o m m e n d a t i o n o f th e D i r ec to r o f P u b l i c Welfare o r hi s
a u t h o r i z e d r e p r e s e n t a - ti ve s o r a g e n t s , o r th e s u p e r i n t e n d e n t
o f p u b l i c s c h o o l s o r hi s r e p r e s e n t a t i v e s , a c c o r d i n g a s t o
w h e t h e r th e c o n d u c t o f suc h mi n o r b e e n goo d o r no t an d
w h e t h e r h e ha s c o m p l i e d wit h th e c o n d i t i o n s i m p o s e d u p o n
him , o r not. Th e p r o v i s i o n s o f th e first p a r a g r a p h o f thi s
a rt i c l e sh al l not , h o w e v e r , b e affec ted b y th os e c o n t a i n e d
herein .
I f th e mino r ha s b ee n c o m m i t t e d to th e cu stod y or care of
any of the i n st i t u t i on s m e n t i o n e d in th e first p a ra gr ap h of this
article, wit h th e ap p ro va l of th e Di re ct o r of Pu b l i c Welfare an d
subject to suc h c o n d i t i o n s as this official in ac co rd an ce wit h law
ma y dee m p rop er t o i mp ose , suc h mi n o r ma y b e all owed t o stay
e l s ew h e r e und e r th e care of a re sp on si b l e p erson.
I f the mi n o r ha s b e h a v e d p rop er l y an d ha s c o m p l i e d wit
h th e c o n d i t i on s i m p o s e d u po n hi m d u ri n g hi s c on fi n em en t, i n
a c c o r d a n c e wit h th e p r o v i s i on s of this article, he shall be re-
tu rn e d to the cou rt i n orde r that th e sam e ma y order his
release.

817
 I n cas e th e mi n o r fails t o b e h a v e p rop er l y o r t o comp l y
wit h th e r e g u l a t i o n s o f th e i n s t i t u t i o n t o w h i c h h e ha s
b ee n

818
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
c o m m i t t e d o r wit h th e c o n d i t i o n s i m p o s e d u po n hi m w h e
n he wa s c o m m i t t e d to th e car e of a r e s p o n s i b l e p e r s o n , or in
cas e h e sh ou l d b e foun d i n c o r r i g i b l e o r hi s c o n t i n u e d sta y i n
su c h i n s t i t u t i o n s h o u l d b e i n a d v i s a b l e , h e sh all b e r e t u r n e
d t o th e cour t i n orde r tha t th e sam e ma y r e n d e r th e j u d g m e n
t c o r r e s p o n d i n g t o th e cri m e c o m m i t t e d b y him .
Th e e x p e n s e s for th e m a i n t e n a n c e of a m i n o r d e l i n q u e n t
con fi n e d i n th e i n s t i t u t i o n t o w h i c h h e ha s b e e n c o m m i t t e d ,
shall b e b o rn e total l y o r p a rt i a l l y b y hi s p a r e n t s o r r e l a t i v e
s o r th os e p e r s o n s l i ab l e t o s u p p o r t him , i f th e y ar e abl e t o
d o so, in th e d i s c r e t i o n of th e cou rt: Provided, Tha t in cas e hi s
p a r e n t s o r r e l a t i v e s o r th os e p e r s o n s l i ab l e t o s u p p o r t hi m
h av e no t b e e n o r d e r e d t o pa y sai d e x p e n s e s , th e m u n i c i p a l i t
y i n w h i c h th e offen se wa s c o m m i t t e d shall pa y o n e - thir d o f sai
d e x p e n s e s ; th e p r o v i n c e t o w h i c h th e m u n i c i p a l i t y b e l o n g s
shall pa y o n e - th i rd ; an d th e r e m a i n i n g o n e - t h i r d shal l b e
b o r n e b y th e N a t i o n a l G o v e r n m e n t : Provided, however, Tha t
w h e n e v e r th e S e c r e t a r y o f F i n a n c e ce rt i f i es th a t a
m u n i c i p a l i t y i s no t abl e t o pa y it s s h a r e i n th e e x p e n s e s
a b o v e m e n t i o n e d , su c h sh a r e w h i c h i s no t pai d b y sai d
m u n i c i p a l i t y sh al l b e b o r n e b y th e N a t i o n a l G o v e r n m e n t .
C h a r t e r e d c i t i e s shal l pa y two - th i rd s o f sai d e x p e n s e s ; an d i
n cas e a c h a r t e r e d cit y c a n n o t pa y sai d e x p e n s e s , th e i n t e r n a
l r e v e n u e a l l o t m e n t s w h i c h ma y b e du e t o sai d cit y shal l b e
w i t h h e l d an d a p p l i e d i n s e t t l e m e n t o f sai d i n d e b t e d n e s s i n
a c c o r d a n c e w i t h s e c t i o n five h u n d r e d an d e i g h t y - ei gh t of th e
A d m i n i s t r a t i v e Cod e . (As amended by Com. Act No. 99 and Rep.
Act No. 47)

The provisions of Article of the Revised Penal Code have

been repealed by Chapter Three of P.D. No. 603, as
amended (The Child and Youth Welfare Code), and by the
provisions of Rep. Act No. 9344 (Juvenile Justice and
Welfare Act of 2006).
Child in Conflict with the Law.
Under Sec. 4 of Rep. Act No. 9344, a "Child" is as "a
person under eighteen years" while a "Child In Conflict with the
Law" refers to "a child who is alleged as, accused of, or adjudged as,

819
having committed an offense under Philippine laws."

820
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006

Under P.D. No. 603 , a youthful offender is a minor or

youth, including one who is emancipated in accordance with law, who
is over nine years but under eighteen years of age at the time of the
commission of the (Art. 189,
Rep. Act No. 9344 repealed P.D. No. 603 on the matter although
both cover children who are under 18 years of age.
M i n i m u m Ag e o f C r i m i n a l R e s p o n s i b i l i t y .
A child fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from criminal liability.
However, the child shall be subjected to an intervention program
pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of
age shall likewise be exempt from criminal liability and be subjected
to an intervention program, unless he/she has acted with discern-
ment, in which case, such child shall be subjected to the appropriate
proceedings in accordance with this Act.
The exemption from criminal liability herein established does
not include exemption from civil liability, which shall be enforced in
accordance with existing laws. (Sec. 6, Rep. Act No. 9344)

Intervention Program.
If it has been determined that the child taken into custody is
fifteen years old or below, the authority which will have an initial
contact with the child has the duty to immediately release the child to
the custody of his/her parents or guardian, or in the absence thereof,
the child's nearest relative.
Said authority shall give notice to the local social welfare and
development officer who will determine the appropriate programs
in consultation with the child and to the person having custody over
the child. If the parents, guardians or nearest relatives cannot be
located, or if they refuse to take custody, the child may be released to
any of the following: a duly registered nongovernmental or religious
organization; a barangay official or a member of the Barangay Coun-
cil for the Protection of a local social welfare and
development officer; or, when and where appropriate, the DSWD.
If the child referred to herein has been found by the Local So-
cial Welfare and Development Office to be abandoned, neglected or

821
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
abused by his parents, or in the event that the parents will not com-
ply with the prevention program, the proper petition for involuntary
commitment shall be filed by the or the Local Social Welfare
and Development Office pursuant to Presidential Decree No. 603,
otherwise known as "The Child and Youth Welfare (Sec. 20,
Rep. Act No. 9344)

Diversion Programs for children over 15 and under 18 who

acted with discernment. (Refer to Par. 2, Art.
Automatic suspension of sentence under Rep. Act No. 9344.
Once the child who is under eighteen (18) years of age at the
time of the commission of the offense is found guilty of the offense
charged, the court shall determine and ascertain any civil liability
which may have resulted from the offense committed. However, in-
stead of pronouncing the judgment of conviction, the court shall place
the child in conflict with the law under suspended sentence, without
need of application: Provided, however, That suspension of sentence
shall be applied even if the juvenile is already eighteen (18) years of
age or more at the time of the pronouncement of his/her guilt. (See
Sec. 38, Rep. Act No. 9344)

Compared to P.D. No.

Minimum Age of Criminal Responsibility

Under P.D. No. 603 , a child nine (9) years of age or

under at the time of the commission of the offense, and a
child over nine (9) years and under fifteen (15) years of age
unless he acted with discernment, shall be exempt from
criminal liability (Sec. 189, P.D. No. 603) Under Rep. Act
No. 9344, a child under fifteen (15) years of age, shall be
exempt from criminal liability, regardless of whether or
not he/she acted with discernment.
2) Discernment

If a child over nine (9) years and under fifteen (15)

years of age acted with discernment, the court shall hear
the evidence in the proper proceedings and if it finds the
youthful offender to have committed the acts charged
against him, the court shall determine the imposable

822
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
penalty, including any civil liability chargeable against
However, instead of pronouncing judgment of conviction,
the court, upon application of the youthful offender and it
if finds that the best interest of the public as well as that of
the offender will be served thereby, may suspend all further
proceedings and shall commit such minor to the custody or
care of the DSWD or to any training institution operated
by the government, or duly licensed agencies or any other
responsible person, until he shall have reached twenty-one
years of age or, for a shorter period as the court may deem
proper. (Sec. 189 and 192, P.D. No. 603) Under Rep. Act No.
9344, a child above fifteen (15) years but below eighteen (18)
years of age who acted with discernment shall be subjected
to the appropriate proceedings in accordance with the Act.
3) Suspension of Sentence
Under P.D. No. 603 , there is no automatic suspension
of sentence. The youthful offender should apply for a
suspended sentence and it is discretionary on the court
to approve the application. The order of the court denying
an application for suspension of sentence shall not be
appealable. (Sec. 193, P.D. No. 603) Under Rep. Act No.
9344, suspension of sentence is automatic.

COURT PROCEEDINGS.
Bail.
For purpose of recommending the amount of bail, the privileged
mitigating circumstance of minority shall be considered. (Sec. 34, Rep.
Act No. 9344)

Release on Recognizance.
Where a child is detained, the court shall order:
(a) the release of the minor on recognizance to his/her parents
and other suitable persons;
(b) the release of the child in conflict with the law on bail; or
(c) the transfer of the minor to a youth detention home/youth
rehabilitation center.

823
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
The court shall not order the detention of a child in a jail pend-
ing trial or hearing of his/her case. (Sec. 35, Rep. Act No. 9344)

Detention of the Child Pending Trial.

Children detained pending trial may be released on ball or
recognizance. In all other cases and whenever possible, detention
pending trial may be replaced by alternative measures, such as close
supervision, intensive care or placement with a family or in an edu-
cation setting or home. Institutionalization or detention of the child
pending trial shall be used only as a measure of last resort and for
the shortest possible period of time.
Whenever detention is necessary, a child will always be detained
in youth detention homes established by local governments, pursu-
ant to Section 8 of the Family Courts Act, in the city or municipality
where the child resides.
In the absence of a youth detention home, the child in conflict
with the law may be committed to the care of the DSWD or a local
rehabilitation center recognized by the government in the province,
city or municipality within the jurisdiction of the court. The center
or agency concerned shall be responsible for the child's appearance
in court whenever required. (Sec. 36, Rep. Act No. 9344)

Diversion Measures.
Where the maximum penalty imposed by law for the offense
with which the child in conflict with the law is charged is imprison-
ment of not more than twelve (12) years, regardless of the fine or
fine alone regardless of the amount, and before arraignment of the
child in conflict with the law, the court shall determine whether or
not diversion is appropriate. (Sec. 37, Rep. Act No. 9344)

Discharge of the Child in Conflict with the Law.

Upon the recommendation of the social worker who has custody
of the child, the court shall dismiss the case against the child whose
sentence has been suspended and against whom disposition measures
have been issued, and shall order the final discharge of the child if
it finds that the objective of the disposition measures have been ful-
filled.

824
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
The discharge of the child in conflict with the law shall not af-
fect the civil liability resulting from the commission of the offense,
which shall be enforced in accordance with law. (Sec. 39, Rep. Act
No. 9344)

Return of the Child in Conflict with the Law to Court.

If the court finds that the objective of the disposition measures
imposed upon the child in conflict with the law have not been fulfilled,
or if the child in conflict with the law has willfully failed to comply
with the conditions of his/her disposition or rehabilitation program,
the child in conflict with the law shall be brought before the court for
execution of judgment.
If said child in conflict with the law has reached eighteen (18)
years of age while under suspended sentence, the court shall deter-
mine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for
a certain specified period or until the child reaches the maximum age
of twenty-one (21) years. (Sec. 40, Rep. Act No. 9344)

Credit in Service of Sentence.

The child in conflict with the law shall be credited in the service
of his/her sentence with the full time spent in actual commitment and
detention under this Act. (Sec. 41 , Rep. Act No. 9344)

Probation as an Alternative to Imprisonment.

The court may, after it shall have convicted and sentenced a
child in conflict with the law, and upon application at any time, place
the child, or probation in lieu of service of his/her sentence taking
into account the best interest of the child. For this purpose, Section
4 of Presidential Decree No. 968, otherwise known as the "Probation
Law of 1976," is hereby amended accordingly. (Sec. 42, Rep. Act No.
9344)

REHABILITATION AND REINTEGRATION.

Objective of Rehabilitation and Reintegration.
The objective of rehabilitation and reintegration of children
in conflict with the law is to provide them with interventions, ap-

825
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
and strategies that will enable them to improve their social
functioning with the end goal of reintegration to their families and
as productive members of their communities. (Sec. 44, Rep. Act No.
9344)

Court Order Required.

No child shall be received in any rehabilitation or training facil-
ity without a valid order issued by the court after a hearing for the
purpose. The details of this order shall be immediately entered in a
register exclusively for children in conflict with the law. No child shall
be admitted in any facility where there is no such register. (Sec. 45,
Rep. Act No. 9344)

Separate Facilities from Adults.

In all rehabilitation or training facilities, it shall be mandatory
that children shall be separated from adults unless they are mem-
bers of the same family. Under no other circumstance shall a child in
conflict with the law be placed in the same confinement as adults.
The rehabilitation, training or confinement area of children in
conflict with the law shall provide a home environment where children
in conflict with the law can be provided with quality counseling and
treatment. (Sec. 46, Rep. Act No. 9344)

Female Children.
Female children in conflict with the law placed in an institu-
tion shall be given special attention as to their personal needs and
problems. They shall be handled by female doctors, correction officers
and social workers, and shall be accommodated separately from male
children in conflict with the law. (Sec. 47, Rep. Act No. 9344)

Care and Maintenance of the Child in Conflict with the Law.

The expenses for the care and maintenance of a child in conflict
with the law under institutional care shall be borne by his/her parents
or those persons liable to support him/her: Provided, That in case
his/her parents or those persons liable to support him/her cannot pay
all or part of said expenses, the municipality where the offense was
committed shall pay one-third (1/3) of said expenses or part thereof;
the province to which the municipality belongs shall pay one-third

826
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
and the remaining one-third shall be borne by the national
government. Chartered cities shall pay two-thirds (2/3) of said ex-
penses; and in case a chartered city cannot pay said expenses, part
of the internal revenue allotments applicable to the unpaid portion
shall be withheld and applied to the settlement of said obligations:
Provided, further, That in the event that the child in conflict with
the law is not a resident of the municipality/city where the offense
was committed, the court, upon its determination, may require the
city/municipality where the child in conflict with the law resides to
shoulder the cost.

Confinement of Convicted Children in Agricultural Camps

and other Training Facilities.
A child in conflict with the law may, after conviction and upon
order of the court, be made to serve his/her sentence, in lieu of confine-
ment in a regular penal institution, in an agricultural camp and other
training facilities that may be established, maintained, supervised
and controlled by the Bureau of Corrections, in coordination with the
Department of Social Welfare and Development. (Sec. 51 , Rep. Act
No. 9344)

Rehabilitation of Children in Conflict with the Law.

Children in conflict with the law, whose sentences are suspended
may, upon order of the court, undergo any or a combination of dispo-
sition measures best suited to the rehabilitation and welfare of the
child as provided in the Supreme Court Rule on Juveniles in Conflict
with the Law.
If the community-based rehabilitation is availed of by a child in
conflict with the law, he/she shall be released to parents, guardians,
relatives or any other responsible person in the community. Under
the supervision and guidance of the local social welfare and develop-
ment officer, and in coordination with his/her parents/guardian, the
child in conflict with the law shall participate in community-based
programs, x x x
In accordance therewith, the family of the child in conflict with
the law shall endeavor to actively participate in the community-based
rehabilitation.

827
 YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
Based on the progress of the youth in the community, a final
report will be forwarded by the local social welfare and development
officer to the court for final disposition of the case.
If the community-based programs are provided as diversion
measures under Chapter II, Title V, the programs enumerated above
shall be made available to the child in conflict with the law. (Sec. 52,
Rep. Act No. 9344)

Youth Rehabilitation Center.

The youth rehabilitation center shall provide 24-hour group
care, treatment and rehabilitation services under the guidance of
a trained staff where residents are cared for under a structured
therapeutic environment with the end view of reintegrating them in
their families and communities as socially functioning individuals. A
quarterly report shall be submitted by the center to the proper court
on the progress of the children in conflict with the law. Based on the
progress of the youth in the center, a final report will be forwarded to
the court for final disposition of the case. The DSWD shall establish
youth rehabilitation centers in each region of the country. (Sec. 53 ,
Rep. Act No. 9344)

Civil Liability of Youthful Offenders.

The civil liability for acts committed by a youthful offender
shall devolve upon the offender's father and, in case of his death or
incapacity, upon the mother, or in case of her death or incapacity,
upon the guardian. Civil liability may be voluntarily assumed
by a relative or family friend of the youthful offender. (Art. 201 , P.D.
No. 603)

Liability of Parents or Guardian or Any Person in the Com-

mission of Delinquent Acts by Their Children or Wards.
A person whether the parent or guardian of the child or not,
who knowingly or willfully,

(1) Aids, causes, abets or connives with the commission by a

child of a delinquency, or
(2) Does any act producing, promoting, or contributing to a
child's being or becoming a juvenile delinquent, shall be

828
 HOW DEATH PENALTY IS EXECUTED Art. 81

punished by a fine not exceeding five hundred pesos or to

imprisonment for a period not exceeding two or both
such fine and imprisonment, at the discretion of the court.
(Art. 204, P.D. No. 603)

Confidentiality of Records and Proceedings

All records and proceedings involving children in conflict with
the law from initial contact until final disposition of the case shall be
considered privileged and confidential. The public shall be excluded
during the proceedings and the records shall not be disclosed directly
or indirectly to anyone by any of the parties or the participants in the
proceedings for any purpose whatsoever, except to determine if the
child in conflict with the law may have his/her sentence suspended
or if he/she may be granted probation under the Probation Law, or
to enforce the civil liability imposed in the criminal action.
The component authorities shall undertake all measures to protect
this confidentiality of proceedings, including non-disclosure of records to
the media, maintaining a separate police blotter for cases involving chil-
dren in conflict with the law and adopting a system of coding to conceal
material information which will lead to the child's identity. Records of a
child in conflict with the law shall not be used in subsequent proceedings
for cases involving the same offender as an except when beneficial
for the offender and upon his/her written consent.

A person who has in conflict with the law as a child shall not be
held under any provision of law, to be guilty of perjury or of concealment
or misrepresentation by reason of his/her failure to acknowledge the
case or recite any fact related thereto in response to any inquiry made
to him/her for any purpose. (Sec. 43, Rep. Act No. 9344)

P.D. No. 1179, amending P.D. No. 603 by providing that Article
192 shall not apply to those convicted of an offense punishable by
death or life imprisonment perpetua) took effect in 1977,
after the decision of the Court of First Instance.

S e ct i o n Two . — E x e c u t i o n of p ri n ci p a l p en a l t i e s

Art. 81 . When and how the death penalty is to be executed.

— Th e d e at h s e n t e n c e shall be e x e c u t e d wit h p r e f e r e n c e to

829
 Art. 81 HOW DEATH PENALTY IS EXECUTED

an y ot h e r p e n a l t y an d shal l c o n s i s t i n p u t t i n g th e p e r s o n
u n d e r s e n t e n c e t o d ea t h b y l eth a l i n j ec ti on . Th e d ea t h sen-
ten c e shall b e e x e c u t e d u n d e r th e a u t h o r i t y o f th e D i r e c t o r o
f th e B u r e a u o f C o r r e c t i o n s , e n d e a v o r i n g s o far a s p o s s i b l e t
o m i t i g a t e th e su ff er i n gs o f th e p e r s o n u n d e r s e n t e n c e d u r i n
g th e l eth al i n je ct i o n a s wel l a s d u r i n g th e p r o c e e d i n g s
prior t o th e e x e c u t i o n .
Th e D i r e c t o r o f th e B u r e a u o f C o r r e c t i o n s sh al l tak e
step s t o e n s u r e tha t th e l eth a l i n j e c t i o n t o b e a d m i n i s t e r e d i
s sufficient t o c a u s e th e i n s t a n t a n e o u s d e a t h o f th e c o n v i c t .
P u r s u a n t t o this, all p e r s o n n e l i n v o l v e d i n th e ad mi n i stra-
tio n o f l eth a l shal l b e t r a i n e d p ri o r t o th e p erform -
anc e o f su c h task.
Th e a u t h o r i z e d p h y s i c i a n o f th e B u r e a u o f C o r r e c t i o n s ,
after t h o r o u g h e x a m i n a t i o n , shall officially mak e a p r o n o u n c e -
men t o f th e c o n v i c t ' s d e a t h an d shal l certi fy t h e r e t o i n th e
r e c o r d s o f th e B u r e a u o f C o r r e c t i o n s .
Th e d e a t h s e n t e n c e shal l b e c a r r i e d ou t no t e a r l i e r th a
n on e (1) yea r no r late r th a n e i g h t e e n m o n t h s after th e judg
- men t ha s b e c o m e final an d e x e c u t o r y w i t h o u t p r e j u d i c e t o th
e e x e r c i s e b y th e P r e s i d e n t o f hi s e x e c u t i v e c l e m e n c y
p o w e r s at all t i m es . (As amended by Republic Act No. 7659 and
Republic No. 8177)

Rep. Act No. 9346 expressly repealed Rep. Act No. which
prescribed death by lethal injection.
Section 1 of Rep. Act No. 9346 provides as follows:
"SECTION The imposition of the penalty of death is
hereby prohibited. Accordingly, Republic Act No. Eight Thousand
One Hundred Seventy-Seven (R.A. No. 8177), otherwise known
as the Act Designating Death by Lethal Injection, is hereby
repealed. Republic Act No. Seven Thousand Six Hundred Fifty-
Nine (R.A. No. 7659), otherwise known as the Death Penalty
Law, and all other laws, executive orders and decrees, insofar as
they impose the death penalty are hereby repealed or amended
accordingly."

830
 HOW DEATH PENALTY IS EXECUTED Art. 82

In view of the enactment of Rep. Act No. 9346, the death

penalty may not be imposed. Thus, Arts. 81 to of the
Revised Penal Code have no application.
Death sentence shall be executed with preference to any
other penalty.
According to Art. 81 , the death sentence shall be executed with
preference to any other penalty. This is in accordance with Art. 70
providing for successive service of sentences. Death penalty is No. 1
in the order of the severity of the penalties listed there.

Death sentence is executed by lethal injection.

Under Republic Act No. which was approved on March 20,
1996, the death sentence shall be executed by means of lethal injec-
tion. Prior to the enactment of R.A. No. 8177, the death sentence was
executed by electrocution.

When death sentence shall be carried out.

The death sentence shall be carried out not earlier than 1 year
nor later than 18 months after the judgment becomes final and
executory, without prejudice to the exercise by the President of his
executive clemency powers.

Art. 82 . Notification and execution of the sentence and assistance

to the culprit. — Th e cour t sh all d e s i g n a t e a w o r k i n g da y for th
e e x e c u t i o n , bu t no t th e hou r thereof; an d suc h d e s i g n a t i o n
shall not be c o m m u n i c a t e d to th e offend er b efore su n r i s e of said
an d th e e x e c u t i o n shall no t tak e plac e until after th e
ex p i ra ti on of at least eigh t h ou r s f o l l o w i n g th e noti fi cati on ,
bu t b efore sunset. Du ri n g th e i n te rv a l b e t w e e n th e
n ot i f i c at i o n an d the e x e c u t i o n , th e cu l p ri t shall, i n sofar a s
p os si b l e, b e f u r n i sh ed suc h a s si s t a n c e a s h e ma y re q u es t i n
orde r t o b e a t t e n d e d i n hi s last m o m e n t s by p ri est s or
m i n i s t e r s of th e rel i gi on he pro- fesses an d to con su l t l a w y e r s ,
as wel l as in orde r to mak e a will an d confer wit h m e m b e r s of
hi s family or p e rs o n in ch arg e of th e m a n a g e m e n t of hi s
b u s i n e s s , of th e a d m i n i s t r a t i o n of his p rop erty, or of th e car e
of hi s d e s c e n d a n t s .

831
 Art. 83 SUSPENSION OF DEATH SENTENCE

A convict sentenced to death may make a will.

Such convict shall have the right to consult a lawyer and to make
a will for the disposition of his property.

May a convict sentenced to death dispose of his property

by an act or conveyance inter
According to Art. 40, one of the accessory penalties of death
is civil interdiction. According to Art. 34, civil interdiction shall
deprive the offender of the right to dispose of his property by any act
or conveyance inter vivos. But Art. 40 specifically provides that civil
interdiction is its accessory penalty only when the death penalty is
not executed by reason of commutation or pardon.

Problem:
A had been sentenced to death which was affirmed by the
Supreme Court. After he was notified of the date of execution, A
asked for his friend B and by means of a deed of donation inter vivos,
transferred all his property to him who accepted the donation. If A
had no forced heirs, is the transfer valid?
It seems that the transfer is valid, because if A was put to death
subsequently, he was not suffering civil interdiction at the time he
executed the deed of donation inter
Complication may arise if A was not executed by reason of com-
mutation or pardon, for in that case, he would suffer civil interdiction.
A question may be asked whether the deed of donation inter vivos
could still be considered valid.

Art. 83 . Suspension the execution of the death sentence. — Th e

d ea t h s e n t e n c e sh al l no t b e i n fl i ct e d u p o n a w o m a n w i t h i
n on e (1) yea r after no r u p o n an y p e r s o n ove r s e v e n t
y ye ar s o f age . I n thi s last case , th e d e a t h s e n t e n c e shal l b e
com - m u t e d to th e p e n a l t y of reclusion perpetua w i t h th e a c c e s s o r
y p e n a l t i e s p r o v i d e d i n Arti cl e 40 .

I n all c a s e s w h e r e th e d e a t h s e n t e n c e ha s b e c o m e final,
th e r e c o r d s o f th e cas e shal l b e f o r w a r d e d i m m e d i a t e l y b
y th e S u p r e m e Cour t t o th e Office o f th e P r e s i d e n t for
possibl e
832
 SUSPENSION OF DEATH SENTENCE Art. 83

e x e r c i s e of th e p a r d o n i n g p o w e r . (As Amended by Republic Act

No. 7659)

Death sentence shall be suspended when the accused is a —

(1) Woman, while pregnant;
(2) Woman, within one year after delivery;
(3) Person over 70 years of age.
The suspension of the execution of the death sentence
as regards a person over 70 years old is necessary to give
the President time to act, because only the President can
commute the sentence.
The accused was fifty-six years old when he testified
in 1962. An agent of the National Bureau of Investigation
reported that in 1972, he was already seventy years old.
The death penalty cannot be imposed upon any person over
seventy years of age. It should be commuted to
perpetua with the accessory penalties provided in Article
40. (People vs. Yu, No. L-29667, Nov. 29, 1977, 80 SCRA

The appellant was found guilty of the complex crime

of murder with frustrated murder with the aggravating
circumstances of evident premeditation, craft and dwelling
and was sentenced to death. However, since he was already
more than 70 years old, the penalty perpetua
was imposed. (People vs. Miraflores, Nos. July
30, 1982, SCRA 570, 593-594; People vs. Del Mundo,
No. June 29, 1982, 114 SCRA 719, 724)

(4) Convict who becomes insane after final sentence of death

has been pronounced. (See Art. 79)
But when he recovers his reason and before the penalty
has prescribed, he may be put to death.

Distinguish Art. 83 from Art. 47.

Art. 47 provides for cases in which death penalty is not to be
imposed. They are:

833
Art. 83 SUSPENSION OF DEATH SENTENCE

When the guilty person is more than 70 years of age;

2. When upon appeal or automatic review of the case by the
Supreme Court, the required majority vote is not obtained
for imposing the death penalty; and
When the convict is a minor under years of

Note: This No. 3 may be added in view of Art. 68.

On the other hand, Art. 83 provides for suspension only of the

execution of death sentence.

Regional Trial Court (formerly CFI) can suspend execution

of death sentence.
The Regional Trial Court which imposes death penalty has the
power to suspend temporarily the execution of the sentence, after the
judgment has become final, and after the date has been fixed for ex-
ecution, upon petition on behalf of the prisoner, based upon grounds
arising after judgment has become final, the adjudication of which
does not challenge the validity of the judgment or involve a review
or reconsideration of the proceedings.
Among such grounds are the alleged (1) insanity or pregnancy of
the convict, the alleged of the prisoner with the person
actually convicted and sentenced, (3) the alleged lack of a suitable
opportunity to be heard on an application for executive clemency, and
the like. (Director of Prisons vs. Judge of First Instance of Cavite, 29
Phil. 265, 271-274)

But the court cannot grant indefinite, permanent or conditional

suspension of the execution of sentences pronounced in criminal
cases.

Execution of death sentence after delivery of pregnant woman.

Under the old Code, the death sentence could be executed only
after the lapse of 40 days from delivery.
Under R.A. No. 7659, the execution of the death sentence upon
a pregnant woman will be carried out only one (1) year after her
delivery.

834
 PLACE OF EXECUTION Arts. 84-85
CORPSE OF PERSON EXECUTED

Records to be forwarded to the of the President,

when the death sentence has become final.
In all cases where the death sentence has become final, the
records of the case shall be forwarded to the Office of the President
for possible exercise of the pardoning power. (Art. 83, par. 2)

Art. 84 . Place of execution and persons who may witness the

same. — Th e e x e c u t i o n sh al l tak e p l a c e in th e p e n i t e n t i a r
y o r Bi l ib i d i n a s p a c e c l o s e d t o th e p u b l i c v i e w an d shal l b e
witnesse d b y th e p r i e s t s a s s i s t i n g th e o f f e n d e r an d b
y hi s l a w y e r s an d b y hi s r e l a t i v e s , no t e x c e e d i n g six, i f h e s o
r e q u e s t s , b y th e p h y s i c i a n an d th e n e c e s s a r y p e r s o n n e l o f th
e p en a l e s t a b l i s h m e n t , an d b y s u c h p e r s o n s a s th e D i r e c t o r o
f P r i s o n s ma y a u t h o r i z e .

Place of execution.
The execution shall take place in the penitentiary or Bilibid in
a space closed to the public view.

Persons who may witness execution.

1) priests assisting the offender,
2) offender's lawyers,
3) offender's relatives, not exceeding six, if so requested,
4) physician, and
5) necessary personnel of penal establishment.
A person below 18 years of age may not be allowed to witness
an execution. (Sec. 23, par. 2, Amended Rules and Regulations to
Implement Rep. Act No. 8177)

Art. 85. Provisions relative to the corpse of the person executed

and its burial. — U n l e s s c l a i m e d by hi s family, th e corp s e of
th e culprit shall, upo n th e c o m p l e t i o n of th e legal p r o c e e d i n g s

835
 Arts 86-87 EXECUTION AND SERVICE OF OTHER PENALTIES
DESTIERRO

s u b s e q u e n t t o th e e x e c u t i o n , b e t u r n e d ove r t o th e i n s t i t u t
e o f l e a r n i n g o r s c i e n t i f i c r e s e a r c h firs t a p p l y i n g for it,
for th e p u r p o s e o f s tu d y an d i n v e s t i g a t i o n , p r o v i d e d tha t su c
h i n st i t u t e shall tak e c h a r g e o f th e d e c e n t buria l o f th e
r e m a i n s . O t h e r w i s e , th e D i r e c t o r o f P r i s o n s sh al l o rd e r
th e b u r i a l o f th e bod y o f th e cu lp ri t a t g o v e r n m e n t e x p e n s e ,
g r a n t i n g p e r m i s s i o n t o b e p r e s e n t t h e r e a t t o th e m e m b e r s o f
th e family o f th e cu l p ri t an d th e fr i e n d s o f th e l atter. I n n
o cas e shall th e buria l o f th e bod y o f a p e r s o n s e n t e n c e d t o
d e a t h b e hel d wi t h p om p .

The "burial of the body of a person sentenced to death"

should not "be held with pomp."
The last sentence of Art. 85 prohibits the burying of the corpse
of a person sentenced to death with pomp. This is penalized under
Art. 153. The purpose of the law is to prevent anyone from making a
hero out of a criminal.

Art. 86 . Reclusidn perpetua, temporal, prisidn mayor,

prisidn correccional and arresto mayor. — Th e p e n a l t i e s of reclusidn
perpetua, reclusidn temporal, prisidn mayor, prisidn correccional an d
arresto mayor, sh al l b e e x e c u t e d an d s e r v e d i n th e p l a c e s an d
p en a l e s t a b l i s h m e n t s p r o v i d e d b y th e A d m i n i s t r a t i v e Cod
e i n forc e o r w h i c h ma y b e p r o v i d e d b y la w i n th e fu tu re .

Art. 87. Destierro. — An y p e r s o n s e n t e n c e d to destierro shal l

no t b e p e r m i t t e d t o e n t e r th e p l a c e o r p l a c e s d e s i g n a t e d i
n th e s e n t e n c e , no r w i t h i n th e r a d i u s t h e r e i n sp e c i f i e d , w h i c h
shal l b e no t mo r e th a n 250 an d no t les s t h a n 2 5 k i l o m e t e r s
from th e p l a c e d e s i g n a t e d .

Illustration of destierro imposed as a penalty.

A was sentenced to the penalty of destierro, according to which
he should not enter the place within the radius of 25 kilometers from

836
 SERVICE OF ARRESTO MENOR Art. 88

the City Hall of Manila, for a period of two years, four months and
one day.
In this case, A was not completely deprived of his liberty, as
he could go freely to whatever place except within the radius of 25
kilometers from the City Hall of Manila.

Destierro is imposed:
When death or serious physical injuries is caused or are
inflicted under exceptional circumstances. (Art. 247)
2. When a person fails to give bond for good behavior. (Art.
284)
As a penalty for the concubine in the crime of concubinage.
(Art. 334)
4. When after lowering the penalty by degrees, destierro is
the proper penalty.

Entering the prohibition area is evasion of the service of

the sentence.
Facts: For the crime committed, the accused was sentenced to
the penalty of destierro, according to which he should not enter while
serving the sentence within the radius of 25 kilometers of the City
Hall of Manila. (Art. 87). In that penalty of destierro, the convict could
freely go to whatever place, except within the radius of 25 kilometers
from the City Hall of Manila. But the accused entered Manila while
serving the sentence of destierro.

Held: There is evasion of the service of the sentence of destierro.

(People vs. De Jesus, 80 Phil. 748, 750)

Art. 88 . Arresto menor. — Th e p e n a l t y of arresto menor

shall b e se rv e d i n th e m u n i c i p a l jail, o r i n th e h ou s e o f th e
d e f e n d an t h i m se l f u n d e r th e s u r v e i l l a n c e o f a n officer o f th e
law , w h e n th e cour t s o p r o v i d e s i n it s d e c i s i o n , t ak i n g int o
c o n s i d e r a t i o n th e h e a l t h o f th e of fe n d e r an d oth e r re as on s
w h i c h ma y see m s a t i s f a c t o r y t o it.

837
Art. 88 SERVICE ARRESTO MENOR

Penalty that may be served in the house of defendant.

This article provides that the penalty of arresto menor may be
served in the house of the defendant.
But it is required as a condition that it should be under the
surveillance of an officer of the law.

"When the court so provides in its decision."

Note the use of the clause in the law.
Hence, unless the court makes a statement in its decision that
the accused can serve the sentence in his house, the accused cannot
be permitted to do so by the jailer.

The grounds are the health of the offender and other

reasons satisfactory to the court.
It is not a satisfactory, plausible reason that the accused is a
woman of 50 years, respectable member of the community and that
her means of subsistence and that of her husband are a retail store.
(People vs. Torrano, C.A., 40 O.G., 12th 18)
But where the accused was sentenced to 30 days imprisonment
under Act 3992 and he was suffering from tuberculosis, requiring
outside treatment, he was allowed to serve his sentence in his house.
(People vs. C.A., 40 11th 280)
 Title Four
EXTINCTION OF CRIMINAL LIABILITY
Chapter One
TOTAL EXTINCTION OF CRIMINAL
LIABILITY

Art. 89 . How criminal liability is totally extinguished. —

C ri mi n a l l i ab i l i ty i s t o t a l l y e x t i n g u i s h e d :
1 . B y th e d e a t h o f th e c o n v i c t , a s t o th e p e r s o n a l
p e n a l t i e s ; an d a s t o p e c u n i a r y p e n a l t i e s , l i ab i l i t y t h e r e f o
r i s e x t i n g u i s h e d onl y w h e n th e d e a t h o f th e o f f e n d e r o c c u r s
b efor e final j u d g m e n t ;
2. B y s e r v i c e o f th e s e n t e n c e ;
3 . B y a m n e s t y , w h i c h c o m p l e t e l y e x t i n g u i s h e s th e
p e n a l t y an d all it s effe cts;
4. B y absolut e pardon ;
5. B y p r e s c r i p t i o n o f th e cr i m e ;
6. By p r e s c r i p t i o n of th e p en a l t y ;
7 . B y th e m a r r i a g e o f th e o f f e n d e d w o m a n , a s p r o v i d e
d in Arti cl e 344 of thi s Code .

Extinction of criminal liability does not automatically

extin- guish the civil liability.
Extinction of criminal liability does not necessarily mean that
the civil liability is also extinguished. (Petralba vs. Sandiganbayan,
G.R. No. 81337, Aug. 16, 1991, 200 SGRA 644, 649)

Causes of extinction of criminal liability distinguished

from causes of justification or exemption.
Causes of extinction of criminal liability arise after the commis-
sion of the offense; while the causes of justification or exemption from

837
Art. 89 TOTAL EXTINCTION OF CRIMINAL LIABILITY

criminal liability arise from circumstances existing either before the

commission of the crime or at the moment of its commission.

That criminal liability is totally extinguished is a ground for

motion to quash.
Under Sec. 3(g) of Rule 117 of the Revised Rules of Criminal
Procedure, one of the grounds for motion to quash is that the criminal
action has been extinguished. The order sustaining a motion to quash
on this ground constitutes a bar to another prosecution for the same
offense. (Sec. 6, Rule 117)

By the death of the convict.

The death of the convict, whether before or after final judgment,
extinguishes criminal liability, because one of the juridical conditions
of penalty is that it is personal.

Civil liability is extinguished only when death occurs before

final judgment.
The death of the convict also extinguishes pecuniary penalties
only when the death of the offender occurs before final judgment.
Hence, if the offender dies after final judgment, the pecuniary
penalties are not extinguished.
Where a person is charged with homicide, for instance, the civil
liability for indemnity is based solely on the finding of guilt. If he is
acquitted because of self-defense, the heirs of the deceased have no
right to indemnity. Should the offender die before final judgment,
their right to indemnity is likewise extinguished as there is no basis
for the civil liability. Civil liability exists only when the accused is
convicted by final judgment.

Criminal and civil liability is extinguished when the offender

dies before final judgment.
When the accused died while the judgment of conviction against
him was pending appeal, his civil and criminal liability was extin-
guished by his death. (People vs. Castillo, C.A., 56 O.G. 4045; People
vs. Alison, No. April 27, 1972, 44 SCRA 523 , 525)
In view of the death of the accused during the pendency of this
case he is relieved of all personal and pecuniary penalties attendant

838
 TOTAL EXTINCTION OF CRIMINAL LIABILITY Art. 89

to his crime, his death occurring before rendition of final judgment.

vs. Jose, No. L-28397, June 17, 1976, 71 SCRA 273,

Definition of "final judgment."

The term "final judgment" employed in the Revised Penal Code
means judgment beyond recall. As long as a judgment has not become
executory, it cannot be truthfully said that defendant is definitely
guilty of the felony charged against him. (People vs. Bayotas, G.R.
No. 152007, September 236 SCRA 239) Section 7, Rule 16 of
the Rules of Court likewise states that a judgment in a criminal case
becomes final after the lapse of the period for perfecting an appeal or
when the sentence has been partially or totally satisfied or served, or
the defendant has expressly waived in writing his right to appeal.

Effect of the death of the accused pending appeal on his

criminal and civil liability.
General rule —
Death of the accused pending appeal of his conviction extin-
guishes his criminal liability as well as the civil liability based solely
on the offense committed.

Exception —
The claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation
other than delict, such as law, contracts, quasi-contracts and quasi-
delicts. (People vs. Bayotas, supra)

Examples:
a) The claim for civil liability based on law may also be made
— in the offense of physical injuries, since Article 33 of the
Civil Code establishes a civil action for damages on account
of physical injuries, entirely separate and distinct from the
criminal action (See vs. Polinar, No. L-24098,
November 18, 1967, 21 SCRA 700);
b) Claim for civil liability based on contract may also be made
— in the offense of estafa when the civil liability springs
neither solely nor originally from the crime itself but from
a civil contract of purchase and sale (as when accused had
swindled the vendees of the property subject matter of the

839
Art. 89 TOTAL EXTINCTION OF CRIMINAL LIABILITY

contract of sale). (See vs. Court of Appeals, No.

L-40336, October 24, 1975, 67 SCRA 394)

Where action for recovery of damages must be filed, when

civil liability survives.
If the private offended party, upon extinction, of the civil liability
ex delicto, desires to recover damages from the same act or omission com-
plained of, he must, subject to Section Rule of the Revised Rules
of Criminal Procedure, file a separate civil action, this time predicated
not on the felony previously charged but on other sources of obligation.
The source of obligation upon which the separate civil action is premised
determines against whom the same shall be enforced. Thus —
a) If the same act or omission complained of also arises from
quasi-delict or may, by provision of law, result in an injury
to person or property (real or personal), the separate civil
action must be filed against the executor or administrator
of the estate of the accused pursuant to Sec. 1, Rule 87 of
the Rules of Court.
b) If the same act or omission complained of also arises from
contract, the separate civil action must be filed against the
estate of the accused, pursuant to Sec. 5, Rule 86 of the
Rules of Court. (People vs. Bayotas, supra)

Right of offended party to separate civil action not lost

by prescription when accused dies pending appeal.
The private offended party need not fear a forfeiture of his right to
file the separate civil action by prescription, in cases where during the
prosecution of the criminal action and prior to its extinction, the private
offended party instituted together therewith the civil action. In such
case, the statute of limitations on the civil liability is deemed interrupted
during the pendency of the criminal case, conformably with provisions
of Article 1155 of the Civil Code. (People vs. Bayotas, supra)

Death of the offended party does not extinguish the criminal

liability of the offender.
The death of the offended party does not extinguish the criminal
liability of the offender, because the offense is committed against the
State. (People vs. Misola, 87 Phil. 830, 833)

840
 TOTAL EXTINCTION OF CRIMINAL LIABILITY Art. 89

By service of sentence.
Crime is a debt incurred by the offender as a consequence of his
wrongful act and the penalty is but the amount of his debt. When
payment is made, the debt is extinguished.
Service of sentence does not exti n gu i sh the civil liability.
(Salgado vs. Court of Appeals, G.R. No. 89606, Aug. 30, 1990, 189
SCRA

By amnesty.
Amnesty,
It is an act of the sovereign power granting oblivion or a general
pardon for a past offense, and is rarely, if ever, exercised in favor of
a single individual, and is usually exerted in behalf of certain classes
of persons, who are subject to trial but have not yet been convicted.
(Brown vs. Walker, 161 U.S. 602)

Amnesty completely extinguishes the penalty and all its effects.

Note the clause in paragraph 3 of Art. 89, which says:
completely extinguishes the penalty and all its

Amnesty may be granted after conviction.

The amnesty proclamation in favor of the Hukbalahaps is
applicable to those already undergoing sentence upon the date of its
promulgation. (Tolentino vs. Catoy, 82 Phil. 300)

Examples of amnesty:
1. Proclamation No. 51 , dated January by President
Roxas, granting amnesty to those who collaborated with
the enemy during World War II. (See 44 O.G. 408)
2. Proclamation No. 76, dated June 21 , 1948, by President
Quirino, ex te n d i n g a mn es t y to the Huk s and PKM
( P a m b a n s an g K ai sah a n ng Magbubukid ), who
committed rebellion, sedition, illegal association, etc. (See
44 O.G. 1794)
3. Proclamation No. 80, dated February by President
Aquino, extending amnesty to those who, in the furtherance
of their political beliefs, may have committed treason,

841
Art. 89 TOTAL EXTINCTION OF CRIMINAL LIABILITY

conspiracy or proposal to commit the crime of treason,

misprision of treason, espionage, rebellion or insurrection,
conspiracy and proposal to commit rebellion or insurrection,
inciting to rebellion or insurrection, sedition, conspiracy to
commit sedition, inciting to sedition, illegal assemblies,
illegal associ ati on s, direct assaul t, indirect assault,
resistance and disobedience to a person in authority or
agents of such person or persons, subversion, and illegal
possession of firearms and explosives.

Civil liability not extinguished by amnesty.

While amnesty wipes out all traces and vestiges of the crime,
it does not extinguish the civil liability of the offender. (U.S. vs.
Madlangbayan, 2 Phil. 426, 428-429)

By absolute pardon.
Pardon, defined.
It is an act of grace proceeding from the power entrusted with
the execution of the laws which exempts the individual on whom it is
bestowed from the punishment the law inflicts for the crime he has
committed.

Kinds of pardon:
(a) Absolute pardon.
(b) Conditional pardon.
A pardon, whether absolute or conditional, is in the nature of a
deed, for the validity of which delivery is an indispensable requisite.
Until accepted, all that may have been done is a matter of intended
favor and may be cancelled. But once accepted by the grantee, the
pardon already delivered cannot be revoked by the authority which
granted it.

Pardon in adultery case.

A was charged with the crime of adultery with a married woman.

The married woman, after conviction of both accused, was pardoned
by the Chief Executive.

Does the pardon of the woman have the effect of extinguishing

the criminal liability of A?

842
 TOTAL EXTINCTION OF CRIMINAL LIABILITY Art. 89

No, because (1) the power to extend executive clemency is

unlimited, and (2) that the exercise of that power lies in the absolute
and uncontrolled discretion ofthe Chief Executive. (U.S. vs.
30 Phil. 85, 87)
But if the one giving the pardon is the offended spouse in
adultery, both offenders must be pardoned by the offended party if
said pardon is to be effective. (People vs. Infante, 57 Phil. 138, 139)

Pardon of murder after evasion of service of sentence.

A was convicted of murder. Subsequently, A evaded the service
of the sentence. A was prosecuted for and convicted of evasion. The
President thereafter pardoned A of the murder.
Held: The pardon refers only to the crime of murder and does
not have the effect of remitting the penalty for evasion of the service
of the sentence committed prior to said pardon. (Alvarez vs. Director
of Prisons, 80 Phil. 43)

Amnesty and pardon distinguished.

Pardon includes any crime and is exercised individually by the
President; amnesty is a blanket pardon to classes of persons or
communities who may be guilty of political offenses.
2. Pardon is exercised whe n the person is already convicted;
amnesty may be exercised even before trial or investigation is
had.
3. Pardon looks forward and rel ieves the offender from the
consequences of an offense of which he has been convicted,
that is, it abolishes or forgives the punishment, and for that
reason it does work the restoration of the rights to hold
public office or the right of suffrage, unless such rights be
expressly restored by the terms On the other
hand, amnesty looks backward and abolishes and puts into
oblivion the offense itself; it so overlooks and obliterates the
offense with which he is charged that the person released by
amnesty stands before the law precisely as though he had
committed no offense. et vs. Fernandez, 82
Phil. 642, 646-647)
Thus -

843
 Art. 89 TOTAL EXTINCTION OF CRIMINAL LIABILITY

(a) Pardon does not alter the fact that the accused is a recidi-
vist, because it produces the extinction only of the personal
effects penalty. (U.S. vs. Sotelo, 28 Phil. 147, 160)
(b) Amnesty makes an ex-convict no longer a recidivist, be-
cause it obliterates the last vestige crime. (U.S. vs.
Francisco, 10 Phil. 185, 187)
4. Both do not extinguish the civil liability of the offender. (Art.
113)
5. Pardon, being a private act of the President, must be pleaded
and proved by the person pardoned; while amnesty being by
Proclamation of the Chief Executive with the concurrence of
Congress, is a public act of which the courts should take judicial
notice. (Barrioquinto, et vs. Fernandez, supra)

By prescription of crime and by prescription of penalty.

By prescription, the State or the People loses the right to pros-
ecute the crime or to demand the service of the penalty imposed.
(Santos vs. Superintendent, 55 Phil. 345)

Definitions.
Prescription ofthe crime is the forfeiture or loss of the right of the
State to prosecute the offender after the lapse of a certain time.
Prescription of the penalty is the loss or forfeiture of the right
of the Government to execute the final sentence after the lapse of a
certain time.

Two conditions necessary in prescription of penalty.

(a) That there be final judgment.
(b) That the period of time prescribed by law for its enforce-
ment has elapsed.

By the marriage of the offended woman.

Marriage of the offender with the offended woman after the
commission of any crimes of rape, seduction, abduction or acts
of as provided in Art. 344 , must be contracted by
the offender in good faith. Hence, marriage contracted only to avoid

844
 PRESCRIPTION OF CRIMES Art. 90

criminal liability is devoid of legal effects. (People vs. Santiago, 51

Phil. 68, 70)

Art. 90 . Prescription of crimes. — C r i m e s p u n i s h a b l e by

d e at h , perpetua or temporal shal l p r e s c r i b e in
t w e n t y y ea rs .
C r i m e s p u n i s h a b l e b y o t h e r a f f l i c t i v e p e n a l t i e s sh al l
p r e s c r i b e i n fifteen y e a r s .
Thos e p u n i s h a b l e by a c o r r e c t i o n a l p en al t y shall p rescri b e
i n te n years ; w i t h th e e x c e p t i o n o f t h o s e p u n i s h a b l e b y arresto
mayor, w h i c h shal l p r e s c r i b e in five y e a r s .
Th e crim e o f libel o r ot h e r si mi l a r of fe n s e s shall p r e s c r i b
e i n on e year .
Th e of fe n s e s o f oral d e f a m a t i o n an d s l a n d e r b y d ee d shall
p r e s c r i b e i n si x m o n t h s .
Ligh t o f f e n s e s p r e s c r i b e i n tw o m o n t h s .
Whe n th e p e n a l t y fi xe d b y la w i s a c o m p o u n d one , th e
h i g h e s t p e n a l t y sh al l b e m a d e th e b a si s o f th e a p p l i c a t i o n o
f th e ru l e s c o n t a i n e d i n th e first, s e c o n d , an d thi r d
p a r a g r a p h s of thi s ar ti cl e . (As amended by Rep. Act No. 4661)

Rep. Act No. 4661 not applicable to cases already filed in

court prior to June
The provision of this amendatory Act (reducing the prescriptive
period crime of libel or other similar offenses, from two years to
one year) shall not apply to cases of libel already filed in court at the
time of approval of this amendatory Act. (Sec. 2, Rep. Act No. 4661,
approved June 18, 1966)

In computing the period of prescription, the day is to

be excluded and the last day included.
Facts: The accused committed slight physical injuries on May
28, 1953. An information was filed on July 27, 1953. This crime, be-

846
Art. 90 PRESCRIPTION OF CRIMES

a light offense, prescribes in two months according to Art. 90.

The Municipal Court sustained the motion to quash and dismissed
the case, holding that the information was filed on the 61st day, not
on the 60th day from May 28, 1953, "the day on which the crime is
discovered by the offended party."
Held: The information should be considered as filed on the 60th
day. In the computation of a period of time within which an act is to
be done, the law in this jurisdiction has always directed that the first
day be excluded and the last included. (See Art. 13, Civil Code.)
A month is computed as the regular 30-day month. The running
of the prescriptive period should commence from the day following
the day on which the crime was committed. (People vs. Del
97 Phil. 67, 70)
But as regards the month of February of a leap year, February
28 and 29 should be counted as separate days in computing periods
of prescription. (Namarco vs. Tuazon, 29 SCRA 70, cited in People
vs. Ramos, No. L-25644, May 9, 1978, 83 SCRA 1, 13)
Thus, where the prescriptive period was supposed to commence
on December the filing of the action on December
was done after the ten-year period had elapsed — since 1960 and
1964 were both leap years, and the case was thus filed two (2) days
too late.

Rule where the last day of the prescriptive period falls on a

Sunday or legal holiday.
Where the last day of the prescriptive period for filing an
information falls on a Sunday or legal holiday, the information can
no longer be filed on the next day as the crime has already prescribed.
vs. No. June SCRA
713)

Prescription of oral defamation and slander by deed.

As to the prescription of oral defamation and slander by deed,
distinction should be made between simple and grave slander. Simple
slander prescribes in two months. Grave slander prescribes in six
months. (People vs. Maceda, 73 Phil. 679, 681)

846
 PRESCRIPTION OF CRIMES Art. 90

Crimes punishable by arresto menor or a fine not

exceeding P200 prescribe in two months.
The lower court ruled that the offense charged was a light felony
under par. 3 of Art. 9 of the Revised Penal Code, which, as provided
in Art. 90, prescribes in two months. The Solicitor General cites Art.
26 of the same Code and contends that inasmuch as the penalty
imposable under Art. 195 Code is arresto menor, or a fine not
exceeding 200 pesos, then a fine pesos, imposable as a single or
as an alternative penalty, may be considered as a correctional penalty
and so under Art. 90, the offense charged prescribes in ten years and
not two months. This Court has already ruled that a violation of Art.
195 of the Revised Penal Code, punishable with arresto menor or a
fine not exceeding is a light felony under Art. 9 of said Code
and prescribes in two months, according to Art. 90, par. 6, of the same
Code. (People vs. Canson, 101 Phil. 537, 538-539, citing People vs. Yu
99 Phil. 725, and People vs. Aquino, 99 Phil. 1059)

Two months in Art. 90, regarding the prescriptive period for light
felonies, means 60 days. (People vs. Del 97 Phil. 67, 71)

Penalty for attempted bribery is destierro, which prescribes

in 10 years, being a correctional penalty.
The period of prescription of the offense of attempted bribery,
penalized with destierro, is 10 according to Article 90, for the
reason that destierro is classified a correctional penalty under Art.
25. vs. 92 Phil. 1042, 1043)

Prescription of crimes punishable by fines.

Fines are also classified as afflictive, correctional, or light pen-
alty. (Art. 26)
The crimes punishable by fines shall prescribe in 15 years, if the
fine is afflictive; or in 10 years, if it is correctional; or in two months,
if the fine is light. The subsidiary penalty for nonpayment fine
should not be considered in determining the period of prescription of
such crimes. (People vs. Basalo, 101 Phil. 57, 61-62)
Note: Since light felony is specifically defined in Art. 9 as an
infraction of the law for the commission of which the
penalty of arresto menor or a fine not exceeding P200,

847
 Art. 90 PRESCRIPTION OF CRIMES

or both, is provided, a fine of P200 provided for a light

felony should not be considered correctional.

When the penalty is a compound one, the highest penalty

is the basis of the application of the rules in Art. 90.
There is no merit in the contention that the crime of perjury,
which is punishable by arresto mayor in its maximum period to prision
correccional in its minimum period, has already prescribed. Where
the penalty fixed by law is a compound one, the highest penalty shall,
according to the last paragraph of Art. 90, be made the basis of the
application of the rules contained therein. The penalty for the crime
of perjury being a compound one, the higher of which is correctional,
said crime prescribes in ten years. (People vs. Cruz, 108 Phil. 255,
259)

When fine is an alternative penalty higher than the other

penalty which is by imprisonment — prescription of the crime
is based on the fine.
Under Art. 319 of the Code, the penalty for the offense is
arresto mayor or a fine double the value of the property involved.
The accused sold 80 cavans of with a value P320 , which he
had mortgaged to the PNB, without the knowledge and consent of
the mortgagee.
Held: The period of prescription applicable is ten years, instead
of five years. True, the offense under Art. 319 insofar as it is penalized
with arresto mayor prescribes in five (5) years, but the fine equivalent
to double the amount of the property involved may also be imposed
as a penalty, and when said imposable penalty is either correctional
or afflictive, it should be made the basis for determining the period
of prescription. (People vs. Basalo, 101 Phil. 57, 61)

The ruling in the Basalo case applies even if the penalty is

arresto mayor and fine.
When the penalty prescribed by the Code is arresto mayor and
fine (Art. 316, par. 2), and the fine is afflictive to
the fine should be the basis application of the rules in Art. 90.
(People vs. G.R. No. Aug. 31 , 1962, 5 SCRA
1048, 1052-1053)

848
 PRESCRIPTION OF CRIMES Art. 90

Prescriptive periods of offenses punished under special laws

and municipal ordinances.
Act No. 3763, amending Act No. 3326, provides:
Offenses punished only by a fine or by imprisonment for
not more than one month, or both, prescribe after 1 year;
2. Offenses punished by imprisonment for more than one
month, but less than two years — after 4 years;
3. Offenses punished by imprisonment for two years or more
but less than six years — after 8 years;
4. Offenses punished by imprisonment for six years or more
— after 12 years;
5. Offenses under Internal Revenue Law — after 5 years;
6. Violations of municipal ordinances — after 2 months;
7. Violations regulations or conditions of certificate of
convenience by the Public Service Commission — after 2
months.
Act No. 3326 is not applicable where the special law provides
for its own prescriptive period. (People vs. Ramos, No. L-25265, May
9, 1978, 83 SCRA 1, 12)

Prescription of violations penalized by special laws and

ordinances — when it begins to run.
Prescription shall begin to run from the day of the commission
violation law, and if the same be not known at the time,
from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment. (Sec. 2, Act No. 3326)

When interrupted.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not constituting jeopardy.
(Sec. 2, Act No. 3326)

Defense of prescription may be raised during the trial or dur-

ing the appeal.
The rule in Section 10, Rule of the Rules of Court (now
Section 9, Rule 117 Revised Rules of Criminal Procedure) that

849
Art. 90 PRESCRIPTION OF CRIMES

if the accused failed to move to quash before pleading, he must be

deemed to have waived all objections, which are grounds of a motion
to quash, cannot apply to the defense of prescription, which under
Art. 89 of the Revised Penal Code extinguishes criminal liability.
(People vs. Castro, 95 Phil. 462, 464-465)
Prescription, although not invoked in the trial, may be invoked
on appeal. (People vs. Balagtas, 105 Phil. 1362-1363

The accused cannot be convicted of an offense lesser

than that charged if the lesser offense had already
prescribed at the time the information was filed.
Where an accused has been found to have committed a lesser
offense includible within the offense charged, he cannot be convicted of
the lesser offense, if it has already been prescribed. To hold otherwise
would be to sanction the circumvention of the law on prescription by
the simple expedient of accusing the defendant graver offense.
(Francisco vs. CA, 122 SCRA 545)

People vs. Rarang

(C.A., 62 O.G. 6458)

Facts: Defendant Dominador Rarang was charged with the crime

of grave slander in an information filed on October for having
allegedly proffered and uttered, on or about July slanderous
words and expressions against complainant Fausto Carlos, Jr., such as
natatakot sa inyo, tulisan." He filed a motion to quash
the information on the ground that the crime had prescribed because
the offense alleged in the information, although designated as grave
slander, should properly be classified as slight oral defamation which
prescribes in two months; but said motion, opposed by the prosecution,
was denied.
After hearing the evidence, the Court of First Instance of Manila
found that "there is evidence beyond reasonable doubt that the herein
accused slandered the complainant, as established by the prosecution,
the said offense, however, being slight in nature as it arose from the
heat of anger, the same being defined and penalized under Article 358
of the Revised Penal Code," but instead of dismissing the case, the
Court sentenced the defendant to pay a fine of with subsidiary
imprisonment in case of insolvency, and to pay the costs.
Held: The accused cannot be convicted of the offense of slight oral
defamation necessarily included in the offense of grave slander charged

850
 COMPUTATION OF PRESCRIPTION OF OFFENSES Art. 91

in the information, where the lesser offense had already prescribed at

the time the information filed.

Prescription does not divest court of jurisdiction; it is a

ground for acquittal of the accused.
When there is a plea of prescription by the defense and the same
appears from the allegation of the information or is established, the
court must exercise jurisdiction, not inhibit itself, holding the action
to have prescribed and absolving the defendant. (Santos vs. Super-
intendent, 55 Phil. 345, 349)

Art. 91 . Computation of prescription of offenses. — Th e p e ri o d

o f p r e s c r i p t i o n sh al l c o m m e n c e t o ru n fro m th e da y o n w h i c
h th e cri m e i s d i s c o v e r e d b y th e o f f e n d e d party , th e
a u t h o r i t i e s , o r th ei r a g e n t s , an d sh al l b e i n t e r r u p t e d b y th e
filing o f th e c o m p l a i n t o r i n f o r m a t i o n , an d shal l c o m m e n c e t
o ru n ag ai n w h e n suc h p r o c e e d i n g s t e r m i n a t e w i t h o u t th e
a c c u s e d b e i n g c o n v i c t e d o r a c q u i t t e d , o r ar e u n j u s t i f i a b l y
s t o p p e d for an y r e a s o n no t i m p u t a b l e t o h i m .

Th e o f p r e s c r i p t i o n shal l no t ru n w h e n th e of fe n d e
r i s ab se n t from th e P h i l i p p i n e A r c h i p e l a g o .

Outline of the provisions:

The period of prescription commences to run from the day
on which the crime is discovered by the offended party, the
authorities or their agents.
2. It is interrupted by the filing of the complaint or informa-
tion.
3. . It commen ces to run again whe n such
proceedings terminate without the accused being convicted
or acquitted or are unjustifiably stopped for any reason
not imputable to him.
4. The term of prescription shall not run when the offender
is absent from the Philippines.

851
Art. 91 COMPUTATION OF PRESCRIPTION OF OFFENSES

Illustration of rules Nos. 2 and 3.

A committed serious oral defamation against Ki n March, 1935.
As K came to know of the act complained of only on March 4, 1936,
K filed the complaint on that date.
Because his official duties needed him to be in Mindanao, K was
not able to attend the hearing of the case. Upon motion of defendant
A, the case was dismissed on January 21 , 1937, without prejudice to
the fiscal filing again the same action.
On February the case was revived by the fiscal by filing
a new information. Serious oral defamation prescribes in 6 months.
From what date must the six-month period be counted?
It must be counted from January 21 , 1937. (People vs. Aquino,
68 Phil. 588, 590)
It cannot be counted from March, 1935, when the crime was
committed, because it was discovered by the offended party only on
March 4, 1936, and the running of the period of prescription stopped
on that date by the filing complaint in court. Hence, it must be
counted from January because when the case was dismissed
on that date, the period of prescription commenced to run again. Note
that the proceedings terminated without the accused being convicted
or acquitted.

The period of prescription commences to run from the date

of commission of crime if it is known at the time of its
com- mission.
Thus, if there is nothing that was concealed or needed to be
discovered, because the entire series of transactions was by public
instruments, duly recorded, the crime of estafa committed in connec-
tion with said transactions was known to the offended party when
it was committed and the period of prescription commenced to run
from the date of its commission. (People vs. Dinsay, 40
12th 50)

The offended party had constructive notice of the forgery after

the deed of sale, where his signature had been falsified, was registered
in the Office of the Register of Deeds on August (Cabral vs.
Puno, No. April 30, 1976, 70 SCRA 606, 609)

852
 COMPUTATION OF PRESCRIPTION OF OFFENSES Art. 91

From the date of commission or from the date of discovery.

The period of prescription of crime commences to run from the
commission of the offense or its discovery, if the commission of the
same was unknown. (People vs. 40 O.G. 2313)
The period of prescription for the offense of failure to register
with the SSS shall begin from the day of the discovery of the viola-
tion if this was not known at the time of its commission. A contrary
view would be dangerous as the successful concealment of an offense
during the period fixed for its prescription would be the very means
by which the offender may escape punishment. (People vs. Monteiro,
G.R. No. 49454, Dec. 21 , 1990, 192 SCRA 548, 551)

It is discovery of crime, not discovery of offender.

The discovery of the crime should not be confused with the dis-
covery of the offender. The fact that the culprit is unknown will not
prevent the period of prescription from commencing to run.
It is not necessary that the accused be arrested. (People vs.
Joson, 46 Phil. 380, 384)

Period of prescription of continuing crime never runs.

Facts: The accused was charged with violation of a municipal
ordinance in that he constructed dikes in navigable waterways
(river and creek) of the public domain without authorization from
the Secretary of Public Works and Communications. The dikes were
constructed in 1939 while the was filed in 1947. Did the crime
prescribe?
Held: The prescriptive period of continuing crime, cannot begin
to run because there could be no termination of continuity and the
crime does not end. The case would have been different had the infor-
mation alleged that the dikes existed until such date obstructing the
course streams, because the crime ended on that date. (Arches
vs. Bellasillo, 81 Phil. 190, 192)

The crime is discovered by the offended party, (2) the

authorities or (3) their agents.
A saw the killing with treachery of B by After the commission
crime, C threw the dead body of B into the river. The dead body

853
Art. 91 COMPUTATION OF PRESCRIPTION OF OFFENSES

of B was never seen again or found. A was neither an authority nor an

agent of an authority, nor a relative of B. For 25 years, A kept silent
as to what he witnessed. After 25 years, A revealed to the authorities
that C murdered B.
May C be prosecuted for murder even if 25 years already
elapsed?
Yes, because the period of prescription did not commence to
run. The commission of the crime was known only to A, who was
not the offended party, an authority or an agent of an authority. It
was discovered by the authorities only when A revealed to them the
commission of the crime.

Period of prescription was interrupted when preliminary

ex- amination was made by municipal mayor but accused
could not be arrested because he was in hiding.
The accused killed a man on June 19, 1911 . The municipal
president, who began the preliminary investigation because the justice
of the peace was absent, issued a warrant of arrest. The accused
could not be arrested because they fled to an unknown place. The
information for homicide was filed on June Accused Isidro
Parao was captured in July, 1927. Did the offense prescribe?
Held: No. The preliminary i n vesti gati on conducted by the
municipal president, in the absence of the justice of the peace or
auxiliary justice of the peace, partakes of the nature of a judicial
proceeding. Judicial proceedings having been taken against the
accu and his arrest having been ordered, which could not be carried
into effect on account of his default, the crime has not prescribed.
(People vs. Parao, 52 Phil. 712, 715)

The crime of homicide prescribed in 15 years under the old Penal

Code. The proceedings in this case were stopped for reasons imput-
able to the accused, that is, they fled to an unknown place, making
it difficult to arrest them for further proceedings.

Filing of complaint with the prosecutor's office interrupts

running of period of prescription of offense charged.
Section 1, Rule 110, Revised Rules of Criminal Procedure
provides:

854
 COMPUTATION OF PRESCRIPTION OF OFFENSES Art. 91

Institution of criminal actions. — Criminal actions shall

be instituted as follows:
For offenses where a preliminary investigation is required
pursuant to Section 1 of Rule by filing the complaint
with the proper officer for the purposes of conducting the
requisite preliminary investigation;
(b) For all other offenses, by filing the complaint or information
directly with the Municipal Trial Courts and Municipal
Circuit Trial Courts or the complaint with the office of
the prosecutor. In Manila and other chartered cities, the
complaint shall be filed with the office of the prosecutor
unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the period
of prescription of the offense charged unless otherwise provided in
special (Emphasis supplied.)

The of the complaint in the municipal court, even if it

be merely for purposes of preliminary examination or
investiga- tion, interrupts the period of prescription.
In view of this diversity of precedents, and in order to provide
guidance for Bench and Bar, this Court has re-examined the question
and, after mature consideration, has arrived at the conclusion that the
true doctrine is, and should be, the one established by the decisions
holding that the filing of the complaint in the Municipal Court, even if
it be merely for purposes of preliminary examination or investigation,
should, and does, interrupt the period of prescription of the criminal
responsibility, even if the court where the complaint or information is
filed can not try the case on its merits. Several reasons buttress this
conclusion: first, the text of Article 91 of the Revised Penal Code, in
declaring that the period of prescription "shall be interrupted by the
filing complaint or information" without distinguishing whether
the complaint is filed in the court for preliminary examination or
investigation merely, or for action on the merits. Second, even if the
court where the complaint or information is filed may only proceed to
investigate the case, its actuations already represent the initial step
proceedings against the offender. Third, it is unjust to deprive
the injured party of the right to obtain vindication on account of de-
lays that are not under his control. All that the victim offense

855
 Art. 91 COMPUTATION OF PRESCRIPTION OF OFFENSES

may do on his part to initiate the prosecution is to file the requisite

complaint.
And it is no argument that Article 91 also expresses that the
interrupted prescription "shall commence to run again when such pro-
ceedings terminate without the accused being convicted or
thereby indicating that the court in which the complaint or information
is filed must have power to acquit or convict the accused.
Precisely, the trial on the merits usually terminates in convic-
tion or acquittal, not otherwise. But it is in the court conducting a
preliminary investigation where the proceedings may terminate
without conviction or acquittal, if the court should discharge the ac-
cused because no prima facie case has been shown.
Considering the foregoing reasons, the Court hereby overrules
the doctrine cases of People vs. Del Rosario, Decem-
ber 29, 1960, and People vs. Coquia, promulgated June 29,
1963. (People vs. No. Feb. 28, 1967, 19 SCRA 494,
500-501)

The complaint or information that will interrupt the period

of prescription must be the proper information or
complaint corresponding to the offense.
On April 1, 1959, Felipe Abuy was charged in the Municipal
Court of Zamboanga City with the crime of trespass to dwelling com-
mitted against Carpio. Upon motion of the prosecution, the
case was dismissed on the ground that the evidence so far presented
would not sustain accused's conviction. Subsequently, on Nov. 13,
1959, Abuy was charged before the same court with the crime of un-
just vexation committed on the person of Michaela de Magadia. Abuy
filed a motion to quash the information on the ground of prescription.
The court sustained the motion.

The complaint or information that will interrupt the period must

be the proper information or complaint corresponding to the offense.
the first information was for trespass to dwelling, the elements
of which are entirely different from the elements of the offense of
unjust vexation. There is nothing to show that the two offenses are
related to each other. Consequently, the filing of one does not inter-
rupt the prescriptive period as to the other. (People vs. Abuy, G.R.
No. May 30, 1962, 5 SCRA 222, 226-227)

856
 COMPUTATION OF PRESCRIPTION OF OFFENSES Art. 91

Effect of amended complaint or information upon

period of prescription.
If the original complaint or information is filed within the
prescriptive period and the amendment was made after said period,
a distinction should be made b etween a new and different act
complained of and mere correction or new specifications to amplify
and give greater precision to the allegations in support of the cause
originally presented.
If it is merely a correction of a defect, the date of the original
complaint or information should be considered. (LTB vs. Ramos, G.R.
No. 41399, 9, 1934)

The filing of the information in the court of Batangas for

estafa, even if erroneous, because it had no territorial
jurisdiction over the offense charged, tolls the running of
the prescriptive period of the crime, since the jurisdiction
of a court is determined in criminal cases by the
allegations of the complaint or information, and not by the
result of proof.
In a case, resp ond en t judge, in su s t a i n i n g the ground of
prescription, ruled that there was no interruption of the prescriptive
period during the pendency of the case in his court, because it had
no territorial jurisdiction over the offense charged, and that
proceedings contemplated by Article are proceedings which are
valid and before a competent court."
Held: Settled is the rule that the jurisdiction of a court is
determined in criminal cases by the allegations of the complaint
or information, and not by the result of proof. It follows that the
Batangas court was vested with lawful jurisdiction over the criminal
complaint filed with it, which expressly alleged that the offense was
committed "in the Municipality of Batangas, Province of Batangas,"
and that the proceedings therein were valid and before a competent
court, until the same court issued its order, dismissing the case and
declaring itself without territorial jurisdiction on the basis of the
evidence presented to it by both the prosecution and the accused.
(People vs. Galano, No. L-42925, Jan. 31 , 1977, 75 SCRA 193,
198)

857
Art. 91 COMPUTATION OF PRESCRIPTION OF OFFENSES

"Proceedings terminate without the accused being convicted

or acquitted."
In the case of People vs. Aquino, 68 Phil. 588, 590, when the
case was dismissed upon petition of accused Aquino, the proceeding
terminated without the accused being convicted or acquitted. The
period of prescription commenced to run again.
Suppose, the case was dismissed without the consent or over
the objection of the accused who had already been arraigned?
In this case, the dismissal is final. A cannot be prosecuted any
more for the same offense, even within the prescriptive period, on the
ground of double jeopardy.

The termination of a criminal case contemplated in Article

91 on prescription of crimes refers to a termination that is
as to amount to a jeopardy that would bar a subsequent
prosecution.
One was charged with the crime of grave oral defama-
tion which was discovered on December 15, 1973. The information
was filed in court on January On March the court,
on motion to dismiss, issued an order of dismissal, on the
ground that the preliminary investigation conducted by the fiscal
did not comply with the requirements of Presidential Decree No. 77.
Lauron had not been arraigned. The case was refiled in court under
a new information on March The crime of grave oral defama-
tion prescribes in six months.

Said the Supreme Court:

"We hold that the termination of a criminal case
contemplated in Article refers to a termination that is
final, in the sense of being beyond reconsideration, as in
the cases of an unappealed conviction or an acquittal."
Comment: Article provides that the period of prescription (of
offenses) "shall commence to run again when such proceedings (the
filing complaint or information) terminate without the accused
being convicted or (italics supplied)
If the "termination x x x refers to a termination that is final, x x
x as in the cases of an unappealed conviction or an acquittal," there

858
 COMPUTATION OF PRESCRIPTION OF OFFENSES Art. 91

would be no occasion to speak of prescription of offenses, no matter

how long a time has elapsed, because the accused is already convicted
(and he does not appeal) or acquitted.
Article 91 may be considered only when the accused, who invokes
it, is being charged with and prosecuted for an offense that allegedly
has already prescribed. If the proceedings, which began with the filing
of the complaint or information, terminate in the conviction of the
accused or in his acquittal (the termination being final), how may the
question of prescription arise? Or, what period of prescription
commence to run again?"
This is why the law "without the accused being convicted
or acquitted." In such case, the accused may still be prosecuted,
but with the previous termination of the proceedings, the question
of prescription may still arise, because the period of prescription
ran again. At the time of the new prosecution, the crime may have
already prescribed.

"Or are unjustifiably stopped for any reason not imputable

to him."
Thus, if the proceedings are stopped for a reason imputable to the
accused, the period of prescription does not commence to run again.

Example:
When the accused has evaded arrest and the case has to be ar-
chived by the court, the proceedings are stopped because fault
of the accused. The case cannot be tried if he is not present.
(See also the case People vs. Parao, 52 Phil. 712)

The term of prescription does not run when the offender is

absent from the Philippines.
A published a libel in a newspaper and immediately left for
Hongkong where he remained for three years. Later, he returned to
the Philippines. Can A be prosecuted for libel upon his return to his
country?
Yes, because the crime of libel did not prescribe. A was absent
from the Philippines during the period when the crime would have
prescribed.

859
 Art. 91 COMPUTATION OF PRESCRIPTION OF OFFENSES

Prescription of election offenses — if discovery of

offense is incidental to judicial proceedings, prescription
begins when such proceeding terminates; otherwise, (2)
from date of commission of offense.
If the discovery of the offense is incidental to judicial proceed-
ings in election contest, prescription begins when such proceedings
terminate.
But, if the falsification committed by the inspectors in connection
with the counting of the votes and the preparation of election returns
was known to the protestants and their election watchers before the
filing of the election protests, the period of prescription began from
the date of the commission of the offense. (People vs. 56 Phil.
109, 114)

Art. 91 may apply when a special law, while providing a

pre- scriptive period, does not prescribe any rule for the
applica- tion of that period.
Thus, in a case where the accused is prosecuted for violation
of the Usury Law, there being no rule in Act No. 4763 regarding
the enforcement of the period of prescription established thereby,
pursuant to Article 10 of the Revised Penal Code, the rule provided
for in Article 91 of said Code shall be applied, according to which the
period of prescription of crimes shall commence to run from the time
of the perpetration of the offense and in case the commission of the
same is unknown, from the day on which the crime is discovered by
the offended party, the authorities or their agents. (People vs.
C.A., 40 O.G. 2313)

Prescription of the offense of false testimony — from time

principal case is finally decided.
With regard to the crime of false testimony against the defendant
(Art. 180), considering that the penalties provided therefor are made
to depend upon the conviction or acquittal of the defendant in the
principal case, the act of testifying falsely does not therefore consti-
tute an actionable offense until the principal case is finally decided.
And before an act becomes a punishable offense, it cannot possibly
be discovered as such by the offended party, the authorities or their
agents. (People vs. Maneja, 72 Phil. 256, 257-258)

860
 PRESCRIPTION OF PENALTIES Art. 92

This is true only when the false testimony is against the defend-
ant. As regards false testimony in favor of the defendant, there is a
specific penalty which does not depend on the conviction or acquittal
defendant. (Art. 181)

Art. 92 . When and how penalties — Th e p e n a l t i e s

i m p o s e d b y final s e n t e n c e p r e s c r i b e a s f ol l o ws :
1. . D e a t h an d reclusion perpetua, in t w e n t y
years ; 2 . O th e r affli ctive p e n a l t i e s , i n fifteen
y ea rs ;
3 . C o r r e c t i o n a l p e n a l t i e s , i n te n y e a r s , wi t h th e e xc ep -
tio n of th e p e n a l t y of arresto mayor, w h i c h p r e s c r i b e s in five
years ;
4. L i gh t p e n a l t i e s , i n on e ye ar .

The penalties must be imposed by final sentence.

Note the first sentence of this article which specifically requires
that the penalties must be "imposed by final sentence." Hence, if the
convict appealed and thereafter fled to the mountains, the penalty
imposed upon him would never prescribe, because pending the appeal,
the sentence is not final.

In prescription of crimes, it is the penalty prescribed by

law that should be considered; in prescription of
penalties, it is the penalty imposed that should be
considered.
A committed the crime of falsification punishable by
mayor. Twelve years elapsed since the crime was discovered by the
authorities. Then, the fiscal filed an information for falsification. A was
arrested and prosecuted. During the trial, A proved two mitigating
circumstances without any aggravating circumstance. Did the crime
prescribe?
No, because although the proper penalty to be imposed is prision
correccional, the penalty one degree lower, in view of the privileged
861
mitigating circumstance (Art. 64, par. 5), is the penalty of prision
mayor which is prescribed by the law for the crime that should be

862
 Art. 92 PRESCRIPTION OF PENALTIES

considered. Art. 90 uses the words, punishable Hence,

the crime did not prescribe, because the time that elapsed is not more
than 15 years.
But suppose that in the same problem, A commenced to serve
the sentence and after a month, he escaped and remained at large for
twelve years, in case he is captured thereafter, can he be required to
serve the remaining period of his sentence? No, because the penalty
correccional already prescribed. Art. 92 uses the words
penalties imposed by final

Fine as a light penalty.

Under Art. 26, a fine of less than is a light penalty, and
if not less than it is a correctional penalty. Under Art. 9, par.
3, a light felony is punishable by a light penalty, whose fine does not
exceed Under Art. 90, light offenses prescribe in two months. If
the fine imposed be exactly should it prescribe in two months
as a light penalty or in ten years as correctional penalty?
In the case of People vs. Hu Hai @ Haya, 99 Phil. 725, 727,
the Supreme Court held that where the question at issue is the
prescription of a crime and not the prescription of a penalty, Art.
9 should prevail over Art. 26. Art. 26 has nothing to do with the
definition of offenses but merely classifies fine when imposed as a
principal penalty.

Illustrations:

A committed a crime for which the law provides a fine of

as a penalty. What is the prescriptive period of the crime? Two
The issue here is not the prescription of penalty, because
there is no final sentence and A has not evaded the sentence.
Art. 9 shall prevail. Since the fine does not exceed the
crime committed is a light felony.

2. But suppose that A was convicted, he could not pay the fine of
and was made to serve subsidiary imprisonment. Then,
while serving subsidiary imprisonment, he escaped, thereby
evading the service of his sentence. What is the prescriptive
period? Ten years. The issue here is prescription of penalty.
Art. 26 prevails. Since the fine is not less than P200 , it is a cor-
rectional penalty.

863
 COMPUTATION OF PRESCRIPTION OF PENALTIES Art. 93

The subsidiary penalty for nonpayment of the fine is im-

material.
A fine of being a correctional penalty, prescribes in 10
years. That the subsidiary imprisonment could not exceed six months
is immaterial. (People vs. Salazar, 98 Phil. 663 , 665)

Art. 93. Computation prescription of penalties. — Th e

p e r i o d o f p r e s c r i p t i o n o f p e n a l t i e s sh al l c o m m e n c e t o ru n
from th e dat e w h e n th e c u l p r i t s h o u l d e v a d e th e s e r v i c e o f hi
s s e n t e n c e , an d i t sh al l b e i n t e r r u p t e d i f th e d e f e n d a n t s h o u l
d giv e h i m s e l f up , b e c a p t u r e d , s h o u l d g o t o s om e f o r e i g n
coun - tr y wi t h w h i c h thi s G o v e r n m e n t ha s n o e x t r a d i t i o n
treaty , o r s h o u l d c o m m i t a n o t h e r c r i m e b e f o r e th e e x p i r a t i o
n o f th e p er i o d o f p r e s c r i p t i o n .

Outline of the provisions:

The period of prescription of penalties commences to run from
the date when the culprit evaded the service of his sentence.
2. It is interrupted if the convict —
(1) Gives himself up,
(2) Be captured,
(3) Goes to a foreign country with which we have no extradi-
tion treaty, or
(4) Commits another crime before the expiration of the period
of prescription.
The period of prescription of penalties shall commence
to run again when the convict escapes again, after having
been captured and returned to prison.

Elements:
1. That the penalty is imposed by final sentence;
That the convict evaded the service of the sentence by escaping
during the term of his sentence;

864
Art. 93 COMPUTATION OF PRESCRIPTION OF PENALTIES

3. That the convict who escaped from prison has not given himself
up, or been captured, or gone to a foreign country with which
we have no extradition treaty, or committed another crime;
4. That the penalty has prescribed, because of the lapse of time
from the date of the evasion of the service of the sentence by the
convict.

Evasion of the service of the sentence is an essential element

of prescription of penalties.
According to Art. 93, the period of prescription of penalties
commences to run from the date when the culprit should evade the
service of his sentence.

Infante vs. Warden

(92 Phil. 310)
Facts: In this case, the accused was convicted of murder and
sentenced to 17 years, 4 months and 1 day of reclusidn temporal. After
serving 15 years, 7 months and 11 days, on March 6, 1939, he was
granted a conditional pardon. The condition of his pardon was that he
should not commit any crime in the future. On April 25, 1949, he was
found guilty of driving without license. He was committed to prison
for violation of said conditional pardon. Between March 6, 1939, and
April 25, 1949, more than 10 years elapsed.
The accused interposed the defense of prescription, contending
that since the remitted portion of his original penalty was less than 6
years (like correccional), the prescriptive period of that penalty
was only 10 years.
Held: The defense of prescription will not prosper because there
was no evasion of the service sentence. There was no evasion of the
service sentence in this case, because such evasion presupposes
escaping during the service of the sentence consisting in deprivation
of liberty.

Period of prescription that ran during the time the convict

evaded service of sentence is not forfeited upon his capture.
The period of prescription that ran during the evasion is not
forfeited, so that if the culprit is captured and evades again the service
of his sentence, the period of prescription that has run in his favor
should be taken into account. (Albert)

865
 COMPUTATION OF PRESCRIPTION OF PENALTIES Art. 93

Example :

A committed a crime by prision correccional. He was

convicted after trial. While serving sentence for one month, A escaped.
He remained at large for 5 years. Then, he was captured. After staying
in prison for two months, he escaped again and remained at large for
6 years. In this case, if captured again, A cannot be required to serve
the remaining portion of his sentence, because the penalty prision
correccional prescribes in ten years. On two occasions, A evaded the
service of his sentence for a total of eleven years.

"Should go to some foreign country with which this

Govern- ment has no extradition treaty."
Suppose the Government has extradition treaty with the country
to which the offender escaped, but the crime committed is not included
in the treaty, will that fact interrupt the running of the prescriptive
period?
It is believed that it would interrupt the running prescrip-
tive period.

"Should commit another crime before the expiration of the

period of prescription."
Thus, if A, sentenced to suffer 4 months and days of
mayor, escaped from jail and remained at large for 4 years, months
and 28 days, but on the next day he committed theft and was arrested
6 months after, A can be required to serve the remaining period of
his sentence of 4 months and days. The reason is that A commit-
ted a crime (theft) before the expiration of five years, the period of
prescription of the penalty of arresto mayor.

Evading the service of the sentence is not committing a

crime before the expiration of the period of prescription of
penalties.
It has been asked whether or not the evasion of the service of
the sentence, being in itself a crime (Art. 157), should interrupt the
running period of prescription of penalties.
The clause commit another crime before the expiration
of the period of prescription" refers to crime committed when the

866
Art. 93 COMPUTATION OF PRESCRIPTION OF PENALTIES

period of prescription has already commenced to run. On the other

hand, Art. 93 specifically provides that period of prescription
of penalties shall commence to run from the date when the culprit
should evade the service of his
Hence, this evasion of the service sentence, which is a requi-
site in the prescription of penalties, must necessarily take place before
the running of the period of prescription and cannot interrupt it.

Acceptance of conditional pardon interrupts the

prescriptive period.
The acceptance of a conditional pardon also interrupts the
prescriptive period, likening such acceptance to the case of one who
flees from this jurisdiction. (People vs. Puntillas, G.R. No. 45269,
June 15, 1938)

Reason why evasion of service of sentence is taken in

favor of the convict in prescription of penalties.
"If a convict under confinement, at the risk of being killed,
succeeds in breaking jail and also succeeds in evading re-arrest for a
certain period of time which by no means is short, despite the efforts
of all the instrumentalities of the Government including sometimes
the setting of a prize or reward on his head, which thereby enlists the
aid citizenry, the law calls off the search for him, and condones
the penalty. But during that period of prescription the escaped convict
lives a life of a hunted animal, hiding mostly in the mountains and
forests in constant mortal fear of being caught. His life far from being
happy, comfortable and peaceful is reduced to a mere existence filled
with fear, discomfort, loneliness and misery. As the distinguished
penal law commentator Viada said, the convict who evades sentence
is sometimes sufficiently punished by his voluntary and self-imposed
banishment, and at times, that voluntary exile is more grievous
than the sentence he was trying to avoid. (Viada y Villaseca, Codigo
Penal, Vol. p. 41 , 5th ed.) And all the time he has to utilize every
ingenuity and means to outwit the Government agencies bent on
recapturing him. For all this, the Government extends to him a sort
of condonation or (Infante vs. Provincial Warden, 92 Phil.
310, 325, Concurring and Dissenting Opinion of Montemayor, J.)

867
 Chapter Two
PARTIAL EXTINCTION OF CRIMINAL
LIABILITY

Art. 94 . Partial extinction of criminal liability. — Cr i m i n a l

l i ab i l i t y i s e x t i n g u i s h e d p a r t i a l l y :
B y conditiona l pardon ;
2. B y c o m m u t a t i o n o f th e s e n t e n c e ; an d

3 . Fo r go o d c o n d u c t a l l o w a n c e s w h i c h th e cu l p r i t ma y
ear n w h i l e h e i s s e r v i n g hi s s e n t e n c e .

Nature of conditional pardon.

Conditional pardon delivered and accepted is considered a con-
tract between the sovereign power of the executive and the convict
that the former will release the latter upon compliance with the
condition.

Usual condition imposed upon the convict in conditional

pardon.
In conditional pardon, the condition usually imposed upon the
convict is that shall not again violate any of the penal laws of the
Philippines."

Commutation of sentence.
It is a change of the decision of the court made by the Chief
Executive by reducing the degree of the penalty inflicted upon the
convict, or by decreasing the length imprisonment or the amount
of the fine.

867
 Art. 94 PARTIAL EXTINCTION OF CRIMINAL LIABILITY

Specific cases where commutation is provided for by the

Code.
1. When the convict sentenced to death is over 70 years of
age. (Art. 83)
2. When eight justices of the Supreme Court fail to reach a
decision for the affirmance of the death penalty.
In either case, the degree of the penalty is reduced from death
to reclusion perpetua.
In commutation of sentence, consent offender is not neces-
sary. The public welfare, not his consent, determines what shall be
done. (Biddle vs. 274 U.S. 480)

For good conduct

allowances.
Allowances for good conduct are deductions from the term of the
sentence for good behavior. (Art. 97)
This is different from that provided in Art. 29 which is an
extraordinary reduction of full time or four-fifths of the preventive
imprisonment from the term of the sentence.

A prisoner is also entitled to special time allowance for

(Art. 98) A deduction of 1/5 of the period of his sentence is granted to
a loyal prisoner. (See Art. 158.)

Parole should be added as No. 4 in the enumeration of causes

of partial extinction of criminal liability.
The parole granted to a convict by the Parole Board should be
added. A parole may be granted to a prisoner after serving the mini-
mum penalty under the Indeterminate Sentence Law.

of parole.
Parole consists in the suspension of the sentence of a convict af-
ter serving the minimum term of the indeterminate penalty, without
granting a pardon, prescribing the terms upon which the sentence
shall be suspended.

If the convict fails to observe the conditions of the parole, the

Board of Pardons and Parole is authorized to direct his arrest and
868
 CONDITIONAL PARDON Art. 95

return to custody and thereafter to carry out his sentence without

deduction time that has elapsed between the date parole
and the subsequent arrest.

Is conviction necessary to revoke parole?

The mere commission, not conviction by the court, of any
crime is sufficient to warrant parolee's arrest and reincarceration.
(Guevara)
In a petition for habeas corpus, it was contended that the
recommitment order was premature, because it came down before
his convictions of the series of estafa committed by him during the
period of the parole. It was held that it was now rather academic,
even assuming that final conviction is necessary in order to constitute
a violation of the condition parole. vs. Director, 80
Phil. 187, 189)

Conditional pardon distinguished from parole.

1. Conditional pardon, which may be given at any time after final
judgment, is granted by the Chief Executive under the provisions
of the Administrative Code; parole, which may be given after
the prisoner has served the minimum penalty, is granted by
the Board of Pardons and Parole under the provision of the
Indeterminate Sentence Law.
2. For violation of the conditional pardon, the convict may be
ordered rearrested or reincarcerated by the Chief Executive, or
may be prosecuted under Art. 159 of the Code; for violation of
the terms of the parole, the convict cannot be prosecuted under
Art. 159. He can be rearrested and reincarcerated to serve the
unserved portion of his original penalty.

Art. 95 . Obligation incurred by a person granted conditional

pardon. — An y p e r s o n wh o ha s b e e n g r a n t e d c o n d i t i o n a l par-
do n shall in cu r th e o b l i g a t i o n o f c o m p l y i n g strictl y wit h th e
c o n d i t i o n s i m p o s e d t h e r e i n , o t h e r w i s e , hi s n o n c o m p l i a n c e
wi t h an y o f th e c o n d i t i o n s sp ec i f i e d shall resu l t i n th e revoca-
tio n of th e p ar d o n an d th e p r o v i s i o n s of Article shall be
ap p li e d to him .

869
 Art. 96 COMMUTATION OF SENTENCE

Outline of the provisions:

1. He must comply strictly with the conditions imposed in the
pardon.
2. . Failure to comply with the conditions shall result in
the revocation of the pardon. Under Sec. 64(i), R.A.C., the
Chief Executive may order his arrest and reincarceration.
(People vs. Aglahi, 61 Phil. 233, 235)
3. He becomes liable under Art. 159. This is the judicial remedy.

Condition of pardon is limited to the unserved portion of

the sentence, unless an intention to extend it beyond that
time is manifest.
The duration of the conditions subsequent, annexed to a pardon,
would be limited to the period of the prisoner's sentence, unless an
intention to extend it beyond the term of his sentence was manifest
from the nature of the condition or the language in which it was
imposed. (Infante vs. Warden, 92 Phil. 310, 314)

Illustration:
Thus, if a convict was sentenced to 12 years and 1 day
as the maximum term of the indeterminate penalty, and
after serving 5 years he wa s granted a conditional pardon, the
condition being that he should not commit any crime in the future,
that condition must be complied with by him until the end of the 7
years from the grant of the conditional pardon, it being the unserved
portion of his sentence. If he commits a crime after the expiration of
the 7 years, he is not liable for violation of the conditional pardon.
The condition of the pardon is no longer operative when he commits
a new offense.

But if he commits a crime before the expiration of the 7 years,

he is liable for violation of the conditional pardon.

Art. 96. Effect of commutation — Th e c o m m u t a t i o n

o f th e o r i g i n a l s e n t e n c e for a n o t h e r o f a d i f fe r en t l e n g t h an d
n a t u r e shal l h av e th e l ega l effect o f s u b s t i t u t i n g th e l atte r i
n th e p l ac e o f th e former .

870
 ALLOWANCE FOR GOOD CONDUCT Art. 97

Art. 97 . Allowance good conduct. — Th e goo d c o n d u c t of

an y p r i s o n e r i n an y p e n a l i n s t i t u t i o n sh al l e n t i t l e hi m t o th e
f o l l o w i n g d e d u c t i o n s fro m th e p e r i o d o f hi s s e n t e n c e :
Du ri n g th e first tw o y ea r s of i mp r i s o n m e n t , he shall
be a l l o we d a d e d u c t i o n of five day s for eac h mo n t h of goo d be-
havior;
2 . D u r i n g th e t h i r d t o th e fi ft h year , i n c l u s i v e , o f hi s
i m p r i s o n m e n t , h e sh al l b e a l l o w e d a d e d u c t i o n o f ei gh t day s
for eac h m o n t h o f g oo d b e h a v i o r ;
3 . D u r i n g th e f o l l o w i n g y e a r s u n ti l th e t e n t h year , in-
c l u s i v e , o f hi s i m p r i s o n m e n t , h e sh al l b e a l l o w e d a d e d u c t i o
n o f te n day s for e a c h m o n t h o f go o d b e h a v i o r ; an d
4 . D u r i n g th e e l e v e n t h an d s u c c e s s i v e y e a r s o f hi s im-
p r i s o n m e n t , h e sh al l b e a l l o w e d a d e d u c t i o n o f f i f te e n day s
for eac h m o n t h o f go o d b e h a v i o r .

Application of the provisions of Art. 97.

The release of appellee Tan by the provincial warden, after an
imprisonment of only 2 years, 8 months and 21 days, was premature.
Under paragraph No. 1, Article 97 Revised Penal Code, he may
be allowed a deduction of five (5) days for each month of good behavior
during his first two years of imprisonment, which would be 24 months
multiplied by 5, or 120 days; under paragraph No. 2, he may be allowed
a deduction of eight (8) days a month for the next three years. For the
balance of eight (8) months, multiplied by 8, we have 64 days; so that
the total credit for good behavior would be 184 days, equivalent to 6
months and 4 days. The prisoner's actual confinement of 2 years, 8
months and 21 days, plus his possible total credit of 6 months and 4
days, would give the result of 3 years, 2 months and 25 days. Since
the maximum term of his sentence is 4 years and 2 months, appellee
Tan has an unserved portion of 11 months and 5 days. (People vs.
Tan, No. Feb. 25, 1967, 19 SCRA 433, 437)

No allowance for good conduct while prisoner is released

under conditional pardon.
The reason is that the good conduct time allowance is given
in consideration of the good conduct observed by the prisoner while

871
 Art. 98 ALLOWANCE FOR LOYALTY

serving his sentence. In this case, the accused was enjoying liberty
under a conditional He was not serving the remitted penalty
in prison. (People vs. Martin, 68 Phil. 122, 125)
By a consideration of the terms of Article 97 alone, and also in
conjunction with other parts of the Revised Penal Code, the phrase
prisoner" in Article 97 thereof is to be regarded as referring only
to a prisoner serving sentence. (Baking vs. Director of Prisons, No.
L-30603, July 28, 1969, 28 SCRA 851 , 860)

Art. 98 . Special time allowance for loyalty. — A d e d u c t i o n of

on e fifth o f th e p e r i o d o f hi s s e n t e n c e shal l b e g r a n t e d t o an y
p r i s o n e r wh o , h a v i n g e v a d e d th e s e r v i c e o f hi s s e n t e n c e un
- de r th e c i r c u m s t a n c e s m e n t i o n e d i n A rt i c l e 158 o f thi s Code
, gi ve s h i m s e l f u p t o th e a u t h o r i t i e s w i t h i n 4 8 h o u r s f o l l o w i n
g th e i s s u a n c e o f a p r o c l a m a t i o n a n n o u n c i n g th e p a s s i n g a w a
y o f th e c a l a m i t y o r c a t a s t r o p h e r e f e r r e d t o i n sai d ar ti cl e .

What is special time allowance for loyalty of prisoner?

It is a deduction of 1/5 of the period sentence of a prisoner
who, having evaded the service of his sentence during the calamity
or catastrophe men ti on ed in Art. 158 , gives himself up to the
authorities within 48 hours following the issuance proclamation
by the President announcing the passing away of the calamity or
catastrophe.

The deduction of one-fifth is based on the original sentence.

While this article mentions "the period of his sentence," it should
be understood that the convict is to be credited for loyalty with 1/5 of
his original sentence, not of the unexpired portion of his sentence.

Art. provides for increased penalty.

Under Art. 158, a convict who evaded the service of his sentence
by leaving the penal institution where he had been confined, on the
occasion of disorder resulting from a conflagration, earthquake,
explosion or similar catastrophe or during a mutiny in which he did

872
 WHO GRANTS TIME ALLOWANCE Art. 99

not participate, is liable to an increased penalty of the time still

remaining to be served — not to exceed 6 months), if he fails to give
himself up to the authorities within hours following the
issuance of a proclamation by the Chief Executive announcing the
passing away of the calamity.

Art. 99 . Who grants time allowance. — W h e n e v e r l a w f u l l y

justi fi ed , th e D i r e c t o r o f P r i s o n s sh al l gr an t a l l o w a n c e s for
goo d c o n d u c t . S u c h a l l o w a n c e s on c e g r a n t e d sh al l no t b e
revoked .

The allowance for good conduct is not an automatic right. It

must be granted by the Director of Prisons.
Allowances for good conduct once granted by the Director of
Prisons cannot be revoked by him.

The authority to grant time allowance is exclusively vested

in the Director.
There is no justification for the provincial warden's usurping the
authority Director of Prisons in crediting the prisoner with good
conduct time allowance. Such authority is exclusively vested in the
Director. (People vs. Tan, G.R. No. Feb. SCRA

873
 Title Five
CIVIL LIABILITY

Chapter One
PERSONS CIVILLY LIABLE FOR FELONIES

As a general rule, an offense ca u s e s tw o cl asses of injuries:

Social injury, produced by the disturbance and alarm which
are the outcome of the offense.
2 Personal injury, caused to the victim crime who may
have suffered damage, either to his person, to his property,
to his honor, or to her chastity.
The social injury is sought to be repaired through the imposi-
tion of the corresponding penalty; while the personal injury, through
indemnity, which is civil in nature.

Art. 100. Civil liability of a person guilty of felony. — E v e r y

p e r s o n c r i m i n a l l y li ab l e for a f e l o n y i s als o c i v i l l y li ab l e .

Civil liability arising from offenses.

Every person who, contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same. (Article
20, New Civil Code)

Civil obligations arising from criminal offenses shall be governed

by the penal laws. (Article 1161, New Civil Code)
The civil liability arising from negligence under the Revised
Penal Code is entirely separate and distinct from the responsibility
for fault or negligence called a quasi-delict. (Article 2176, New Civil

874
 CIVIL LIABILITY Art. 100

Code) But the party claiming payment for the damage done cannot
recover twice for the same omission of the defendant. (Article
New Civil Code)
Thus, if A was convicted of serious physical injuries through
negligence under the Revised Penal Code, and B, the injured party,
was indemnified in the criminal case for the damages caused to him,
the latter cannot recover damages in a separate civil action for the
same act or omission of A.
Civil liability under the Revised Penal Code includes restitu-
tion, (2) reparation of the damage caused, and (3) indemnification for
consequential damages. (Article 104, Revised Penal Code)

Basis of civil liability.

Underlying the legal principle that a person who is criminally
liable is also civilly liable is the view that from the standpoint of its
effects, a crime has dual character: (1) as an offense against the state
because of the disturbance social order; and (2) as an offense
against the private person injured by the crime unless it involves the
crime of treason, rebellion, espionage, contempt and others wherein no
civil liability arises on the part of the either because there are
no damages to be compensated or there is no private person injured by
the crime. In the ultimate analysis, what gives rise to the civil liability
is really the obligation of everyone to repair or to make whole the
damage caused to another by reason of his act or omission, whether
done intentionally or negligently and whether or not punishable by
law. (Occena vs. G.R. No. 82146, Jan. 22, 1990, 181 SCRA
328, 333)

Damages that may be recovered in criminal cases.

In crimes against property, damages based on the price of the
thing and its special sentimental value to the injured party may be
recovered, if the thing itself cannot be restored. (Article 106, in relation
to Article 105, Revised Penal Code)
In crimes against persons, like the crime of physical injuries,
the injured party is entitled to be paid for whatever he spent for the
treatment of his wounds, doctor's fees, and for medicine, as well as
the salary or wages unearned by him because of his inability to work
due to his injuries.

875
Art. 100 CIVIL LIABILITY

Damages may also be recovered for loss or impairment earning

capacity in cases of temporary or permanent personal injury. (Article
2205, new Civil Code)
Moral damages may be recovered in a criminal offense result-
ing in physical injuries, in the crimes of seduction, abduction, rape
or other lascivious acts, adultery or concubinage, illegal or arbitrary
detention or arrest, illegal search, libel, slander or any other form of
defamation, and in malicious prosecution. (Article 2219, new Civil
Code)
Exemplary damages as a part of the civil liability may be im-
posed when the crime was committed with one or more aggravating
circumstances. (Article 2230, new Civil Code)
Damages for death caused by a crime have been raised to
(People vs. Ravelo, G.R. Nos. 78781-82, Oct. 15, 1992,
202 SCRA 655, 673 People vs. Velaga, G.R. No. 87202,
July 23, 1991, 199 SCRA 518, 524 and in addition:
(1) The defendant shall be liable for the loss of the earning
capacity of the deceased, unless the deceased, on account
of permanent physical disability not caused by the defend-
ant, had no earning capacity;
(2) He shall be liable to give support the deceased was obliged
to give support under Article 291 new Civil Code, to
one not an heir of the deceased;
(3) He shall pay moral damages for mental anguish to the
spouse, l egi ti mate and i l l e gi ti ma te d e sc en d an ts and
ascendants. (Article 2206, New Civil Code)

But if there is no damage caused by the commission of the

crime, the offender is not civilly liable.
Thus, if the felony committed could not or did not cause any
damage to another, the offender is not civilly liable even if he is
criminally liable for the felony committed.
Example: A slapped the face of the mayor who was then in the
performance of his duty. Under Art. 148, the crime committed is direct
assault. As the slapping did not cause any injury to the mayor, A is
not civilly liable.

876
 CIVIL LIABILITY Art. 100

A person criminally liable for a felony is also civilly liable.

Every person criminally liable is also civilly liable. Civil liability
arising from crimes (ex delicto) shall be governed by the penal sub-
ject to the provisions of Arts. 29 to and
2216, 2230, 2233, and 2234 (regulating damages) Civil Code and
to the provisions of Rule Revised Rules of Criminal Procedure.

Since a person criminally liable is also civilly liable, does his

ac- quittal in a criminal case mean extinction of his civil
liability?
The Revised Penal Code is silent on this point. But the Revised
Rules of Criminal Procedure provide:
"The extinction of the penal action does not carry with it extinc-
tion of the civil. However, the civil action based on delict shall be
deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability
may arise did not (Sec. 2, par. 4, Rule III, Revised Rules of
Criminal Procedure)

Thus, the dismissal of the information or the criminal action

does not affect the right of the offended party to institute or continue
the civil action already instituted arising from the offense, because
such dismissal or extinction of the penal action does not carry with it
the extinction civil one. (People vs. 77 Phil. 1027) In this
case, there was a pending separate civil action, arising out of the same
offense, filed by the offended party against the same defendant.
Though the death of an accused-appellant during the pendency
of an appeal extinguished his criminal liability, his civil liability
survives. Extinction of criminal liability does not necessarily mean
that the civil liability is also extinguished. Only the criminal liability,
including the fine, which is pecuniary, but not civil, of the accused is
extinguished by his death, but the civil liability remains. (Petralba
vs. Sandiganbayan, G.R. No. 81337, Aug. 16, 1991, 200 SCRA 644,
649-650, citing People vs. Navoa, 132 SCRA 410 and People vs. Sen-
daydiego, 81 SCRA 120)

Civil liability may exist, although the accused is not held

criminally liable, in the following cases:
1. Acquittal on reasonable doubt. — When the accused in a

877
criminal prosecution is acquitted on the ground that his

878
Art. 100 CIVIL LIABILITY

guilt has not been proved beyond reasonable doubt, a civil

action for damages for the same act or omission may be
instituted. (Art. 29, Civil Code)

Award in judgment of acquittal.

The court may acquit an accused on reasonable
doubt and still order payment of civil damages already
proved in the same case without need for a separate civil
action. The reason is the accused has been accorded due
process. To require a separate civil action would mean
needless clogging of court dockets and unnecessary du-
plication of litigation with all its attendant loss of time,
effort and money on the part of all concerned. (Maximo
vs. Gerochi, Jr., Nos. L-47994- 97 , Sept. 24 , 1986, 144
SCRA 326 , 329 , citing Padilla vs. Court of Appeals [129
SCRA

2. Acquittal from a cause of nonimputability. — The ex-

emption from criminal liability in favor of an imbecile or
insane person, and a person under fifteen years of age, or
one over fifteen but under eighteen years of age, who has
acted without discernment, and those acting under the
compulsion of an irresistible force or under the impulse
of an uncontrollable fear of an equal or greater injury,
does not include exemption from civil liability. (Art.
Revised Penal Code)

3. Acquittal in the criminal action for negligence does not

preclude the offended party from filing a civil action to
recover damages, based on the new theory that the act is
a quasi-delict. (Art. 2177, Civil Code)
4. When there is only civil responsibility. — When the court
finds and so states in its judgment that there is only civil
responsibility, and not criminal responsibility, and that
this finding is the cause of acquittal. (De Guzman vs. Alva,
51 O.G. 1311)

5. In cases of independent civil actions. (Arts. 31 , 32 , 33 , and

34, Civil Code)

879
 CIVIL LIABILITY Art. 100

P R O S E C U T I O N O F CIVIL ACT IO N
A R I S I N G FRO M CRIME

Provisions of the Revised Rules of Criminal Procedure

(Rule on the prosecution of civil action arising from
offenses:
Institution of criminal and civil actions. — (a) When a criminal
action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with
the criminal action unless the offended party waives the civil action,
reserves the right to institute it separately, or institutes the civil
action prior to the criminal action. (Sec. l[a], 1st par.)

The criminal action for violation of Batas Pambansa 22 shall

be deemed to include the corresponding civil action. No reservation
to file such civil action shall be allowed. (Sec. l[b], 1st par.)

When civil action may proceed independently. — In the cases

provided for in Articles 32 , 33 , 34 and 2176 Civil Code
Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently criminal action
and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same
act or omission charged in the criminal action. (Sec. 3)
When separate civil action is suspended. —
(a) After the criminal action has been commenced, the separate
civil action arising therefrom cannot be instituted until
final judgment has been rendered in the criminal action;
(b) If the criminal action is filed after the said civil action has
already been instituted, the latter shall be suspended in
whatever stage it may be found before judgment on the
merits. The suspension shall last until final judgment
is rendered in the criminal action. Nevertheless, before
judgment on the merits is rendered in the civil action,
the same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying
the criminal action. In case of consolidation, the evidence
already adduced in the civil action shall be deemed
automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine
880
Art. 100 CIVIL LIABILITY

the witnesses presented by the offended party in the

criminal case and of the parties to present additional
evidence. The consolidated criminal and civil actions shall
be tried and decided jointly. (Sec. 2)
Judgment in civil action not a bar. — A final judgment rendered
in a civil action absolving the defendant from civil liability is not bar
to a criminal action against the defendant for the same act or omis-
sion subject of the civil action. (Sec. 5)
Suspension by reason of prejudicial question. — A petition
for suspension of the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation.
When the criminal action has been filed in court for trial, the peti-
tion to suspend shall be filed in the same criminal action at any time
before the prosecution rests. (Sec. 6)

Exception to the rule that extinction of the criminal action

does not extinguish civil action.
The civil action reserved by the complainant during the prosecu-
tion of the criminal action will be allowed after the termination of
the criminal proceedings, only when he has the right thereto, that is
to say, when the judgment rendered is one of conviction, or, in case
the accused is acquitted, the complaint is based on some other fact
or ground different from the criminal act. For instance, a defendant
was charged with the crime of estafa thru falsification of commercial
documents. The court acquitted him from the charge on the ground
that money had been received or retained by him pursuant to an ar-
rangement between the latter and the offended party, and that the
liability of the defendant for the return of the amount so received
arises from a civil contract, not from a criminal act, and may not be
enforced in the criminal case. (People vs. Miranda, No. Aug.
31, 1962, 5 SCRA 1067, 1068-1069)

Since the court acquitted the accused on the ground that the
money had been received or retained by appellant pursuant to an
arrangement between the latter and the offended party, in order to
conceal the transaction from the other offended party, it was improper
and unwarranted to impose a civil liability in the same criminal action.
The liability defendant for the return amount so received

881
 CIVIL LIABILITY Art. 100

arises from a civil contract, not from a criminal act, and may not be
enforced in the criminal case but in a separate civil action. (People
vs. Miranda, supra; People vs. Pantig, 51 O.G. 5627)

In People vs. 70 O.G. 4671 , where the complainant

appealed, through her private prosecutor, from the decision of the
lower court, acquitting the accused on the ground of reasonable doubt,
the Court of Appeals held:
"With respect to the award of damages in favor of the
complainant, the rule is that in a criminal case, the accused is
civilly liable only if he is found guilty. But not if he is declared
innocent. In the case before us, the accused was acquitted
crime charged. Therefore, the award of damages in favor of the
complainant should be set aside."

The ruling is erroneous for two reasons: (1) under Article 29 of

the new Civil Code, when the accused in a criminal prosecution is
acquitted on the ground that his guilt was not proved beyond reason-
able doubt, a civil action for damages for the same act or omission
may be instituted; and (2) according to Section 2(b), Rule of the
Rules of Court, extinction of the penal action does not carry with it
extinction of the civil, and in that case the lower court did not make
any declaration that the fact from which the civil may arise did not
exist.

Commencement of criminal action not a condition

precedent to the filing and prosecution of civil action
arising from crime.
The Revised Rules of Criminal Procedure permit the institution
of a civil action to demand civil responsibility arising from crime before
the institution of the criminal prosecution.
A contrary doctrine would render the right of the injured party
to indemnity a myth, and justice a farce, for the guilty party would be
able to dispose of his property. (Alba vs. 53 Phil. 380, 387)
But the civil action arising from crime cannot be instituted or pros-
ecuted in the following cases:
After the criminal action has been commenced, the separate
civil action arising therefrom cannot be instituted until final

882
Art. 100 CIVIL LIABILITY

judgment has been entered in the criminal action. (Sec. 2,

Rule Revised Rules of Criminal Procedure)
2. If the criminal action is filed after the said civil action has
already been instituted, the latter shall be suspended in
whatever stage it may be found before judgment on the
merits. The suspension shall last until final judgment is
rendered in the ciminal action. (Sec. 2[a], Rule Revised
Rules of Criminal Procedure)
The rule which requires the suspension civil case
after the criminal action has been commenced, refers to the
commencement of the criminal action in court and not to
the mere filing of a complaint with the prosecuting officer.
(Coquia, et vs. Cheong, et 103 Phil. 1170)

Judgment in the civil case already promulgated cannot be

suspended by the filing of criminal action.
The provision of Section 2 of Rule Rules of Court, that "after
a criminal action has been commenced, no civil action arising from the
same offense can be prosecuted, and the same shall be suspended, in
whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered" does not contemplate the suspension
of a judgment already promulgated in a civil action by the filing of
a criminal complaint with the prosecution attorney charging the
winning party with having introduced false documentary evidence.
(See Tanda vs. 89 Phil. 497, 504)

2 of Rule 111 applies only when the claimant in the

civil action is the offended party in the criminal action and
(2) both cases arise from the same offense.
Section 2 of Rule Rules of Court (now Revised Rules of
Criminal Procedure), requiring the suspension civil action in
view commencement of the criminal action applies only when the
claimant in the civil action is the same offended party in the criminal
action and both cases arise from the same offense or transaction. (See
Belleza vs. Huntington, 89 Phil. 689, 695) (Sec. 3[b], now Sec. 2[a], of
Rule was Sec. 1 of Rule 107

Thus, if in the civil case, the plaintiff is the accused in the crimi-
nal case and the defendant in that civil case is the offended party

883
 CIVIL LIABILITY Art. 100

in the criminal case, the counterclaim covering not only the sum of
advanced to the plaintiff to purchase jute bags but also the
sum of as damages which the defendant claims to have
sustained, and the information in the criminal case being merely
confined to the former sum the claimant (plaintiff) is not
the offended party in the criminal case and both cases do not arise
from the same transaction. (Belleza vs. Huntington, supra)

The rule that a civil action shall be suspended until final

judgment is rendered in criminal case, applies when the civil action
arises from the offense charged in the criminal case. et al. vs.
Mendoza, et XIV L.J. 528)

Sec. 2(a) of Rule applies only to civil liability arising from

crime.
Thus, when the cause of action in the civil case is based on culpa
contractual and not on the civil liability arising from the offense
involved in the criminal case, Sec. 2(a) (Sec. 1, Rule 107, then 3[b],
Rule of Rule Rules of Court, does not apply and the trial
court erred in suspending the hearing of the civil case until the final
determination criminal case. Sec. 2(a) of Rule contemplates
a case where the offended party desires to press his right to demand
indemnity from the accused in the criminal case which he may assert
either in the same criminal case or in a separate civil action. (See
Parker vs. Panlilio, 91 Phil. 1, 4)
Culpa contractual is the basis of a civil action against a trans-
portation company, for instance, for its failure to carry safely its pas-
senger to his destination. The obligation to pay for damages arises
from contract, and not from crime.

Allegations of damages in information not necessary.

The court may sentence the accused to pay the offended party,
moral and material damages, even if there is no specific allegation
of such damages in the information, provided the offended party has
not expressly waived such liability or reserved his right to have civil
damages determined in a separate civil action. (People vs. Vigo, C.A.,
52 O.G. 7629; People vs. 49 O.G. 2857; People vs. Gerodias,
51 O.G. 4614)

Under Art. 100 of this Code, when an information or complaint

is filed, even without any allegation of damages and the intention

884
Art. 100 CIVIL LIABILITY

to prove and claim them, it is to be understood that the offender is

liable for them. (People vs. G.R. No. 45738, VII L.J., p. 403;
People vs. Oraza, 83 Phil. 633, 636)

Civil liability ofthe accused extends in favor of persons not mentioned

in the information.
In criminal cases where the intervention of the aggrieved parties
is limited to being witnesses for the prosecution, the civil liability of
the accused should not extend only in favor of the person or persons
mentioned in the information. Unless the record shows that an
omitted party has waived the civil liability or has reserved the right
to file a separate civil action to recover the same, such party's right
to the civil liability arising from the offense is impliedly included in
the criminal action. (People vs. Despavellador, 53 O.G. 7297)

Attachment in criminal cases.

When the civil action is properly instituted in the criminal action
as provided in Rule the offended party may have the property of
the accused attached as security for the satisfaction of any judgment
that may be recovered from the accused in the following cases:

(a) When the accused is about to abscond the Philip-

pines;

(b) When the criminal action is based on a claim for money

or property embezzled or fraudulently misapplied or con-
verted to the use of the accused who is a public officer,
officer of a corporation, attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any
other person in a fiduciary capacity, or for a willful viola-
tion of duty;

(c) When the accused has concealed, removed, or disposed of

his personal property, or is about to do so;
(d) When the accused resides outside the Philippines. (Sec. 2,
Rule 127, Revised Rules of Criminal Procedure)

Writ of attachment, etc. may be issued in criminal cases.

Within the criminal action, with which the civil action is im-
pliedly instituted, the offended party may obtain the preliminary

885
 CIVIL LIABILITY Art. 100

writ of attachment. The court in which the civil action is pending is,
after the filing of the information in the criminal case, not ipso facto
deprived of the power to issue preliminary and auxiliary writs, such
as preliminary injunction, attachment, appointment of receiver, fix-
ing amounts of bonds, and other processes of similar nature, which
do not go into the merits of the case. Inc. vs. De Leon, 78
Phil. 449, 452-453; Babala vs. 90 Phil. 827, 828-829)
Availability of provisional remedies. — The provisional remedies
in civil actions insofar as they are applicable may be availed of in con-
nection with civil action deemed instituted with the criminal action.
(Sec. 1, Rule 127, Revised Rules of Criminal Procedure)

From the judgment of conviction in criminal case, two appeals may

be taken.
Every criminal case involves two actions: one criminal and
another civil. From a judgment of conviction, two appeals may, ac-
cordingly, be taken. The accused may seek a review of said judgment
as regards both actions. Similarly, the complainant may appeal with
respect only to the civil action. The right of either to appeal or not to
appeal is not dependent upon the other. (People vs.
105 Phil. 1287)

Remedy of offended party where fiscal asks for dismissal.

If the criminal action is dismissed by the court on motion of the
fiscal upon the ground of insufficiency of evidence, the offended party
has no right to appeal, his remedy being a separate civil action after
proper reservation is made therefor. (People vs. Lipana, 72 Phil. 166,
170)
The reason for the rule is that the continuation of the offended
party's intervention in a criminal action depends upon the continua-
tion of such action by the provincial fiscal. Once the criminal action
is dismissed by the trial court on petition of the provincial fiscal, the
offended party's right to intervene ceases, and he cannot appeal from
the order of dismissal, otherwise it be tantamount to giving
said offended party the direction and control of the criminal proceed-
ing." (People vs. Lipana, supra)
But the offended party may rightly intervene by interposing an
appeal from the order dismissing the action upon a question of law.
(People vs. Maceda, 73 Phil. 679, 681)

886
Art. 100 CIVIL LIABILITY

Right to appeal as to civil liability.

When the court found the accused guilty of criminal negligence,
but failed to enter judgment of civil liability, the private prosecutor
has a right to appeal for purposes of the civil liability of the accused.
The appellate court may remand the case to the trial court for the
latter to include in its judgment, the civil liability of the accused.
(People vs. 60 Phil. 252, 254-255)

Offended party has right to be heard during the appeal.

When a judgment convicting the accused is appealed, the of-
fended party has the right to be heard during the appeal. If the
Solicitor General asks for the reversal appealed judgment and
the acquittal of the accused, the offended party has also the right to
be heard. (People vs. Villegas, G.R. No. 45039 , IV L.J. 635)

Civil liability may be added within the 15-day period, even if the
convict has started serving sentence.
Before the expiration of the 15-day period for appealing, the
trial court can amend the judgment of conviction by adding a provi-
sion for the civil liability of the accused, and this notwithstanding
that the judgment became final because the accused had commenced
the service of his sentence. (People vs. Rodriguez, 97 Phil. 349,
351)

This ruling applies even though an appeal from the judgment of

conviction has already been perfected. (People vs. Co Ko Tong, C.A.,
51 O.G. 6337)

But after the 15-day period for appealing, the trial court cannot
amend its decision by adding thereto the civil liability. (Sese vs.
Montesa, 87 Phil. 245, 247)

An independent civil action may be brought by the injured

party during the pendency of the criminal case, provided
the right is reserved.
In the cases provided in Articles 31 , 32, 33 , 34 and 2176 of
the Civil Code, the independent civil action may be brought by the
offended party. It shall proceed independently criminal action,
and shall require only a preponderance evidence. In no case,

887
 CIVIL LIABILITY Art. 100

however, may the offended party recover damages twice for the same
act or omission charged in the criminal action. (Sec. 3, Rule
Revised Rules of Criminal Procedure)

Reservation of the right to institute separate civil action is necessary

in the following cases:
1. In any of the cases referred to in Art. 32, Civil Code.
2. In cases of defamation, fraud, and physical injuries.
The words "defamation," "fraud" and "physical injuries"
are used in their ordinary sense. The term "physical injuries"
means bodily injury, not the crime of physical injuries. It in-
cludes attempted homicide, frustrated homicide, or even death.
vs. Hon. Vicente Santiago, 97 Phil. Estafa
is included in the term "fraud."

Where fraud is the basis for both the civil and the criminal
actions, they are, according to law, to proceed independently.
In the same way that the civil suit can be tried, the criminal
prosecution has to run its course. (Rojas vs. People, No. L-22237,
May 31 , 1974, 57 SCRA 243 , 249)
When the civil action is against a member of a city or municipal
police force for refusing or failing to render aid or protection
to any person in case of danger to life or property. Such peace
officer shall be primarily liable for damages, and the city or
municipality shall be subsidiarily responsible therefor. (Art. 34,
Civil Code)
4. In an action for damages arising from fault or negligence, there
being no pre-existing contractual relation between the parties
(quasi-delict). (Art. 2176, Civil Code)
Responsibility for such fault or negligence is entirely sepa-
rate and distinct from the civil liability arising from negligence
under the Penal Code. But the plaintiff cannot recover damages
twice for the same act or omission of the defendant. (Art. 2177,
Civil Code)
The purpose of the reservation is to prevent the matter from
becoming res adjudicata. (Philippine Railway Co. vs. Jalandoni,
C.A., 40 O.G. 19, Supp. 11)

888
 Art. 100 CIVIL LIABILITY

Effect of reservation of right to intervene in prosecution

of criminal case.
Once the offended party has reserved his right to institute a
separate civil action to recover indemnity, he thereby loses his right
to intervene in the prosecution of the criminal case. Consequently,
appellant no longer had any right to move for the reconsideration of,
much less to appeal from the decision in the criminal case, insofar
as it decided the question of civil indemnity, for appellant no longer
had any standing in the case. (Tactaquin vs. Palileo, No. L-20865,
Dec. 29, 1967, 21 SCRA 1431, 1434)

Article 33 of the Civil Code has modified the provisions of Rule

107, Rules of Court. Under said article, a civil action to recover
damages for physical injuries, distinct and separate from the criminal
action and of which it shall proceed independently, may be brought by
the injured party; hence, the right to file said complaint for damages
need not even be reserved. (Alvarez vs. Manalaysay, et C.A., 57
O.G. 6629)

If the offended party in the criminal case is represented by

a private prosecutor, he cannot file an independent civil
action.
If the offended party elected to claim the civil liability in the
criminal case by intervening therein through a private prosecutor and
the court did not award any civil liability because the offended party
did not present evidence, he cannot thereafter file an independent
civil action for said civil liability. The matter is already res judicata
in the criminal case. (Roa vs. De la Cruz, 107 Phil. 8, 12-13)

When the accused pleaded guilty during the arraignment, so that the
offended party could not have expressly renounced his right to file
the civil action or reserved the same, can the latter subsequently file
a civil action for indemnity for physical and moral damages caused
by the accused?

The mere appearance of a private prosecutor in the criminal

case does not necessarily constitute such intervention on the part of
the aggrieved party as could only import an intention to press claim
for damages in said criminal case and a waiver of the right to file
a separate civil action for damages, where the accused had pleaded

889
 CIVIL LIABILITY Art. 100

guilty upon arraignment and was immediately there being

no chance for the aggrieved party to present evidence in support of
the claim for damages and to enter a reservation in the record to file
a separate civil action. (Reyes vs. Sempio-Diy, No. Jan. 29,
1986, 141 SCRA 208, 212-213)

When the final judgment in a criminal case does not state

"that the fact from which the civil might arise did not
exist," extinction of the penal action does not carry with it
extinction of the civil.
The extinction of the penal action does not carry with it extinc-
tion civil action. However, the civil action based on delict shall
be deemed extinguished if there is a finding in a final judgment in the
criminal action that the act or omission from which the civil liability
may arise did not exist. (Sec. 2[4th Rule Revised Rules of
Criminal Procedure)
When the accused in a criminal case for estafa (Art. 315, l[b],
R.P.C.) was acquitted because there was no conversion or misappro-
priation, an element of the crime, but the evidence shows that she
really received the jewelry, then the civil action is not extinguished.
(Laperal vs. 51 O.G. 1311)
But if in a criminal case for arson, the court states in its judg-
ment of acquittal that "the accused cannot in any manner be held
responsible for the fire," such declaration fits well into the exception
of the rule and actually exonerates the accused from civil liability.
(Tan vs. Standard Vacuum Oil et 91 Phil. 672, 675)
The question is whether or not appellants may still recover
damages from considering that he has been explicitly acquitted
by the trial court, upon the ground that "he has not been remiss in
his caution nor in his presence of mind trying to avoid" said "freak
accident." Held: Pursuant to the Rules of Court: "Extinction of the
penal action does not carry with it extinction of the civil, unless
the extinction proceeds from a declaration in a final that
the fact from which the civil might arise did not exist." In the case
at bar, the decision appealed from has not only acquitted Priela; but
also, declared that the collision, which resulted in the destruction of
appellants' car, had not been due to any negligence on his part. Since
appellants' civil action is predicated upon Priela's alleged negligence,
which does not exist, according to said final judgment, it follows

890
Art. 100 CIVIL LIABILITY

necessarily that his acquittal in the criminal action carries with it

the extinction of the civil responsibility arising therefrom. (Faraon
vs. Priela, G.R. No. August 2, 1968, 24 SCRA 582, 583)

Prejudicial question.
This is another exception to the rule that the criminal action
shall be decided first and that the civil action be suspended.
Prejudicial questions must be decided before any criminal
prosecution may be instituted or may proceed. (Art. 36, new Civil
Code)
A petition for the suspension of the criminal action based upon
the pendency of a prejudicial question in a civil action, may be filed
in the office of the prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal action
at any time before the prosecution rests. (Sec. 6, Rule Revised
Rules of Criminal Procedure)
For the principle on prejudicial question to apply, it is essential
that there be two cases involved, invariably a civil case and a criminal
case. If the two cases are both civil or if they are both criminal, the
principle finds no application. (Malvar vs. Cruz, 14 C.A. Rep. [2s] 395

Prejudicial question defined.

A prejudicial question is one which arises in a case, the resolu-
tion of which is a logical antecedent of the issue involved in said case,
and the cognizance of which pertains to another tribunal.
vs. No. L-22759, March 22 SCRA citing
Encyclopedia Juridical p. 228)
It is based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence
accused.

Elements of prejudicial question.

The two essential elements of a prejudicial question are: (a) the
civil action involves an issue similar or intimately related to the is-
sue raised in the criminal action; and (b) the resolution of such issue

891
 CIVIL LIABILITY Art. 100

determines whether or not the criminal action may proceed. (Sec. 5,

Rule Rules of Court)
The prejudicial question must be determinative case
before the court;
2. Jurisdiction to try said question must be lodged in another
tribunal. (People vs. 94 Phil. 357; vs. People,
57 SCRA 243)

Venue of the actions.

Spanish jurisprudence, from which the principle of prejudi-
cial question has been taken, requires that the essential element
determinative of the criminal action must be cognizable by another
court. This requirement of a different court is demanded in Spanish
jurisprudence because Spanish courts are divided according to their
jurisdictions, some courts being exclusively of civil jurisdiction, others
of criminal jurisdiction. In the Philippines where our courts are vested
with both civil and criminal jurisdiction, the principle of prejudicial
question is to be applied even if there is only one court before which
the civil action and the criminal action are to be litigated. But in this
case, the court, when exercising its jurisdiction over the civil action
for the annulment of marriage, for example, is considered as a court
distinct and different from itself when trying the criminal action for
bigamy. (Merced vs. Diez, 109 Phil. 155, 160-161)

Examples of question:

(1) There was a appeal before the Supreme Court

wherein the principal question involved was the genuine-
ness of a certain document. After the presentation of the
appellant's brief, appellee presented a motion alleging that
said document was false. The Supreme Court resolved that
when the appeal was to be determined on the merits, the
said motion would be decided. At that stage case, ap-
pellee filed with the City Fiscal a complaint for falsification
based on the same document. Was it proper for the fiscal
to proceed with the investigation criminal complaint
for falsification?

Held: No. The Fiscal must wait until the case before
the Supreme Court is decided first, because if the Supreme

892
Art. 100 CIVIL LIABILITY

Court should decide that the document is genuine and has

not been substituted, such finding would be contrary to the
stand taken by the Fiscal. (De Leon vs. Mabanag, 70 Phil.
202)
(2) The pendency of a petition for judicial declaration of nullity
of the first marriage is not a prejudicial question in an
action for bigamy. The subsequent judicial declaration of
the nullity of the first marriage is immaterial because prior
to the declaration of nullity, the crime had already been
consummated. (Mercado vs. Tan, G.R. No. 137110, Aug.
1, 2000)
A case for annulment of marriage is a prejudicial
question to a bigamy case if it is proved that the accused's
consent to such marriage was obtained by means of duress,
violence and intimidation in order to establish that his act
in the subsequent marriage was an involuntary one and as
such the same cannot be the basis for conviction. (Donato
vs. Luna, No. L-53642, April
citing Landicho vs. Relova, 22 SCRA 731)

When civil action not a prejudicial question. — If it

is the second wife who filed the civil action against the
accused charged with bigamy, alleging that the accused
by means of force and threats forced her to marry him,
the accused cannot properly claim that the civil action is
a prejudicial question, because even if the allegation in
the civil case is true, the fact remains that the accused
contracted the second marriage voluntarily. If the second
wife were the one accused of bigamy, she could perhaps
raise force or intimidation as a defense in the charge of
bigamy, because on her part there was no consent to the
marriage; but not the party, who used the force or intimida-
tion. The latter may not use his own malfeasance to defeat
the action based on his criminal act. (People vs.
94 Phil. 357, 360; See also Donato vs. Luna, No. L-53642,
April 15, 1988, 160 SCRA 441 , 447 where the complaint
for annulment was grounded on deceit.)

A civil case was filed for unpaid wages claimed by a number

of laborers. In that case, the obligation of defendants to
pay wages was in issue. There was then a criminal action

893
 CIVIL LIABILITY Art. 100

pending against one defendants in the civil case for

protracted delay in the payment of wages as penalized by
Com. Act No. 303. The defendants asked for the suspension
civil action until the criminal case be finally disposed
of. Must the court order the suspension of the trial of the
civil action?

No. The obligation to pay wages is a prejudicial ques-

tion, for there can be no extended delay in the payment
of such obligations unless the obligation be first proved.
(Aleria vs. Mendoza, 83 Phil. 427, 429)

Compare the above case with the following case.

A and B were accused of violation of the Copyright Law.
Later, A and B brought an action for the cancellation of copy-
rights granted to the compl ain ant. Is the action for cancellation
of the copyrights a prejudicial qu esti on which must be decided
first? No, because until cancelled, the copyrights are presumed
to have been duly granted and issued. vs. Tancinco, 96
Phil. 459 , 460 )

In the case Aleria vs. Mendoza, supra, the ruling is consistent

with the presumption of innocence on the part of the accused. In the
case of Ocampo vs. Tancinco, the ruling is based on the presumption
of regularity in the granting and issuance of the copyrights.

When the question is not determinative of the guilt or

inno- cence of the parties charged with estafa, it is not a
prejudicial question.
The alleged prejudicial question is not determinative of the
guilt or innocence of the parties charged with estafa. Even if the
execution receipt in the civil case was vitiated by fraud, duress
or intimidation, the guilt of the accused could still be established
by other evidence by showing that they actually received from the
complainant the sum of with which to buy a fishing boat
and that instead of doing so, they misappropriated the money and
refused to return it to him upon demand. A claim to this effect is
a matter of defense to be interposed by the party charged in the
criminal proceeding. (Jimenez vs. Averia, No. L-22759, March 29,
1968, 22 SCRA 1380, 1382)

894
 Art. 101 CIVIL LIABILITY IN CERTAIN CASES

An acquittal in a criminal case is not evidence of

innocence in subsequent civil action based upon the
alleged criminal act.
In a civil case, the Solicitor General moved for the cancellation of
the certificate of naturalization issued in favor petitioner, upon
the ground that it was secured illegally and fraudulently. Among the
acts of misrepresentation and misconduct imputed to the petitioner
was the alleged maltreatment by him of Mrs. Joist. It appeared that
the Municipal Court which tried the maltreatment case acquitted the
defendant (petitioner). The court trying the civil case did not take
into account the evidence introduced in that civil case in support of
the charge of maltreatment.
It was held that the trial court erred in not taking into account
the evidence introduced in the civil case in support of the charge of
maltreatment. The Supreme Court stated that the great weight of
authority supports the rule that a judgment acquittal is not effec-
tive under the doctrine of res judicata in later civil proceedings, and
does not constitute a bar to a subsequent civil action involving the
same subject-matter. An acquittal in a criminal prosecution does not
constitute evidence of innocence in subsequent civil action based upon
the alleged criminal act. (Republic vs. Asaad, 51 O.G. 703)
But where the state is a party to the civil action, the issues
determined by the conviction of the defendant are concluded in the
civil action. (See the citation in the same case of Republic vs. Asaad.)

When to plead prejudicial question.

A petition for suspension criminal action based upon the
pendency of a prejudicial question in a civil action may be filed in
the office prosecutor or the court conducting the preliminary
investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal action
at any time before the prosecution rests. (Sec. 6, Rule Revised
Rules of Criminal Procedure)

Art. 101 . Rules regarding civil liability in certain cases. — Th e

e x e m p t i o n fro m c r i m i n a l l i ab i l i t y e s t a b l i s h e d i n s u b d i v i s i o n
s 1 , 2 , 3 , 5 , an d 6 of Arti cl e 12 an d in s u b d i v i s i o n 4 of Arti cl e

895
 CIVIL LIABILITY IN CERTAIN CASES Art. 101

o f thi s Cod e doe s no t i n c l u d e e x e m p t i o n fro m civil li ab il i ty,

w h i c h shall b e e n f o r c e d su b j e c t t o th e f o l l o w i n g ru l es :
First: In c a s e s of s u b d i v i s i o n s 1 , 2 , an d 3 of Arti cl e 12,
th e civil l i ab i l i ty for act s c o m m i t t e d b y a n i m b e c i l e o r i n s a n e
p e rs on , an d b y a p e r s o n u n d e r ni n e y e a r s o f age , o r ove r n in
e bu t u n d e r fifteen y e a r s o f age , wh o ha s a ct e d w i t h o u t d i s ce rn
- men t , sh all d e v o l v e u p o n t h o s e h a v i n g su c h a p e r s o n u n d e r
th ei r l egal a u t h o r i t y o r c o n t r o l , u n l e s s i t a p p e a r s tha t th er e
wa s n o fault o r n e g l i g e n c e o n th ei r part.

S h o u l d t h e r e b e n o p e r s o n h a v i n g su c h i n s a n e , i m b e c i l e
, o r mi n o r u n d e r hi s a u t h o r i t y , l ega l g u a r d i a n s h i p , o r
control,
o r i f su c h p e r s o n b e i n s o l v e n t , sai d i n s a n e , i m b e c i l e , o r m i n o
r shall r e s p o n d wi t h th ei r ow n p r o p e r t y , e x c e p t i n g p r o p e r t y
e x e m p t fro m e x e c u t i o n , i n a c c o r d a n c e w i t h th e civil law .
Second: In c a s e s f a l l i n g w i t h i n s u b d i v i s i o n 4 of Arti cl e
th e p e r s o n s for w h o s e b en efi t th e h a r m ha s b e e n p r e v e n t e d
shall b e ci vil l y l i ab l e i n p r o p o r t i o n t o th e b en efi t w h i c h th e y
ma y h av e r e c e i v e d .
Th e co u r t s shal l d e t e r m i n e , i n th ei r s o u n d d i s c r e t i o n , th
e p r o p o r t i o n a t e a m o u n t for w h i c h e a c h on e shal l b e li abl e.
Whe n th e r e s p e c t i v e s h a r e s c a n n o t b e e q u i t a b l y deter-
mi n ed , eve n a p p r o x i m a t e l y , o r w h e n th e l i ab i l i ty als o a t t a c h e
s t o th e G o v e r n m e n t , o r t o th e m a j o r i t y o f th e i n h a b i t a n t s
o f th e town , and , i n all e v e n t s , w h e n e v e r th e d a m a g e ha s b ee
n c a u s e d wi t h th e c o n s e n t o f th e a u t h o r i t i e s o r th ei r ag en ts ,
i n d e m n i f i c a t i o n sh al l b e m ad e i n th e m a n n e r p r e s c r i b e d b y
sp eci al l aw s o r r e g u l a t i o n s .

Third: In c as e s fal l in g w i t h i n s u b d i v i s i o n s 5 an d 6 of Arti-

cle 12, th e p e r s o n s u s i n g v i o l e n c e o r c a u s i n g th e fear shall b e
p r i m ar i l y l i ab l e an d s e c o n d a r i l y , or, i f t h e r e b e n o suc h per-
son s, th os e d oi n g th e ac t shall b e liab le, s a vi n g a l w a y s t o th e
latter tha t part o f thei r p r o p e r t y e x e m p t from e x e c u t i o n .

Civil liability of persons exempt from criminal liability.

Exemption from criminal liability does not include exemption
from civil liability.
896
Art. 101 CIVIL LIABILITY IN CERTAIN CASES

Exceptions :
There is no civil liability in paragraph 4 of Article 12 which
provides for injury caused by mere accident.
2. There is no civil liability in paragraph 7 of Article 12 which
provides for failure to perform an act required by law when
prevented by some lawful or insuperable cause.

Note: The exemption from criminal liability does not include

exemption from civil liability in the cases provided for
in paragraphs 1, 2, 3, 5 and 6 of Article 12. Paragraphs
4 and 7 are not mentioned. Therefore, there is also
exemption from civil liability in the cases provided for
in paragraphs 4 and 7 of Article
The ruling in People vs. Vitug, 8 Rep. 905, that
exemption from criminal liability under paragraph
4, Article 12, Revised Penal Code, does not include
exemption from civil liability, is erroneous.

Who are civilly liable for acts of insane or minor exempt from
criminal liability?
The civil liability for acts committed by an imbecile or insane or
minor exempt from criminal liability shall devolve upon the persons
having legal authority or control over them, if the latter are at fault
or negligent.
If there is no fault or negligence on their part, or even if at fault
or negligent but insolvent, or should there be no person having such
authority or control, the insane, imbecile, or such minor shall respond
with their own property not exempt from execution.
The persons having the in san e or minor under their legal
authority or control are primarily liable to pay the civil liability for
acts committed by such insane or minor.
But they can avoid civil liability by pleading and proving the
defense that there was no fault or negligence on their part.
Under Article 101 Revised Penal Code, a father is made
civilly liable for the acts committed by his son if the latter is an
imbecile, an insane, under 9 years of age, or over 9 but under 15
years of age, who acts without discernment, unless it appears that

897
 CIVIL LIABILITY IN CERTAIN CASES Art. 101

there is no fault or negligence on his part. This is because a son who

commits the act under any of those conditions is by law exempt from
criminal liability. (Articles 12, 1, 2 and 3, Revised Penal Code) The
idea is not to leave the act entirely unpunished but to attach certain
civil liability to the person who has the delinquent minor under his
legal authority or control. (Paleyan vs. No. L-22253, July
40 SCRA 132, 135, citing vs. 107 Phil. 748)

Civil liability for acts of a minor over years of age who

acts with discernment.
A minor over 15 years of age who acts with discernment is not
exempt from criminal liability, hence, the silence of the Revised
Penal Code as to the subsidiary liability of his parents should he
be convicted. The particular law that governs is Article 2180 of the
Civil Code, the pertinent portion of which provides: "The father and,
in case of his death or incapacity, the mother, are responsible for
damages caused by the minor children who live in their company."
To hold that this provision does not apply because it only covers
obligations which arise from quasi-delicts and not obligations which
arise from criminal offenses, would result in the absurdity that while
for an act where mere negligence intervenes the father or mother
may stand subsidiarily liable for the damage caused by his or her
son, no liability would attach if the damage is caused with criminal
intent. The void that apparently exists in the Revised Penal Code
is subserved by this particular provision Civil Code. (Paleyan
vs. Bangkili, supra)

Note: Art. 201 of the Child and Youth Welfare Code which
provides that the civil liability for acts committed by a youthful
offender (a child over 9 but under 18 years of age at the time of the
commission of the offense) shall devolve upon the offender's father
and, in case of his death or incapacity, upon the mother, or in case of
her death or incapacity, upon the guardian, now governs with respect
to the subsidiary liability of parents for the civil liability of a minor
over 15 years of age who acts with discernment.

The provisions Civil Code.

The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children who
live in their company.

898
Art. 101 CIVIL LIABILITY IN CERTAIN CASES

Guardians are liable for damages caused by the minors or in-

capacitated persons who are under their authority and live in their
company.
The responsibility treated in this article shall cease when the
persons herein mentioned prove that they observed all the diligence
of a good father of a family to prevent damage. (Art. 2180, 2nd and
last Civil Code)
If the minor or insane person causing damage has no parents
or guardian, the minor or insane person shall be answerable with
his own property in an action against him where a guardian ad litem
shall be appointed. (Art. 2182, Civil Code)

The discharge of a child in with the law does

not obliterate his civil liability.
The Juvenile Justice and Welfare Act of 2006
"SECTION 39. Discharge ofthe Child in Conflict with the
Law. - Upon the recommendation of the social worker who has
custody child, the court shall dismiss the case against the
child whose sentence has been suspended and against whom
disposition measures have been issued, and shall order the
final discharge of the child if it finds that the objective of the
disposition measures have been fulfilled.
"The discharge of the child in conflict with the law shall
not affect the civil liability resulting from the commission
offense, which shall be enforced in accordance with law."

Persons civilly liable for acts committed by youthful offenders.

The Child and Youth Welfare Code provides:

"ART. 201. Civil Liability Youthful Offenders. - The civil

liability for acts committed by a youthful offender shall devolve
upon the offender's father and, in case of his death or incapacity,
upon the mother, or in case of her death or incapacity, upon the
guardian. Civil liability may also be voluntarily assumed by a
relative or family friend of the youthful offender."

Duty of court trying an insane.

In a fit of insanity, the accused attacked a woman with a
and instantly killed her.

899
 SUBSIDIARY CIVIL LIABILITY OF Art. 102
INNKEEPERS, ETC.

In declaring the accused not guilty because he is exempt from

criminal liability by reason of has the court the authority
to order him to indemnify the heirs of the deceased?
Courts, in rendering judgment in a criminal case prosecuted
against an insane, even when they hold the accused exempt from
criminal liability, must fix the civil liability of the person charged
with the watching over and caring for him or the liability of the de-
mented person himself with his property. (U.S. vs. Baggay, 20 Phil.
142, 146-147)
In the case of U.S. vs. Baggay, supra, the defendant was acquit-
ted of murder because he was insane when he committed the act, but
he was sentenced to indemnify the heirs of the deceased in the sum
of
This ruling applies also to other cases under this article.

Who are civilly liable for acts committed by persons acting

under irresistible force or uncontrollable fear?
The persons using violence or causing the fear are primarily
liable.
If there be no such persons, those doing the act shall be liable
secondarily.

Civil liability of persons acting under justifying circum-

stances.
There is no civil liability in justifying circumstances.

Exception :
In paragraph 4 of Article 11, there is civil liability, but the
person civilly liable is the one benefited by the act which causes
damage to another. (See Tan vs. Standard Vacuum Oil Co., 91 Phil.
672.)

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

and proprietors of establishments. — In d efaul t of th e p e r s o n s
cri mi n al l y liable, i n n k e e p e r s , t a v e r n k e e p e r s , an d an y oth e r
p er so n s or c o r p o r a t i o n s sh all be ci vil ly liable for cri me s

900
 Art. 102 SUBSIDIARY CIVIL LIABILITY OF
INNKEEPERS, ETC.

in thei r e s t a b l i s h m e n t s , in all c as e s w h e r e a v i o l a t i o n
o f m u n i c i p a l o r d i n a n c e s o r som e g e n e r a l o r sp e c i a l pol i c e
r e g u l a t i o n s shall h av e b e e n c o m m i t t e d b y th e m o r th ei r em-
p l oy ee s .
I n n k e e p e r s ar e als o s u b s i d i a r i l y l i a b l e for th e r e s t i t u -
tio n o f g o o d s t a k e n b y r o b b e r y o r th ef t w i t h i n t h e i r h o u s e s
fro m g u e s t s l o d g i n g t h e r e i n , o r fo r th e p a y m e n t o f th e
v a l u e th er eo f , p r o v i d e d th a t s u c h g u e s t s sh al l h a v e noti -
fied i n a d v a n c e th e i n n k e e p e r h i m s e l f , o r th e p e r s o n rep -
r e s e n t i n g him , o f th e d e p o s i t o f su c h g o o d s w i t h i n th e inn
; an d sh al l f u r t h e r m o r e h a v e f o l l o w e d th e d i r e c t i o n s w h i c h
s u c h i n n k e e p e r o r hi s r e p r e s e n t a t i v e ma y h a v e g i v e n t h e m
w i t h r e s p e c t t o th e car e o f an d v i g i l a n c e o v e r s u c h g o o d s
. N o l i a b i l i t y sh al l a t t a c h i n c a s e o f r o b b e r y w i t h v i o l e n c e
a g a i n s t o r i n t i m i d a t i o n o f p e r s o n s u n l e s s c o m m i t t e d b y th e
innkeeper' s employees .

Elements under paragraph

That the innkeeper, or proprietor of establish-
ment or his employee committed a violation of municipal
ordinance or some general or special police regulation.
2. That a crime is committed in such inn, tavern or establish-
ment.
3. That the person criminally liable is insolvent.
When all the above e l e me n t s are present, the innkeeper,
tavernkeeper or any other person or corporation is civilly liable
for the crime committed in his establishment. This is known as
subsidiary civil liability of innkeepers, tavernkeepers or proprietors
of establishments.

Example:

If homicide is committed in an inn or bar on a Sunday which,

according to the ordinances, should be closed, since the innkeeper in
this case violates the ordinances by opening his establishment for
business on a prohibited day, he shall be subsidiarily liable for the
indemnity or civil liability to the heirs deceased. (Guevara)

901
 SUBSIDIARY CIVIL LIABILITY OF
Art. 103
OTHER PERSONS

In such case, the innkeeper or owner of the establishment is

civilly liable for such crime committed therein, if the offender is in-
solvent.

Elements under paragraph 2:

The guests notified in advance the innkeeper or the person
representing him of the deposit of their goods within the
inn or house.
2. The guests followed the directions innkeeper or his
representative with respect to the care of and vigilance
over such goods.
3. Such goods of the guests lodging therein were taken by
robbery with force upon things or theft committed within
the inn or house.
When all the above elements are present, the innkeeper is
subsidiarily liable.
No liability shall attach in case of robbery with violence against
or intimidation of persons, unless committed by the innkeeper's
employees.

It is not necessary that the effects of the guest be actually

delivered to innkeeper.
In a case where the owner of a hotel disclaimed liability because
plaintiff did not deposit his properties with the manager despite a
notice to that effect posted in the hotel, it was held that actual delivery
to him or his employee of the effects guest is not necessary; it is
enough that they were within the inn. (De Santos vs. Khey,
C.A., 58 O.G. 7693, citing 29 Am. Jur. 89-90)

Art. 103. Subsidiary civil liability of other persons. — Th e sub-

sidiary liability e s t a b l i s h e d i n th e nex t p r e c e d i n g article shall
also appl y t o e m p l o y e r s , t e a c h e r s , p e r s o n s , an d c o r p o r a t i o n s
e n g a g e d i n an y kin d o f i n d u s t r y for f e l o n i e s c o m m i t t e d b y
thei r se rv an ts , pu pi l s , w o r k m e n , a p p r e n t i c e s , o r e m p l o y e e s
in th e d i s c h a r g e of thei r d u ti es .

902
Art. 103 SUBSIDIARY CIVIL LIABILITY OF
OTHER PERSONS

Elements:
The employer, teacher, person or corporation is engaged
in any kind of industry.
2. Any of their servants, pupils, workmen, apprentices or
employees commits a felony while in the discharge of his
duties.
3. The said employee is insolvent and has not satisfied his
civil liability.
In order that an employer may be held subsidiarily liable for the
employee's civil liability in the criminal action, it should be shown:
(1) that the employer is engaged in any kind of industry, (2) that the
employee committed the offense in the discharge of his duties and (3)
that he is insolvent. The subsidiary liability of the employer, however,
arises only after conviction employee in the action.
vs. Doroja, G.R. No. 84516, Dec. 5, 1989, 180 SCRA 1, 7, citing
Marketing Corp. vs. Bolinao Sec. & Inc., 117 SCRA 15)

In this case, when all these elements are present, the employer
or teacher is subsidiarily liable.

Example:

A workman of a construction company stole some things while

he was making minor repairs in a house, and after being prosecuted
was found guilty by the court. The workman cannot satisfy his own
civil liability.

Under such circumstances, the company is liable subsidiarily

for the restitution of the things or for the payment of their value.
(Guevara)

Employer must be engaged in industry.

Meaning of "industry."

An enterprise not conducted as a means of livelihood or for profit

does not come within the meaning of the term "business," "trade,"
or "industry." vs. Foreign Mission Sisters, C.A., 38 O.G.
1594)

"Industry" is any department or branch of art, occupation or

business; especially, one which employs so much labor and capital

903
 SUBSIDIARY CIVIL LIABILITY OF Art. 103
OTHER PERSONS

and is a distinct branch of trade. Hence, a person who owns a truck

and uses it in the transportation of his own products is engaged in
industry. (Telleria vs. Garcia, C.A., 40 O.G., 12, 115)

Hospital not engaged in industry; nurses not servants.

A hospital is not engaged in industry; hence, not subsidiarily
liable for acts of nurses. Nurses, in treating a patient, are not acting
as servants of the hospitals, because they are employed to carry out
the orders of the physicians, to whose authority they are subject.
(Clemente vs. Foreign Mission Sisters, supra)

Private persons without business or industry, not subsidiarily

liable.
The car driven by S was bumped by the car of V driven by
the latter's chauffeur. The chauffeur who was found guilty was
insolvent.
Is V subsidiarily liable?
No, because V is a private person who has no business or industry
and uses his automobile for private purposes. V does not fall under
Art. 103 Revised Penal Code. (Steinmetz vs. Valdez, 72 Phil.
92, 93)

The felony must be committed by the servant or employee

of the defendant in the civil case.
Thus, where the driver, who drove a jeepney without the
owner's consent, was arrested and prosecuted for, and found guilty
of, homicide through reckless imprudence, the owner of the jeepney is
not subsidiarily liable for the indemnity adjudged against the driver.
vs. Sabinosa, C.A., 55 O.G. 3846)

Decision convicting an employee is binding upon the

employer with respect to the civil liability and its amount.
Under Article 103 of the Revised Penal Code, employers
are subsidiarily liable for the adjudicated civil liabilities of their
employees in the event of the latter's insolvency. The provisions of
the Revised Penal Code on subsidiary liability — Articles 102 and
103 — are deemed written into the judgments in the cases to which
they are applicable. (Alvarez v. CA, 158 SCRA 57, February

904
Art 103 SUBSIDIARY CIVIL LIABILITY OF
OTHER PERSONS

Thus, in the dispositive portion of its decision, the trial court need
not expressly pronounce the subsidiary liability of the employer.
The decision convicting an employee in a criminal case is binding
and conclusive upon the employer not only with regard to the former's
civil liability, but also with regard to its amount. The liability of an
employer cf.nnot be separated from that of the employee. (Yusay v.
164 SCRA 494, August 18, Pajarito v. 87 SCRA
275, December 14, 1978)
Before the employers' subsidiary liability is exacted, however,
there must be adequate evidence establishing that (1) they are
indeed the employers of the convicted employees; (2) that the
former are engaged in some kind of industry; (3) that the crime was
committed by the employees in the discharge of their duties; and (4)
that the execution against the latter has not been satisfied due to
insolvency.

The resolution of these issues need not be done in a separate civil

action. But the determination must be based on the evidence that the
offended party and the employer may fully and freely present. Such
determination may be done in the same criminal action in which the
employee's liability, criminal and civil, has been pronounced (Ozoa v.
Vda de Madula, 156 SCRA 779, December and in a hearing
set for that precise purpose, with due notice to the employer, as part
of the proceedings for the execution of the judgment. (Phil. Rabbit
Bus Lines vs. People, 147703, April 14, 2004)

Enforcement of civil liability is upon a motion for

subsidiary writ of execution.
The subsidiary liability may be enforced only upon a motion for
subsidiary writ of execution against the employer and upon proof that
the employee is insolvent. (Basilio v. Court of Appeals, 385 Phil. 21

"While in the discharge of his duties."

The law makes the employer subsidiarily liable for the civil
liability arising from a crime committed by an employee the
discharge of his This subsidiary liability does not arise from
any and all offenses that the employee may commit, but limited to
those which he shall be found guilty of in the discharge of his duties.

905
 SUBSIDIARY CIVIL LIABILITY OF
Art. 103
OTHER PERSONS

The law does not say that the crime of the employee must be the
one committed "while in the discharge of his duties." It could not
be contemplated that an employer will be held responsible for any
misdeed that his employee could have done while performing his
assigned tasks. Thus, it is neither just nor logical that, if a security
guard committed robbery in a neighboring establishment near the one
he is assigned to guard, or raped a woman passerby in the course of
his tour of duty, his employer should be made subsidiarily liable for
his said misdeed. In such circumstances, it cannot be said that the
crime was committed by the employee "in the discharge of his
(Baza Marketing Corporation vs. Bolinao Security and Investigation
Service, Inc., No. L-32383, Sept. 30, 1982, 117 SCRA 156, 163)

The fact that the owner of the car was not riding therein at the
time of the accident and did not know that the chauffeur had taken
the car, clearly shows that the accident did not occur in the course of
the performance duties for which said chauffeur had been hired.
His service is confined to driving his master's car as the latter ordered
him. The owner of the car was not subsidiarily liable. (Marquez vs.
Castillo, 68 Phil. 568, 571)

The subsidiary liability of the employer is not determined

in the criminal case against the employee. Reservation not
necessary.
The subsidiary liability of the master or employer provided for
in Article 103 of the Revised Penal Code is not litigated in connection
with the criminal prosecution employee, pupil, etc. Reservation
of the right to bring action by the injured party against the master
or employer is not necessary. The rule of res adjudicata cannot be
invoked for or against one who was not a party to the cause in which
the former judgment was rendered. (Phil. Railway Co. vs. Jalandoni,
C.A., 40 O.G. 19, Supp. 11, 19)

Subsidiary liability of employers, etc., "for felonies

committed by their x x x employees."
The word "committed," as used in Article 103, implies that the
employee was convicted of the felony with which he was charged in
the criminal case.
There can be no automatic subsidiary liability of defendant-
employer under Article 103 of the Revised Penal Code, where his

906
Art. 103 SUBSIDIARY CIVIL LIABILITY OF
OTHER PERSONS

employee has not been previously criminally convicted. There having

been no criminal conviction of the employee wherein his civil liability
was determined and fixed, no subsidiary liability under Article 103
can be claimed against defendant-employer. vs. No.
L-26730, April 27, 1972, 44 SCRA 464, 467)

Employer has the right to take part in the defense of his

employee.
It is true that an employer is not a party to the criminal case
instituted against his employee, but he has subsidiary liability
imposed upon him by law. It is his concern to see to it that his interest
be protected in the criminal case by taking virtual participation in the
defense of his employee. He cannot leave him to his own fate because
his failure is also his. (Miranda vs. Malate Garage & Taxicab, Inc.,
99 Phil. 670, 675)

Certified copy of decision sufficient to prove offense

committed by servant or employee.
Judgment of conviction of servant or employee in the absence
of any collusion between the defendant and the offended party binds
the persons subsidiarily liable. The plaintiff can rely solely on the
judgment of conviction.

Common sense dictates that a of guilt in a criminal case, in

which proof beyond reasonable doubt is necessary, should not be nullified
in a subsequent civil action requiring only a preponderance of evidence
to support a judgment. (Martinez vs. 81 Phil. 1, 3)

Employer is subsidiarily liable for the full amount against

employee.
R was the driver of a Halili B was the driver of a
The two vehicles collided through the reckless imprudence of both
drivers, causing serious physical injuries on G. R and B were convicted
of serious physical injuries through reckless imprudence and were
sentenced solidarily to pay an indemnity of to G. As R and
B could not pay the indemnity by reason of insolvency, G sued the
owner of the bus.

Held: Halili was liable for the full amount of and not
merely 1/2 thereof, but without prejudice to the right of action against

907
 SUBSIDIARY CIVIL LIABILITY OF Art. 103
OTHER PERSONS

B for contribution. (Gonzales vs. Halili, G.R. No. Oct. 31,

1958)

No defense of diligence of a good father of a family.

It will be seen that neither in Art. 103 nor in any other article
of the Revised Penal Code, is it provided that the employment of
the diligence to be expected of a good father of a family in the selec-
tion of his employees will exempt the parties secondarily liable for
damages, as is provided in Art. 1903 in connection with Art. 1902
(now Arts. 2176 and 2180) Civil Code, which treat of liabilities
arising from acts or omissions not punishable by law. vs.
Meralco, 55 Phil. 75, 78-79; vs. Bus 72 Phil.
94, 97)

Art. is applicable to violations of Revised Motor

Vehicle Law.
The defendant is subsidiarily liable for indemnities even if its
driver was convicted under the Revised Motor Vehicle Law, because
Art. 103 of the Code is applicable by virtue of its Art. 10. (Copiaco vs.
Luzon Brokerage, 66 Phil. 184, 190-191)

Arts. and Revised Penal Code are not

repealed by Art. of the new Civil Code.
Art. 2177 of the Civil Code expressly recognizes civil liabilities
arising from negligence under the Penal Code, only that it provides
that the plaintiff cannot recover damages twice of the same act or
omission defendant. (Manalo vs. Robles Trans. Co., Inc., 52
O.G. 5797)

The provisions Civil Code.

The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any busi-
ness or industry.

908
Art. 103 SUBSIDIARY CIVIL LIABILITY OF
OTHER PERSONS

The State is responsible in like manner when it acts through

a special agent; but not when the damage has been caused by the
official to whom the task done properly pertains, in which case what
is provided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and students or
apprentices, so long as they remain in their custody. (Art. 2180, Civil
Code)
In motor vehicle mishaps, the owner is solidarily liable with his
driver, if the former, who was in the vehicle, could have, by the use
of due diligence, prevented the misfortune. It is disputably presumed
that a driver was negligent, if he had been found guilty of reckless
driving or violating traffic regulations at least twice within the next
preceding two months.

If the owner was not in the motor vehicle, the provisions of

Article 2180 are applicable. (Art. 2184, Civil Code)
Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time of
the mishap, he was violating any traffic regulation. (Art. 2185, Civil
Code)

The responsibility of two or more persons who are liable for a

quasi-delict is solidary. (Art. 2194 , Civil Code)

Persons civilly liable in the absence of those criminally

liable, the civil responsibility being a necessary part of the
criminal liability.
1. Innkeeper, tavernkeeper, and any other person or corporation
who committed violation of mun icipal ordinance or some
general or special police regu l ati on , and the person who
committed a crime in his estab l i sh men t cannot be found or
is insolvent.

2. Innkeeper, for robbery with force upon things or theft of goods

of guests lodging therein, provided the guests notified the
innkeeper in advance of the deposit of their goods within the inn,
and provided further that such guests followed the directions
of the innkeeper with respect to the care of and vigilance over
such goods.

909
 SUBSIDIARY CIVIL LIABILITY OF
103
OTHER PERSONS

3. The employer who is engaged in any kind of industry, for the

crime committed by his employee while in the discharge of his
duties.
Those having an imbecile or insane person or minor exempt from
criminal liability under their legal authority or control, if they
are at fault or negligent, for acts committed by the imbecile,
insane or minor.
5. Persons who acted under the compulsion of irresistible force or
under the impulse of uncontrollable fear are civilly liable if the
person who used violence or who caused the fear is insolvent or
cannot be found.

910
 Chapter Two
WHAT CIVIL LIABILITY INCLUDES

Art. 104. What is included in civil liability. — Th e ci vil liabil-

ity e s t a b l i s h e d in Ar ti cl e s 100, 101 , 102, an d 103 of thi s Cod e
includes :
1. Restitution ;
2. Reparatio n o f damag e caused ;
3. I n d e m n i f i c a t i o n for c o n s e q u e n t i a l d a m a g e s .

Civil liability in criminal cases.

The first remedy granted by law is restitution of the thing taken
away by the offender; if restitution cannot be made by the offender
(Art. 105), or by his heirs (Art. 108), the law allows the offended party
reparation. (Art. 106; People vs. Mostasesa, 94 Phil. 243 , 244) In
either case, indemnity for consequential damages may be required.
(Art. 107)

There are crimes where there is no civil liability.

There are crimes where only one or none at all of these civil
obligations is possible.

in theft or robbery — when the property taken is recovered

— only reparation, if any damage, will be allowed.
In assault upon a person in authority which caused no physical
injuries, not one of them is possible.
In some crimes, the three civil obligations in Art. 104 may
be declared and enforced. Thus, for the crime of occupation of real
property in Art. 312, the defendant may be required:
(a) to restore the real property occupied
(b) to repair the damages caused to it (reparation); and
(c) to indemnify the offended party for all the consequential

910
 WHAT CIVIL LIABILITY INCLUDES Art. 104

damages he has sustained due to the commission of the

crime.

E x a m p l e s of —
1. Restitution — in theft the culprit is duty-bound to return
the property stolen.
2. Reparation — in case of inability to return the property
stolen, the culprit must pay the value of the property stolen;
in case of physical injuries, the reparation of the damage
caused would consist in the payment of hospital bills and
doctor's fees to the offended party.
3. Indemnifications for consequential damages — the loss of
his salary or earning.

When property taken away is not recovered, the court

must order the accused to restore it to its owner or, as an
alterna- tive, to pay its just value.
When in due judgment of conviction the court did not grant the
accused the alternative to return the thing which he had appropriated
or to pay its just value, the court is in error. (People vs. 73
Phil. 429, 430)

Civil liabilities distinguished from pecuniary liabilities.

Art. 104, providing for three forms of civil liabilities, and Art.
38, providing for the order of payment of pecuniary liabilities, may
be distinguished, as follows:
Both include (a) the reparation of the damage caused, and
(b) indemnification for consequential damages;
2. While civil liabilities include restitution, pecuniary liabili-
ties do not include restitution, because the latter refer to
liabilities to be paid out of the property of the offender. In
restitution, there is nothing to pay in terms of money, as
the property unlawfully taken is returned.
3. Pecuniary liabilities include (a) fine, and (b) the costs of
the proceedings. Civil liabilities do not include them.

911
 Art. 105 RESTITUTION

Art. 105. Restitution — How made. — Th e r e s t i t u t i o n of th e

th i n g itself mu s t b e mad e w h e n e v e r p os si b l e , w i t h a l l o w a n c e
for an y d e t e r i o r a t i o n o r d i m i n u t i o n o f v al u e a s d e t e r m i n e d
by th e cou rt.
Th e th i n g i tsel f shall b e r e s t o r e d , eve n t h o u g h i t b e fou n
d in th e p o s s e s s i o n of a thir d p e r s o n wh o ha s a c q u i r e d i t by
law- ful m e a n s , s a v i n g t o th e l atte r hi s a c t i o n a g a i n s t th e
p r op e r p e r s o n wh o ma y b e l i ab l e t o him .
Thi s p r o v i s i o n i s no t a p p l i c a b l e i n c a s e s i n w h i c h th e
t h i n g ha s b e e n a c q u i r e d b y th e thi r d p e r s o n i n th e m a n n e
r an d u n d e r th e r e q u i r e m e n t s w h i c h , b y law , ba r a n a c t i o n
for it s r e c o v e r y .

"The restitution of the thing itself must be made whenever

possible."
The convict cannot, by way of restitution, give to the offended
party a similar thing of the same amount, kind or species and
quality.
Appellants claim that since the property (tobacco) involved in
the criminal case is a fungible thing and that, in accordance with Art.
1953 of the Civil Code, the obligation of one who receives money or
fungible things is to return to the creditor the same amount of the
thing owed, of the same kind or species and quality, they should be
allowed to return only the equivalent.

Held: The civil liability appellants is not governed by the

Civil Code, but by Articles 100-111 Penal Code. The sentence
should be for the return of the very thing taken (restitution), or, if it
cannot be done, for the payment of its value (reparation). The purpose
of the law is to place the offended party as much as possible in the
same condition as he was before the offense was committed against
him. (People vs. Mostasesa, 94 Phil. 243 , 244)
Is Art. properly applied to the forfeiture of the house built
with the money malversed by a public officer?
In the case of Garcia vs. Bituin, CA-G.R. No. Sept. 24,
1958, the Court of Appeals applied Art. 105 to the forfeiture of the
house built with the money malversed by a public officer.

912
 RESTITUTION Art. 105

"With allowance for any deterioration or diminution of

value."
Thus, if the property stolen while in the possession thief
suffers deterioration due to his fault, the court will assess the amount
of the deterioration and, in addition to the return of the property,
the culprit will be ordered to pay such amount representing the
deterioration.

"The thing itself shall be restored, even though it be found

in the possession of a third person who has acquired it by
lawful means."
The general rule is that the owner of property illegally taken
by the offender can recover it from whomsoever is in possession
thereof.
Whoever may have been deprived of his property in consequence
of a crime is entitled to the recovery thereof, even if such property
is in the possession of a third party who acquired it by legal means
other than those expressly stated in Arts. 559 and 1505 Civil
Code. (See U.S. vs. Sotelo, 28 Phil. 147.)

The fact that the accused was sentenced to pay its value, does
not bar the recovery of the article by the owner from anyone holding
it. (Gacula vs. Martinez, 88 Phil. 142, 145)

"Who has acquired it by lawful means."

The second paragraph of Art. 105 provides that the thing itself
shall be restored, even though it be found in the possession of a third
person who has acquired it by lawful means.
Thus, even if the property stolen was acquired by a third person
by purchase without knowing that it had been stolen, such property
shall be returned to the owner.
If the thing is acquired by a person who knows it to be stolen,
he is an accessory and he is also criminally liable.

Under the Civil Code, the person who has lost any
personal property or has been unlawfully deprived
thereof cannot obtain its return without reimbursing the
price paid therefor,
913
Art. 105

only when the possessor thereof acquired it in good faith

at a public sale.
Art. 559 Civil Code (Rep. Act No. 386) provides: The pos-
session of movable property acquired in good faith is equivalent to a
title. Nevertheless, one who has lost any movable or has been
fully deprived thereof, may recover it from the person in possession
of the same.
If the possessor of a movable lost or of which the owner has been
unlawfully deprived, has acquired it good faith at a public sale, the
owner cannot obtain its return without reimbursing the price paid
therefor.

Must be acquired (1) "at public sale," and (2) "in good
faith."
A was convicted of estafa for having pawned the jewels which had
been given to him by B to be sold on commission. Having found that
the jewels had been pawned by A to a pawnshop, B filed a petition in
court to require the owner of the pawnshop to restore said jewels.
Held: The owner of the pawnshop may be obliged make restitution
of the jewels, because although he acted in good faith, he did not acquire
them at public sale. vs. 9 Phil. 482, 484)
The court which convicted the accused of estafa may summon
the owner of the pawnshop and, after hearing him, order the return
of the jewels pawned to him without reimbursement of the amount
of the pledge. The pawnshop owner may seek his remedy from the
person who pawned the jewels. (Reyes vs. Ruiz, 27 Phil. 458, 460-
461)

Where the purchaser of the stolen carabao was held not crimi-
nally liable, he should nevertheless restore the carabao to the lawful
owner, without reimbursement of the price, since he did not purchase
the carabao at a public But said purchaser may sue the thief
for the recovery of what he had paid. (U.S. vs. Soriano, 12 Phil. 512,
515)

Restitution cannot be ordered before judgment.

The things involved in an estafa case, which are in the custody
of a possessor in good faith, cannot be returned by the trial court to

914
 RESTITUTION Art. 105

the alleged offended party before final judgment is rendered in the

estafa case. Restitution would be premature in that case, because
the mere filing of a criminal action for estafa is no proof that estafa
was in fact committed. (Chua vs. Kapunan, Jr., 104 Phil. 110,
114-115)

When the third person acquired the thing "in the manner
and under the requirements which, by law, bar an action
for its recovery."
Restitution shall not be ordered by the court when the thing
has been acquired by the third person in the manner and under the
circumstances which, by bar an action for its recovery.
Thus, an innocent purchaser for value of property covered
by a cannot be required to return the same to
its owner who has been unlawfully deprived of it, because
Sec. 39 of Act No. 496 specially protects the title of an in-
nocent purchaser.

2. When sale is authorized, the property cannot be recovered.

Where the owner of personal property delivered it to an-
other for the purpose of sale, the fact that the latter sold
it at a price lower than that fixed does not prevent the
passing of title to the purchaser and the property cannot
be recovered by the previous owner. It was not the sale of
the jewels for a lower price that constituted the crime of
estafa, but the act of misappropriating the proceeds
sale.

A person who is not a party in the case cannot recover in

the criminal action any indemnity from the accused.
Example: A stole a caraballa belonging to B. A sold it to C for
In the case where A was charged with theft caraballa, the
court ordered C to return the animal to B and ordered A to indemnify
C in the sum of P100 . Can C recover the in the same case?
No, because in selling the animal to C, A pretended to be the owner
thereof, thereby committing estafa, which is another offense.
The person convicted of theft cannot be condemned to indemnify
the purchaser stolen because the stealing of the animal
and its subsequent sale by the thief to a third person constitute dis-

915
Art. 105 RESTITUTION

crimes of theft and estafa and the offended parties are different,
being the owner and purchaser, respectively. (U.S. vs. Barambangan,
34 Phil. 645, 646)

When the liability to return a thing arises from contract,

not from a criminal act, the court cannot order its return in
the criminal case.
Thus, when after trial the court finds that a sum of money was
received by the accused from the complainant as a loan, and for that
reason dismisses the criminal case for estafa, it cannot order the
accused to pay the amount to the complainant, because his liability
to return it arises from civil contract, not from a criminal act, and
may not be enforced in the criminal case. (People vs. Pantig, 97 Phil.

Restitution may be ordered, even if accused is acquitted,

provided the offense is proved and it is shown that the
thing belongs to somebody else.
As a rule, if the accused is acquitted, the court should not order
the return property to its alleged owner. But if it is shown that
the ring belonged to, and was in the possession of, somebody else,
and that it was stolen from him, but the identity of the thief was not
established by the prosecution, and the accused pawned it in the
pawnshop from which it was recovered, the court should order its
return to the owner. In this case, the offense was proved but not the
identity offender. (People vs. Alejano, 54 Phil. 987, 989)

Is restitution limited only to crimes against property?

When a crime is not against property, no restitution or reparation
thing can be done. (De las vs. Royal Bus Co., Inc., C.A.,
56 O.G. 4052)

But in a treason case, the defendant was ordered to return the

P3,900 to the person from whom he took the same when he commit-
ted the treasonous act. (People vs. Logo, 80 Phil. 377, 379)
In an abduction case, the defendants were ordered to return
the taken by them from the offended girl. (U.S. vs.
19 Phil. 130, 134)

916
 RESTITUTION Art. 105

The return of the usurious interest collected in violation of

the Usury Law is in the nature of restitution of a thing criminally
obtained. (People vs. Caldito, 72 Phil. 263 , 265)

Salary of acquitted accused may not be ordered paid in

criminal cases.
The payment of salary of an employee during the period of sus-
pension cannot, as a general rule, be properly decreed by the court in
a judgment of acquittal. It devolves upon the head of the department
concerned, and is discretionary with him. (People vs. 69 Phil.
496, 497)
Neither the Revised Penal Code nor the Rules of Court on crimi-
nal procedure vests in the court, authority to grant such relief. No
issue was joined on whether the accused was entitled to the payment
of his salary during suspension. (Manila Railroad Co. vs.
93 Phil. 715, 717-718)

The Court has authority to order the reinstatement of the

accused acquitted of a crime punishable by the penalty of
perpetual or temporary
People vs. Consigna
(G.R. No. Aug.
Facts: Pablo A. Consigna, then property clerk of the Division
Superintendent of Schools for Surigao del Norte, and E.
warehouseman of the NAMARCO, Surigao Branch, were charged with
the crime of willful malversation of government property. After trial,
the court rendered judgment of acquittal and ordered both accused to
be reinstated to their former positions.
Issue: Whether or not the trial court, besides acquitting accused,
had the authority to order their reinstatement.
Held: According to Art. 217 of the Revised Penal Code, a party
found guilty of malversation of public funds shall be punished with
imprisonment and the additional penalty of special perpetual disquali-
fication. It is clearly inferable from this that his conviction necessarily
results in his dismissal from public office he occupied at the time he
committed the offense.
The case People vs. Daleon, March 24, 1961, is not
controlling because the ruling in said case was simply to the effect that
 Art. 106 REPARATION

upon acquitting one charged with malversation of public funds, the

court has no authority to order payment of his salaries corresponding
to the period of his suspension because his right to the same was not
involved in the case. This ruling does not apply to defendant's right
— in case of acquittal — of reinstatement because this matter would
seem to be involved in the case of malversation — albeit as a mere
incident — because conviction of the offense charged results necessar-
ily in a denial of such right to reinstatement in review of the penalty
of disqualification provided by law. If this is the inevitable result of
conviction, reinstatement should also follow acquittal.
The above ruling was applied in the case of People vs.
G.R. No. May where the accused, who was acquitted,
was charged with the crime of infidelity in the custody of documents.
Art. 226, R.P.C, which defines the crime, prescribes the additional
penalty of temporary special disqualification in its maximum period to
perpetual special disqualification. Under Art. 31, R.P.C, the penalties
of perpetual or temporary disqualification shall produce the effect of
deprivation of the office affected.

Art . 106 . Reparation — How made. — Th e c o u r t s h a l l

d e t e r m i n e th e a m o u n t o f d a m a g e , t a k i n g int o c o n s i d e r a t i o n
th e p ri c e o f th e t h i n g , w h e n e v e r p o s s i b l e , an d it s s p e c i a l
s e n t i m e n t a l v a l u e t o th e i n j u r e d party , an d r e p a r a t i o n sh al
l b e mad e a c c o r d i n g l y .

Reparation will be ordered by the court if restitution is not

possible.
Thus, when the stolen property cannot be returned because it
was sold by the thief to an unknown person, he will be required by
the court, if found guilty, to pay the actual price of the thing plus its
sentimental value to its owner.

If there is no evidence as to the value of the thing

reparation cannot be made. (People vs. Dalena, C.A., G.R. Nos.
and Oct.

What reparation includes.

Under this provision, the repair of the material damage caused
by the robbers in breaking doors, wardrobes, etc., in addition to the

918
 INDEMNIFICATION Art. 107

value of the thing taken, may be assessed and included as part

reparation to be paid by the robbers.
In a rape case, the accused was ordered to pay the value
woman's torn garments. This is reparation which is distinct from the
indemnity. (U.S. vs. 4 Phil. 204, 206)

Civil damages are limited to those caused by and flowing

from the commission of the crime.
The civil damages which may be recovered in criminal action
are limited to consequential damage caused by, and flowing from, the
commission of the crime of which the accused is convicted.
Thus, if a person was convicted of estafa for not having returned
a bicycle which he had rented at the rate 1.50 a day, the court may
only impose as indemnity or reparation the value of the bicycle, but can-
not further order him to pay the rents of said bicycle corresponding to
the days during which the owner same was deprived of its use.

The unpaid hire of the bicycle arose under the contract of hire
and did not result from the commission of the crime. The amount
corresponding to the hire is recoverable in a civil action. (U.S.
vs. Dionisio, 35 Phil. 141, 143)

Payment by the insurance company does not relieve the

of- fender of his obligation to repair the damage caused.
The accused contends that inasmuch as the owner of the car
damaged was already paid his damages by the insurance company,
he should not be required to pay such damages caused by him. Held:
That payment by the insurance company was not made on behalf of
the accused, but was made pursuant to its contract with the owner
of the car. But the insurance company is subrogated to the right of
the offended party as regards the damages. (People vs. Reyes, C.A.,
50 O.G. 665)

Art. 107. Indemnification — What is included. — Indemnifi-

cati o n o f c o n s e q u e n t i a l d a m a g e s shall i n c l u d e no t onl y thos e
ca u s e d th e in ju re d party, bu t als o th os e suffered b y his family
or by a thir d p e r s o n by r e a s o n of th e cri me .

919
 Art. 107 INDEMNIFICATION

Indemnity refers generally to crimes against persons; repara-

tion to crimes against property.
Indemnity is ordinarily the remedy granted to the victims of
crimes against persons; reparation, to the victims of crimes against
property.

Example of damages caused the injured party.

In physical injuries, the injured party is entitled to be paid for
whatever he spent for the treatment of his wounds, doctor's fees, and
for medicine, and furthermore, his salary or wages unearned by him
because of his inability to work due to the injuries received by him,
the damages sustained by him because of the loss of a limb or the
lessening of his earning capacity, etc. (Guevara)

Indemnity for medical services still unpaid may be recovered.

Since the offended party has not yet paid the doctor for medical
services, the court cannot sentence the accused to indemnify the of-
fended party in the amount of because the offended party
has not spent it. Action is, however, reserved to him to recover it from
the accused as soon as he shall have paid it to the doctor. (People vs.
Granale, C.A., 50 O.G. 698)

But in the case of vs. 104 Phil. 529, 531 ,

the Supreme Court held that, taking into account the necessity and
cost of corrective measures to arrest the degenerative process taking
place in the mandible and restore the injured boy to a nearly normal
condition, surgical intervention was needed, for which the doctor's
charges would amount to while removal of the scar on the
face obviously demanded plastic surgery, the indemnity granted by
the trial court should be increased.

It will be noted that even if there was no actual payment of

the doctor's fee, the amount necessary to pay the doctor for surgical
operation was taken into account in awarding the damages.

Example of damages suffered by the family.

The chauffeur of defendant, through reckless imprudence,
bumped a resulting in the death of four passengers. Chauf-
feur was convicted.

920
 INDEMNIFICATION Art. 107

Plaintiffs brought action against defendant on its subsidiary

liability as employer guilty chauffeur. Lower court sentenced
defendant to pay, by way of indemnity, P500.00 to each family
victims.
Defendant contended that since there were only three families
involved, because two of the victims as brothers pertained to one
family, it should pay only instead
Held: The parents or heirs of the two deceased have suffered
double damages by reason death of their two children, with the
consequence that it is just to indemnify them in the same measure
for the death of each. (Copiaco vs. Luzon Brokerage Co., Inc., 66 Phil.

Contributory negligence on the part of the offended party

reduces the civil liability of the offender.
Since the deceased was guilty of contributory negligence, this
circumstance reduces the civil liability of the offender in homicide
through reckless imprudence. (People vs. De Guia, C.A., G.R. No.
Aug. 29, 1955)

When civil indemnity may be increased on appeal.

The civil indemnity may be increased only if it will not require
an aggravation of the decision in the criminal case on which it is
based. In other words, the accused may not, on appeal by the ad-
verse party, be convicted of a more serious offense or sentenced to a
higher penalty to justify the increase in the civil indemnity. (Heirs
of vs. No. L-54904, Jan. 29, 1988, 157 SCRA 518,
522)

Damages recoverable in case of death.

They are:
1. In recent cases, the Supreme Court has raised it to
(Art. 2206, Civil Code; People vs. Ravelo, G.R.
Nos. 78781-82, Oct. 15, 1991, 202 SCRA 655, 673)
2. For the loss of the earning capacity of the deceased. (Art.
2206, par. [1], Civil Code)

921
Art. 107 INDEMNIFICATION

3. Support in favor of a person to whom the deceased was

obliged to give, such person not being an heir of the de-
ceased. (Art. 2206, par. [2], Civil Code)
4. Moral damages for mental anguish in favor of spouse,
descendants and ascendants of the deceased. (Art. 2206,
par. [3], Civil Code)
5. Exemplary damages in certain cases. (Art. 2230 , Civil
Code)

Damages in crimes and quasi-delicts.

In crimes and quasi-delicts, the defendant shall be liable for
all damages which are the natural and probable consequences
act or omission complained of. It is not necessary that such damages
have been foreseen or could have reasonably been foreseen by the
defendant. (Art. 2202, Civil Code)
In crimes, the damages to be adjudicated may be respectively
increased or lessened according to the aggravating or mitigating
circumstances. (Art. 2204, Civil Code)
The amount of damages for death caused by a crime or quasi-
delict shall be at least Fifty thousand pesos, even though there may
have been mitigating circumstances. In addition:

The defendant shall be liable for the loss of the earning

capacity deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity shall in every case
be assessed and awarded by the court, unless the deceased
on account of permanent physical disability not caused by
the defendant, had no earning capacity at the time of his
death;

(2) If the deceased was obliged to give support according

to the provisions of Article 291 , the recipient who is not
an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support from
the person causing the death, for a period not exceeding
five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and

ascendants of the deceased may demand moral damages

922
 INDEMNIFICATION Art. 107

for mental anguish by reason death of the deceased.

(Art. 2206, Civil Code)

Civil indemnity for death caused by crime raised to

The civil indemnity for death caused by a crime has been
raised from to 5 0 , 0 0 0 . 0 0 in accordance wit h the
Resolution Supreme Court en banc dated August 30, 1990.
(People vs. De Guzman, G.R. No. 82002 , Dec. 20, 1990 , 192 SCRA
People vs. Ravelo, G.R. Nos. 78781- 82 , Oct. 202
SCRA 655 , 673)

Civil indemnity for crimes by circumstances where

the death penalty may be imposed.
The awarded by the trial court as civil indemnity was
correctly increased by the Court of Appeals to which is
the amount awarded if the crime is qualified by circumstances which
warrant the imposition death penalty. (People v. Barcena, G.R.
No. 168737, 482 SCRA 543 , 561
If the crime of rape is committed or effectively qualified by any
of the circumstances under which the death penalty is authorized by
the present amended law, the indemnity victim shall be in the
increased amount of not less than (People vs. Victor, 292
SCRA 186)

Effect of Rep. Act No. 9346 on civil indemnity for heinous

crimes.
It should be understood that the debarring death penalty
through Rep. Act No. 9346 did not correspondingly declassify those
crimes previously catalogued as "heinous." The amendatory effects
of Rep. Act No. 9346 extend only to the application of the death
penalty but not to the definition or classification of crimes. True,
the penalties for heinous crimes have been downgraded under the
aegis of the new law. Still, what remains extant is the recognition
by law that such crimes, by their abhorrent nature, constitute a
special category by themselves. Accordingly, Rep. Act No. 9346 does
not serve as basis for the reduction of civil indemnity and other
damages that adhere to heinous crimes. (People vs. G.R. No.
166401, Oct. 30, 2006)

923
 Art. 107 INDEMNIFICATION

In the case People vs. Salome, G.R. No. 169077, Aug. 31 ,

2006, the Supreme Court sustained the grant of Php75,000 as civil
indemnity to the victim, explaining "that while the new law prohibits
the imposition of the death penalty, the penalty provided for by law
for a heinous offense is still death and the offense is still heinous."

Civil indemnity for rape.

The award of as indemnity is mandatory
upon the finding of the fact of rape. (People vs. Maglente, 306 SCRA
546)

Civil indemnity for rape with homicide.

The civil ind emni ty for rape with homicide is now set at
(People vs. Robles, G.R. No. 124300, March 25, 1999,
People vs. Bantilan, G.R. No. 129286, Sept. 14, 1999)

Damages recoverable for rape with homicide.

In the case of People vs. Gumimba, G.R. No. 174056, Feb. 27,
2007, Appellant was ordered to indemnify the heirs of the victim in
the amount of P100,000.00 as civil indemnity, as moral
damages, as temperate damages and as
exemplary damages.

The amount of damages for death caused by a crime is in-

creased from time to time by the Supreme Court.
Art. 2206 Civil Code provides that:
"The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos even though
there may have been mitigating circumstances x x x "
The amount of referred to in the above article has already
been increased by the Supreme Court first, to in People v.
Amansec, 80 Phil. 426, and then to in the case People
v. Pantoja, G.R. No. 18793, promulgated October As per the
policy adopted by the Court en banc on August 30, 1990, the amount
of civil indemnity for death caused by a crime has been increased to
(People vs. Teehankee, Jr., G.R. Nos. Oct. 6,
1995)

924
 INDEMNIFICATION Art. 107

The indemnity for death caused by a quasi-delict used to be

pegged at P3,000 , based on Article 2206 of the Civil Code. However,
the amount has been gradually increased through the years because of
the declining value of our currency. vs. Spouses Sumayang,
No. 139875, Dec. 4, 2000)
In quasi-delicts, the contributory negligence of the plaintiff
shall reduce the damages that he may recover. (Art. 2214 , Civil
Code)
No proof of pecuniary loss is necessary in order that moral,
nominal, temperate, liquidated or exemp lary damages may be
adjudicated. The assessment of such damages, except liquidated ones,
is left to the discretion of the court, according to the circumstances of
each case. (Art. 2216, Civil Code)

Indemnity for Lost Earnings.

The indemnity for the loss of the victim's earning capacity is
computed as follows:
Net earning capacity Life expectancy x (Gross annual income
- living expenses)
Life expectancy is based on the American Expectancy Table of
Mortality and is computed using the formula: 2/3 x (80 - age of the
deceased at the time of death).
In the absence of proof, living expenses is estimated to be
gross annual income.
(People vs. Lara, G.R. No. 171449, 23 Oct 2006, citing [People v.
G.R. No. 134605, 12 March 2002, 379 SCRA 107,

Documentary Evidence should be presented to substantiate

a claim for loss of earning capacity.
The rule is that documentary evidence should be presented to
substantiate a claim for loss of earning capacity. By way of exception,
damages therefore may be awarded despite the absence of documen-
tary evidence if there is testimony that the victim was either (1)
self-employed, earning less than the minimum wage under current
labor laws, and judicial notice is taken fact that in the victim's
line of work, no documentary evidence is available; or (2) employed

925
Art. 107 INDEMNIFICATION

as a daily-wage worker earning less than the minimum wage under

current labor laws. (People vs. G.R. No. 145993, 17 June
2003, 404 SCRA 170).

Computation of award for loss of earning capacity is

based on the life expectancy of the deceased.
In the computation of the award for loss of earning capacity of
the deceased, the life expectancy of the deceased's heirs is not factored
in. The rule is well-settled that the award of damages for death is
computed on the basis of the life expectancy deceased, and not
the beneficiary. (Philippine Airlines, Inc. v. Court of Appeals, G.R. No.
54470, May 8, 1990, 185 SCRA 110, 121, citing v. Philippine
Airlines, No. February 28, 1973, 49 SCRA 497)

Temperate damages may be awarded if income of victim is

not sufficiently proven.
v. Court of Appeals, G.R. No. L-56505, 9 May
SCRA 208, 224-225, the Supreme Court sustained the
trial court's award of as temperate damages in lieu of
actual damages for loss of earning capacity because the income of the
victim was not sufficiently proven, thus -
"The trial court based the amounts of damages awarded to the
petitioner on the following circumstances:

"As to the loss or impairment of earning capacity, there is

no doubt that Pleno is an ent[re]preneur and the founder of his
own corporation, the Mayon Ceramics Corporation. It appears
also that he is an industrious and resourceful person with
several projects in line, and were it not for the incident, might
have pushed them through. On the day of the incident, Pleno
was driving homeward with geologist Longley after an ocular
inspection of the site of the Mayon Ceramics Corporation. His
actual income however has not been sufficiently established so
that this Court cannot award actual damages, but, an award
of temperate or moderate damages may still be made on loss
or impairment of earning capacity. That Pleno sustained a
permanent deformity due to a shortened left leg and that he
also suffers from double vision in his left eye is also established.

926
 INDEMNIFICATION Art. 107

Because of this, he suffers from some inferiority complex and is

no longer active in business as well as in social life. In similar
cases as in Borromeo v. Manila Electric Railroad Co., 44 Phil
165; et al. v. LTB Co., et Dec. 29, 1960,
and in et al. v. et Sept.
the proper award of damages were given."
Article 2224 of the Civil Code which provides that temperate
or moderate damages, which are more than nominal but less than
compensatory damages, may be recovered when the court finds that
some pecuniary loss was suffered but its amount cannot be proved
with certainty, was applied in the cases of People v. Singh, 412 Phil.
(2001), People v. Almedilla, G.R. No. 150590, 21 August
2003, 409 SCRA to justify the award of temperate damages
in lieu of damages for loss of earning capacity which was not substan-
tiated by the required documentary proof.
In the Singh case, the Supreme Court awarded by
way of temperate damages, in lieu of the awarded by
the trial court as damages for loss of earning capacity of the deceased
since the prosecution did not present sufficient evidence to prove the
deceased's income.
In the Almedilla case, the Supreme Court did not compute
damages for loss of earning capacity on the basis of the widow's tes-
timony that her deceased husband was earning a month
and from his sideline. Instead, the widow was awarded
as temperate damages.

Compensation for loss of earning capacity, not required

that the victim is gainfully employed.
To be compensated for loss of earning capacity, it is not necessary
that the victim, at the time of injury or death, is gainfully employed.
Compensation of this nature is awarded not for loss of earnings but
for loss of capacity to earn money. In Cariaga v. Laguna Tayabas
Bus Company, No. L-11037, December 29, 1960, 110 Phil 346, the
Supreme Court awarded to the heirs victim a sum representing
loss of his earning capacity although he was still a medical student
at the time of injury. However, the award was not without basis for
the victim was then a fourth year medical student at a reputable
school; his scholastic record, which was presented at the trial, justi-

927
Art. 107 INDEMNIFICATION

an assumption that he would have been able to finish his course

and pass the board in due time; and a doctor, presented as witness,
testified as to the amount of income the victim would have earned
had he finished his medical studies. (People vs. Teehankee, Jr., G.R.
Nos. 111206-08, Oct. 6, 1995)

Moral Damages.
Moral damages may be recovered in the following and analogous
cases:
A criminal offense resulting in physical injuries;
(2) xxx ;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9)
(10) xxx .

The parents of the female seduced, abducted, raped, or abused,

referred to in No. 3 of this article, may also recover moral
(Art. 2219, Civil Code)

Moral damages in rape.

In crimes of rape, moral damages may additionally be awarded
to the victim, without need for pleading or proof of the basis thereof.

(T)he fact that complainant has suffered the trauma of

mental, physical and psychological sufferings which constitute the
bases for moral damages are too obvious to still require the recital
thereof at the trial by the since the court itself even assumes
and acknowledges such agony on her part as gauge of her credibility.
What exists by necessary implication as being ineludibly present need
not go through a testimonial charade. (People vs. Prades, 293 SCRA
411)

928
 INDEMNIFICATION Art. 107

The amount of moral damages for rape has been set at

(People vs. Prades, supra)

Exemplary Damages.
In criminal offenses, exemplary damages as a part of the civil
liability may be imposed when the crime was committed with one or
more aggravating circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended party. (Art. 2230,
Civil Code)

Exemplary damages may be given only when one or more

aggravating circumstances are alleged in the information and proved
during the trial. (People vs. Moran, Jr., G.R. No. 170849, March 7,
2007)
If a crime is committed with an aggravating circumstance,
either qualifying or generic, an award of as exemplary
damages is justified under Article 2230 of the New Civil Code.
This kind of damage is intended to serve as a deterrent to serious
wrongdoings, and as a vindication of undue sufferings and wanton
invasion of the rights of an injured or a punishment for those guilty
of outrageous conduct. (People vs. Cabinan, G.R. No. 176158, March
27, 2007)
Exemplary damages cannot be recovered as a matter of right;
the court will decide whether or not they should be adjudicated. (Art.
2233, Civil Code)
While the amount of the exemplary damages need not be proved,
the plaintiff must show that he is entitled to moral, temperate or
compensatory damages before the court may consider the question
of whether or not exemplary damages should be awarded. (Art. 2234,
Civil Code)
With respect to the exemplary damages awarded by the trial
court, the same are justified by the fact that the herein appellant
without having been issued by competent authority a license to
drive a motor vehicle, wilfully operated a BHP dump truck and
drove it in a negligent and careless manner as a result of which
he hit a pedestrian who died from the injuries sustained by him.
(People vs. Medroso, Jr., No. L-37633, Jan. 31 , 1975, 62 SCRA 245,
252)

929
Art. 107 INDEMNIFICATION

for consequential damages in homicide thru

reckless imprudence.
The appellant was guilty of reckless negligence, and that the
incident at bar was due to such negligence. The acts committed by him
constitute the crime of multiple homicide with less serious physical
injuries, prescribed and punished in Article 365, in relation with
Article 48 Revised Penal Code.

The heirs of the deceased are entitled to indemnification for

consequential damages under Article 38 of the Revised Penal Code.
Hence, we find that —
(1) For the death of Crescenciano Barabag, who was around
70 years old when he died, leaving as heirs a brother and
several nephews and nieces, an award indemnity
to his heirs should be made. This amount would adequately
indemnify his heirs for his death, inasmuch as he had no
occupation when he died and there is no evidence as to the
expenses incurred in his funeral.

(2) For the death of Camposo, who at the time of his

death was 26 years old and was engaged in farming and other
activities from which he derived an earning of about
a month, leaving as heirs a widow and 5 minor children, an
award his heirs should be made. This amount
is deemed adequate for the loss to said heirs of the deceased's
earnings, protection, guidance and company.
(3) For the death of Juan Camposo, who at the time he died
was engaged in farming and basket weaving from which
he derived an income of approximately a year,
leaving as heirs a widow and 11 children, would
be adequate for the loss to the latter of his earnings, pro-
tection, guidance and company.
(4) For the death of Jesus Butalid, who was about 12 years old
and only a student when he died, leaving as heirs a father
and a mother, an award of to the latter would
be adequate to compensate them for the loss of their son.
(People vs. Biador, 55 O.G. 6384)

In a case where the deceased was crushed to death

due to the negligence of the bus driver of the Meralco, the

930
 INDEMNIFICATION Art. 107

factors considered by the court in assessing the actual and

moral damages were: (1) the tender ages heirs at the
time death deceased — ranging from 5 to 13
years; (2) the age (39 years), life expectancy (28.9 years),
and state of health deceased; (3) his earning capacity;
(4) actual pecuniary losses; (5) the pain and suffering of
the deceased and his heirs; and (6) the financial situation
party liable.

At the time of his death, the deceased was vice-presi-

dent of Go Soc & Sons with an annual salary of
Using this item as the basis, the court awarded as
damages equivalent to his salary for 3 years, 1946-1948.
The court found that if the deceased were alive in 1949,
his salary would be a year. Salaries for four years
in the total amount of were allowed. The award
was considered conservative, because the court took into
account only 4 years out of his life expectancy of 28.9 years.
The award of as moral damages was held to be
reasonable. (Alcantara vs. 49 O.G. 2769)

Distinction between civil indemnity and moral damages.

Ju r i s p r u d e n c e ha s el ucidated that the award authorized
by the criminal law as civil indemn ity for the offended
party, in the amount authorized by the prevailing judicial policy
and aside from other proven actual damages, is itself equivalent
to actual or compensatory damages in civil law. For that matter,
the civil liability ex-delicto provided by the Revised Penal Code,
that is, restitution, reparation and indemnification, all corresponds
to actual or compensatory damages in the Civil Code, since the
other damages provided therein are moral, nominal, temperate or
moderate, liquidated and exemplary or corrective damages, which
have altogether different concepts and fundamentals. (People vs.
Prades, 293 411 )

Actual damages must be proved.

Except as provided by law or by stipulation, one is entitled to
an adequate compensation for such pecuniary loss suffered by him
as he has duly proved. Such compensation is referred to as actual or
compensatory damages. (Art. 2199, Civil Code)

931
 Art. 107 INDEMNIFICATION

Where the messenger of the Bureau of Forestry stole treasury

warrants which were not cashed, no pecuniary loss was suffered by
the government. Consequently, no indemnity can be properly imposed
on the messenger who was convicted. (People vs. 71 Phil. 506,
507)
In a robbery case, the indemnity for the goods taken by the
accused amounting to was eliminated, because there was no
allegation in the information as to the value goods taken. (People
vs. Tundia, G.R. May 25, 1951, 89 Phil. 807
The indemnity cannot be assessed on speculation or guesswork.
(People vs. Dalena, CA-G.R. No. Oct. 25, 1954)
It is necessary for a party seeking the award of actual damages
to produce competent proof or the best evidence obtainable to justify
such award. Only substantiated and proven expenses, or those that
appear to have been genuinely incurred in connection with the death,
wake or burial of the victim shall be recognized in courts. The courts
will not rely merely on supposition or conjecture. (People vs.
279 SCRA 290)

Moral and exemplary damages do not require proof of pecuniary loss.

When the offended party was injured with multiple wounds
inflicted upon him by the accused, causing him to be hospitalized for
4 months, he is entitled to moral damages which, like the exemplary
damages, do not require proof of pecuniary loss, as the assessment
of such damages is left to the discretion of the court. The amount of
as moral damages is not excessive. (People vs. Gerodias, C.A.,
51 O.G. 4614)

Moral damages in accident cases.

Moral damages could be recovered if a pedestrian was injured or
killed by a motor vehicle due to the negligence of its driver. (Alcantara
vs. 93 Phil. Castro vs. Taxicab 82 Phil. 359,
378)

But no moral damages can be claimed by an injured passenger

in an action against the bus owner based on culpa contractual. Said
moral damages are not allowed under Art. 2219 Civil Code. The
negligent driver was the one who caused the moral damages not the
bus owner. (Cachero vs. Manila Yellow Taxicab Co., 54 O.G. 6599)

932
 INDEMNIFICATION Art. 107

Claim for moral damages does not determine jurisdiction of

court.
The claim for moral damages, as only an incident to a criminal
case, does not determine jurisdiction of the court. (People vs. Tejero,
C.A., 59 O.G. 739)

Temperate damages.
Under Article 2224 of the Civil Code, temperate or moderate
damages (which are more than nominal but less than compensatory
damages) may be recovered when the court finds that some pecuniary
loss was suffered but its amount cannot be proved with certainty.
(Victory Liner, Inc. v. G.R. No. 159636 , 25 November
2004)

Temperate damages, in the amount of must be

awarded considering that it was established that the victim's fam-
ily incurred expenses for his hospitalization and burial. (People vs.
G.R. No. 176158, March 27, 2007, People vs.
G.R. No. 139456, July 7, 2004, 433 SCRA 562, 581)

Attorney's fees in criminal cases.

The recovery of attorney's fees in the concept of actual or
compensatory damage is allowed under the circumstances provided
for in Article 2208 of the Civil Code, one of which is when the court
deems it just and equitable that attorney's fees and expenses of
litigation should be recovered. (People vs. Bergante, et. 120369-
70, February 27, 1998)
Article 2208 of the Civil Code allows the recovery of attorney's
fees in cases when the defendant's act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to protect
his interest and in any other case where the court deems it just and
equitable that attorney's fees and expenses of litigation should be
recovered.
We affirm the award of for attorney's fees made by the
trial court and the appellate court. Under Article 2208 of the Civil
Code, attorney's fees and expenses of litigation may be recovered when
exemplary damages have been awarded, as in this case. vs.
People, G.R. No. 163351, June 21, 2005)

933
 Art. 108 OBLIGATIONS OF HEIRS OF PERSON LIABLE
AND RIGHTS OF HEIRS OF PERSON INJURED

Civil liability not part of the punishment.

As the civil liability is not part of the punishment for the crime,
the action of the Supreme Court in affirming the judgment as to the
guilt and punishment of the accused and of reversing it as to the
question of damages, with instructions to try the civil branch
case, does not constitute double jeopardy. (U.S. vs. 25 Phil.

Art. 108. Obligation to make restoration, reparation for damages,

or indemnification for consequential damages and action to demand
the same — Upon whom it devolves. — Th e o b l i g a t i o n to m ak e
r e s t o r a t i o n o r r e p a r a t i o n for d a m a g e s an d i n d e m n i f i c a t i o n
for c o n s e q u e n t i a l d a m a g e s d e v o l v e s u p o n th e h ei r s o f th e
p e r s o n li abl e.

Th e a c t i o n t o d e m a n d r e s t o r a t i o n , r e p a r a t i o n an d in-
d e m n i f i c a t i o n l i k e w i s e d e s c e n d s t o th e h e i r s o f th e p e r s o n
in ju red.

The heirs of the person liable has no obligation if

restoration is not possible and the deceased left no
property.
Thus, if A stole a ring which he later sold to an unknown person
and after A's conviction by final judgment, A died but he left no
property to meet the reparation, A's heirs cannot be made to repair
the damage. But if A left property, the heirs may be required to pay
out proceeds of the property of A. The same thing may be said
with respect to indemnification.

Civil liability is possible only when the offender dies after

final judgment.
If the obligation is liquidated, that is, if the offender before
his death was condemned by final judgment to make restitution,
reparation, or indemnification, the offended party may make effective
his claim by following the procedure provided for in Rule 86 of the
Rules of Court, that is, by filing a copy of the judgment of conviction
against the deceased with the court taking cognizance of the testate

934
or intestate proceedings.

935
 SHARE OF EACH PERSON CIVILLY LIABLE Art. 109

If the death of the offender took place before any final judgment
of conviction was rendered him, the action for restitution,
reparation, or indemn ification mus t n ecessari ly be dismissed,
in accordance with the provisions of Art. 89, par. 1, of this Code.
(Guevara)

Indemnity not possible in acquittal, right of heirs of deceased.

The charge of murder was dismissed by the court because it was
covered by the amnesty proclamation. The court, however, allowed
an indemnity to be paid by the accused in favor of the heirs of the
deceased.
Held: The case having been dismissed by the court, no judgment
for indemnity was proper in the criminal proceeding.
But the heirs of the deceased have a right to enforce the civil
responsibility accused in their favor in a civil action. (U.S. vs.
Madlangbayan, 2 Phil. 426, 428-429)

Art. 109. Share of each person civilly liable. — If th er e ar e

tw o or mor e p e r s o n s ci vi l l y li ab l e for a fel on y, th e c ou rt s shall
d e t e r m i n e th e a m o u n t for w h i c h e a c h mu s t r e s p o n d .

Illustration:
With respect to the civil liability, the indemnity of
awarded by the Court should be apportioned as follows: the principal,
Dungo-an Abao, shall be liable primarily for and the four
accomplices (petitioners) shall be liable primarily and in solidum
among themselves for The subsidiary liability of all of them
shall be enforced in accordance with the provisions of Article of
the Revised Penal Code. vs. People, G.R. No. L-20338, April
27, 1967, 19 SCRA 842, 847) The last sentence means "that, in case
of insolvency of the accomplices, the principal shall be subsidiarily
liable for their share of the indemnity; and in case of the insolvency
of the principal, the accomplices shall be subsidiarily liable, jointly
and severally, for the indemnity due from said principal." (People vs.
Cortes, 55 Phil. 143, 150)

936
 Arts. PREFERENCE IN PAYMENT
OBLIGATION TO MAKE RESTITUTION

Art. 110 . Several and subsidiary liability of principals,

accomplices, and accessories of felony — Preference in payment. —
N o t w i t h s t a n d i n g th e p r o v i s i o n s o f th e nex t p r e c e d i n g arti cl e,
th e p ri n cip al s, a c c o m p l i c e s , an d a c c e s s o r i e s , eac h w i t h i n thei
r r e s p e c t i v e cl ass, sh all be l i ab l e s e v e r a l l y (in solidum) a m o n g
t h e m s e l v e s for th ei r q u o t a s , an d s u b s i d i a r i l y for t h o s e o f th e
oth e r p e r s o n s liab le.
Th e s u b s i d i a r y l i ab i l i ty shal l b e e n f o r c e d , first a g a i n s
t th e p r o p e r t y o f th e p r i n c i p a l s ; n e x t , a g a i n s t t h a t o f th e
a c c o m p l i c e s ; an d lastl y, a g a i n s t tha t o f th e a c c e s s o r i e s .
W h e n e v e r th e l i a b i l i t y in solidum or th e s u b s i d i a r y li-
ab il i ty ha s b e e n e n f o r c e d , th e p e r s o n b y w h o m p a y m e n t ha s
b ee n mad e sh all h a v e a ri gh t o f a c t i o n a g a i n s t th e o t h e r s for
th e a m o u n t o f th ei r r e s p e c t i v e s h a r e s .

Civil and subsidiary liabilities of principals.

When there are principals and accessories in the commission
of the crime of theft of large cattle valued at the principals
are solidarily liable for which represents their quota and
subsidiarily liable for P50.00 representing the quota of their acces-
sories. (People vs. Tocbo, C.A., 45 O.G. 2571)

Civil and subsidiary liabilities of accomplices.

The principal is primarily liable for his own part of the indemnity.
The several accomplices are jointly and severally liable for the portion
adjudged against them and are subsidiarily liable for the portion of
their principal in case latter's insolvency. (People vs. Bantagan,
54 Phil. 834, 841)

Art. Obligation to make restitution in a certain case. — An y

p e r s o n wh o ha s p a r t i c i p a t e d g r a t u i t o u s l y i n th e p r o c e e d s
o f a fel on y shall b e b o u n d t o m a k e r e s t i t u t i o n i n a n a m o u n t
e q u i v a l e n t t o th e e x t e n t o f su c h p a r t i c i p a t i o n .

937
 OBLIGATION TO MAKE RESTITUTION Art.

Not criminally liable.

The person who participated gratuitously in the proceeds of a
felony referred to in this article is not criminally liable.

Must not be an accessory.

If the person who participated gratuitously in the proceeds
felony knew that the property came from an illegal source, he is an
accessory and he is not only civilly liable, but also criminally liable.

"Participated gratuitously."
This article has reference to a case of an innocent person who
has participated in the proceeds of a felony through the liberality of
the offender. In other words, he should not have paid for the stolen
property which he received from the offender.
If the innocent person paid for the article, because he bought it,
Art. 105 applies.

Example of the application of Art.

Suppose A after having stolen a diamond ring worth
gives it to B who, not knowing the illegal origin of same, accepts it.
Later B sells the ring for to a foreigner, who immediately leaves
the country. As the ring cannot be returned, the remedy available
to the offended party is to obtain from the offender the reparation
equivalent to the value of the ring. In case A is insolvent, B shall
be subsidiarily liable in the not exceeding which is the
gratuitous share in the commission crime. (Guevara)

The fortune of the innocent person must be augmented by

his participation in the proceeds of the crime.
It is necessary that his fortune has been augmented by his
participation in the proceeds of the crime. If he merely participated
in the eating of the stolen property, he is not obligated to make
restitution, because his fortune was not enhanced thereby. Viada,
Codigo Penal, 4th p. 550)

938
 Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL
LIABILITY

Art . 112 . Extinction of civil liability. — C i v i l l i a b i l i t y

establishe d i n Article s an d 103 o f th i s Cod e shal
l b e e x t i n g u i s h e d i n th e s am e m a n n e r a s o t h e r o b l i g a t i o n s , i
n a c c o r d a n c e wi t h th e p r o v i s i o n s o f th e Civil Law .

Civil liability is, therefore, extinguished:

(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission debt;
(4) By the confusion or merger of the rights of creditor and
debtor;
(5) By compensation;
(6) By novation.
Other ca u s e s of e x t i n g u i s h m e n t of ob l i g a t i o n s , such as
annulment, rescission, fulfillment of a resolutory condition, and
prescription, are governed elsewhere in this Code. (Art. 1231, Civil
Code)

Prescription is one of the modes of extinguishing obligations

according to Art. of the Civil Code. Where a civil action for dam-
ages due to an alleged libel was brought more than one year after the
cause of action accrued, said action is barred by prescription. Art.
of the Civil Code provides that a civil action for defamation must be
brought within one year. (Tejuco vs. E.R. Squibb & Son Phil. Corp.,
103 Phil. 594, 595)

938
 EXTINCTION OF CIVIL LIABILITY Art. 112

Civil liability is extinguished by subsequent agreement be-

tween the accused and the offended party.
On March 31 , 1959, an agreement was entered into between
appellant and complainant whereunder the former agreed to refund to
the latter, in stated installments, the sum of $1,210.89, representing
the overpayments made for the account of Alfonso Jr. This
agreement was partly executed inasmuch as appellant had made the
down payment of thereon, as well as seven (7) installments
of each or an aggregate amount of Although the
criminal action remained unimpaired, this subsequent agreement
entered into between appellant and complainant was, in effect, a
novation of the civil liability of appellant. This was well within the
right of the parties to do inasmuch as the civil aspect of a crime may
be compounded by subsequent agreement or otherwise extinguished
by the same causes for the extinguishment of civil obligations under
the Civil Law. (Articles 23 and 112, Revised Penal Code) Since
novation is a recognized mode of relatively extinguishing a civil
obligation, it follows that appellant's civil liability arising from the
crime was superseded by the novatory agreement. Complainant's
recourse is to enforce the agreemen t aforesaid. It has become
improper to make an award for civil indemnity at this instance.
(People vs. Tablante Vda. de Marte, C.A., 65 O.G. 1328, February
10, 1969)

Effect of condonation of civil liability.

The offended party in a criminal case executed an affidavit in
which he swore to the following: "That in conscience I hereby with-
draw, condone, dismiss and waive any and all claims, civil, criminal
or administrative, that I may have against Amancio Balite due to or
by reason of the misunderstanding which brought about the filing
of the said criminal case." It was held that affidavit of the offended
party necessarily wiped out the civil indemnity of granted
by the lower court.
Express condonation by the offended party has the effect of
waiving civil liability with regard to the interest injured party.
For civil liability arising from an offense is extinguished in the same
manner as other obligations, in accordance with the provision
civil law. (Balite vs. People, No. Sept. 30, 1966, 18 SCRA

939
 Art. OBLIGATION TO SATISFY CIVIL LIABILITY

Civil liability may arise from —

(1) Crime,
(2) Breach of contract (culpa contractual), or
(3) Tortious act (culpa aquiliana).
The first is governed by the Revised Penal Code. The second and
the third are governed by the Civil Code. The civil liability from any of
those three sources is extinguished by the same causes enumerated.

Offender is civilly liable even if stolen property is lost by

reason of force majeure.
Where it appears that a person has been deprived of the
possession of his property, the malefactor is responsible to the owner
either (1) for the return property or (2) for the payment of its
value if it cannot be returned, and this whether the property is lost
or destroyed by the act of the malefactor or that of any other person,
or as a result of any other cause or causes. (U.S. vs. Mambang, 36
Phil. 348, 349; See Art. 1268, Civil Code)
Thus, even if the cattle stolen by the accused died from rinderpest
while in the possession of the constabulary during the pendency of
the trial, in case of conviction, the accused are still liable civilly for
the reasonable value of the said cattle.

Art. 113 . Obligation to satisfy civil liability. — E x c e p t in

cas e o f e x t i n c t i o n o f hi s civi l l i ab i l i t y a s p r o v i d e d i n th e n ex t
p r e c e d i n g arti cl e , th e o f f e n d e r sh al l c o n t i n u e t o b e o b l i g e d t
o sati sfy th e civil l i ab i l i t y r e s u l t i n g fro m th e c r i m e c o m m i t t e
d b y him , n o t w i t h s t a n d i n g th e fac t tha t h e ha s s e r v e d hi s sen
- te n c e c o n s i s t i n g o f d e p r i v a t i o n o f l i b e r t y o r o t h e r r i g h t s , o
r ha s no t b e e n r e q u i r e d t o s er v e th e sa m e b y r e a s o n o f
a m n e s t y , p a r d on , c o m m u t a t i o n o f s e n t e n c e o r an y o t h e r
reason .

"Notwithstanding the fact that he x x x has not been

required to serve the same (sentence) by reason of
amnesty, pardon, commutation of sentence, or any other
reason."
940
While amnesty wipes out all traces and vestiges of the crime,

941
 OBLIGATION TO SATISFY CIVIL LIABILITY Art. 113

it does not extinguish the civil liability of the offender. (U.S. vs.
Madlangbayan, 2 Phil. 426, 428-429)
A pardon shall in no case exempt the culprit from the payment
of the civil indemnity imposed upon him by the sentence. (Art. 36,
par. 2, Revised Penal Code)

Application for probation affects only the criminal aspect of

the case.
Probation is as "a disposition under which a defendant,
after conviction and sentence, is released subject to conditions imposed
by the Court and to the supervision of a probation officer." (Sec. 3,
P.D. No. 968 [Probation The "conviction and sentence" clause
of the statutory definition clearly signifies that probation affects
only the criminal aspect of the case. If under Article 113 of the
Revised Penal Code, the obligation to satisfy civil liability continues
notwithstanding service of sentence or due to amnesty,
pardon, commutation of sentence, or any other reason, there is no
reason why an application for probation should have an opposite
effect insofar as determination of civil liability is concerned. (Budlong
vs. Apalisok, No. June 24, 1983, 122 SCRA 935, 938-939,
941)