CRIMINAL LAW 1

Criminal Law
- A branch of law which defines crimes, treats of their nature, and provides for
their punishment.

Crime
- Act committed or omitted in violation of a public law forbidding or
commanding it.

Sources of Philippine Criminal Law

1. Revised Penal Code
2. Special Penal Laws
3. Penal Presidential Decree issued during Martial Law

The State has the sole authority to define and punish crimes and to lay down rules
of criminal procedures.

Limitations
1. Due Process and Equal Protection (Art. III, Sec. 1)
2. Non-imposition of excessive fines or cruel punishments (Art. III, Sec. 19.1)
3. No Ex Post Facto Law (Art. III, Sec. 2)

Due Process
1. Substantive due process – intrinsic validity of the law in interfering with the
rights of the person
2. Procedural due process – Notice and Hearing

Equal Protection
- Equal rights for everybody, no matter of who you are.

Excessive fines
- The Constitution prohibits imposition of unusual fines only to criminal
prosecutions.
- Needs to shock the moral sense.

Cruel and unusual punishment

- Psychological punishment that strips away the humanity
- Inhumane punishments
Ex post facto Law
- Prohibition of passing new laws that are prejudicial to the accused.

Bill of attainder
- Legislative that inflicts punishment on people without judicial trial.

Constitutional Rights of the accused

1. The right to a speedy disposition in all judicial, quasi-judicial, and
administrative bodies.
2. No person shall be held to answer for a criminal offense without due
process.
3. The right to bail for persons that is not charged with reclusion perpetua.
4. The accused is innocent until proven guilty.
5. No person is compelled to be a witness against himself.
6. Excessive fines and cruel punishment shall not be imposed.
7. No person shall be twice put in jeopardy of punishment for the same offense.
8. Free access to the courts and legal assistance shall not be denied to any
person by reason of poverty.

Statutory rights of the accused

1. Innocent until proved beyond reasonable doubt.
2. To be informed
3. To be present and defend in person
4. To testify as a witness in his own behalf
5. To be exempt from being a witness against himself
6. To confront the witnesses against him at the trial
7. To have compulsory process to secure the witnesses and evidences in his
behalf.
8. To have a speedy, impartial, and public trial.
9. To appeal in all cases allowed and in the manner prescribed by law

Right of the accused to waive confrontation and cross-examination (private)

Rights of the accused cannot be waived to be informed of the nature and cause of
the accusation against him. (Public interest)

Characteristics of criminal law

1. General – Applies to all person living in the Philippines (Art. 14, new Civil
Code)
Exception to the general application of Criminal Law
 a. Provided in the treaties and laws of preferential application.
b. Art. 14 of the new Civil code, subject to the principles of public
international law and to treaty stipulations.
Diplomats, ambassadors, and public ministers, possess immunity from the
criminal jurisdiction of the country of their sojourn and cannot be sued,
arrested, or punished by the law of that country.
Consuls do not have the same privilege and immunities as a diplomat
because they do not represent their state in political matters.

*Sovereign immunity from suit

Art. XVI, Section 3 of the 1987 Constitution provided that, “the State may
not be sued without its consent.”
This applies to the state and president during his/her tenure.

2. Territorial – Criminal laws undertake to punish crimes committed with the

Philippines territory.
- Penal laws of the Philippines are enforceable only within its territory.
Exception to territorial application of criminal law
a. An offense committed on a Philippine ship or airship
b. Forge or counterfeit currency of the Philippines or obligations issued by
the Government of the Philippines
c. Liable for acts connected to the introduction into the Philippines
d. Public officers who commits offense in the exercise of their functions
e. Any crime committed against national security and the law of nations

3. Prospective – Penal laws shall have no. Retroactive application, lest they
acquire the character of an ex post facto law.
Exceptions to the prospective application of criminal laws
- A penal law may have retroactive effect only when it is favorable to the
accused.
But this exception has no application:
1. When the new law is made inapplicable to pending actions
2. When the offender is a habitual criminal (Art, 22, RPC)
Effects of repeal on penal law
1. If the repeal make the penalty lighter in the new law, except for habitual
criminal or made not applicable.
2. If the new law imposes heavier penalty, the law at the time of offense
shall be applied.
3. If the new law made the existing law as no longer punishable, the crime
is obliterated.
 Construction of Penal Law
1. Penal laws are strictly construed against the Government and in favor of
the accused.
2. In interpretation of the RPC, the Spanish language is controlling because
it was approved as such.

THE REVISED PENAL CODE

(Act No. 3815, as amended)
- It was named by a committee which was created by Administrative Order
No. 94 of the Department of Justice, dated October 18,1927.
- Taking into consideration the existing conditions, special penal laws, and the
ruling laid down by the Supreme Court.
- They did not add anything to it, but revised and include others related to it.
- Old penal code took effect from July 14, 1887 to December 31, 1931

Consists of two books

Book one
a. Basic principles affecting criminal liability
b. Provisions on penalties including criminal and civil liability
Book two
a. Defines felonies with the corresponding penalties, classified and
grouped under 14 different titles
Date of effectiveness

Article 1. Time when Act takes effect. – This code shall take effect on the first
day January, 1932.

Two theories in Criminal Law

1. The classical theory
- Criminal liability is human free will
- There is a little regard with human element
2. The positivist theory
- There is a strange phenomenon to a person which led him to do wrong, even
without his volition.
- Crime is a natural phenomenon and cannot be treated by application of
principles of law and jurisprudence.

Article 2. Application of the Provision.

Article 3. Definition. – Acts and omissions punishable by law are felonies
(delitos).

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

Difference:
Deceit > deliberate intent
Fault > imprudence, negligence, lack of foresight, or lack of skill.

Mistake of Fact as a defense: (if proven, there is no criminal liability)

1. 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.

Dolo (with malice):

1. Mens Rea [Guilty mind] – Criminal mind but no act
2. Actus Rea [Guilty act] – Criminal act but no mind *ex. A child stabbing his
classmate with a pencil.
These two must be present in order to perceive as a crime with intent.

Article 4. Criminal Liability.

a. Proximate Cause – “he who is the cause of the cause is the cause of the
evil caused.”
- Direct, Natural, Logical consequences of his act.
b. Intervening Cause – between the defendant’s actions and the accident and
causes the injuries.

Article 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.

— Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper decision
and shall report to the Chief Executive, through the Department of Justice,
the reasons which induce the court to believe that said act should be made the
subject of penal legislation.
In the same way the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused
by the offense.

Trial of criminal case requires: 1st Paragraph of Article 5

1. The act committed by the accused appears not punishable by any law;
2. 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.

“nullum crimen, nulla poena sine lege.” = there is no crime, if there is no law that
punishes the act.

“in cases of excessive penalties”: 2nd Paragraph of Article 5

1. 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 —
a. the accused acted with lesser degree of malice, and/ or;
b. there is no injury or the injury caused is of lesser gravity.
3. The court should not suspend the execution of the sentence.
4. The judge should submit a statement to the Chief Executive, through the
Secretary of Justice, recommending executive clemency.

Article 6. Consummated, frustrated, and attempted felonies.

— Consummated felonies, as well as those which are frustrated and

attempted, are punishable.

A felony is consummated when all the elements necessary for its execution
and accomplishment are present; and 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.
There is an attempt when the offender commences 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.
consummated
Consummated felony, defined.
- A felony is 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.

- There is an attempt when the offender commences 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:
(1) Internal acts and (2) external acts.

Internal acts, 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.

External acts cover (a) preparatory acts; and (b) acts of execution.
a. Preparatory acts — ordinarily they are not punishable.

Ordinarily, preparatory acts are not punishable. Hence, proposal and conspiracy to
commit a felony, which are only preparatory acts, are not punishable, except when
the law provides for their punishment in certain felonies. (Art. 8)
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)

Elements of attempted felony:

1. 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 desistance;
4. The non-performance of all acts of execution was due to cause or accident
other than his spontaneous desistance.

Preparatory act is the preparation done is not connected to a crime.

Overt act is the preparation done is connected to a crime.

Elements of frustrated felony:

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 reason of causes independent of the will of the
perpetrator.

Attempted or Frustrated Felony Impossible Crimes

The evil intent of the offender is not accomplished.
Possible of accomplishment Cannot be accomplished
Intervention of certain cause or Inherently impossible, inadequate or
accident in which the offender has no ineffectual.
part.

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

Manner of committing the crime.

1. Formal crimes – consummated in one instant, no attempt.
2. Crimes consummated by mere attempt or proposal or by overt act.
3. Felony by omission.
4. Crimes requiring the intervention of two persons to commit them are
consummated by mere agreement.
5. Material crimes – There are three stages of execution.
- Ex. Homicide, rape, etc., are not consummated in one instant or by a single
act. These are the material crimes.

There is no attempted or frustrated impossible crimes.

Article 7. When light felonies are punishable.

— Light felonies are punishable only when they have been consummated,
with the exception of those committed against persons or property.

Light felonies are those infractions of law for the commission of

which the penalty of arresto menor or a fine not exceeding 200 pesos, or both,
is provided. (Art. 9, par. 3)

Examples of light felonies punishable 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)

Article. 8. Conspiracy and proposal to commit felony.

— Conspiracy and proposal to commit felony are punishable only in the

cases in which the law specially 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.

There is proposal when the person who has decided to commit a felony
proposes its execution to some other person or persons.

Conspiracy exists when two or more persons come to an agreement concerning

the commission of a felony and decide to commit it (Art. 8).
Conspiracy is not a crime, except when it is related to, treason, rebellion, and
sedition.

The reason for this is because conspiracy is only considered as preparatory act,
and the law regards them as innocent or permissible, except in rare cases.
 Requisites of conspiracy:
1. Two or more persons came to an agreement
2. That the agreement concerned the commission of a felony
3. That the execution of the felony be decided upon

Requisites of proposal:
1. That a person has decided to commit a felony
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.
2. There is no decided, concrete, and formal proposal.
3. It is not the execution of a felony that is proposed.

The crimes in which conspiracy and proposal are punishable are against the
security of the State or economic security.

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

— Grave felonies are those to which the law attaches the capital punishment
or penalties which in any of their periods are afflictive, in accordance with
Article 25 of this Code.

Less grave felonies are those which the law punishes with penalties which in
their maximum period are correctional, in accordance with the above-
mentioned article.

Light felonies are those infractions of law for the commission of which the
penalty of arresto menor or a fine not exceeding Forty thousand pesos
(P40,000), or both, is provided. (As amended by R.A. No. 10951)

1. Capital punishment is death penalty.

2. Afflictive penalties: Penalties which in any of their periods

Reclusion perpetua
Reclusion temporal
Perpetual or temporary absolute disqualification
Perpetual or temporary special disqualification
Prision mayor
 3. Correctional penalties: Penalties in their maximum period
Prision correccional
Arresto mayor
Suspension
Destierro

4. “The penalty of arresto menor or a fine not exceeding P40,000, or both is

provided.”

Article. 10. Offenses not subject to the provisions of this Code.

— Offenses which are or in the future may be punishable under special laws
are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the
contrary.

First clause – Lex specialis derogant generali – special penal laws are controlling
with regard to offenses specifically punished.

Second clause – soul of the article – the main idea and purpose of the article shall
be embodied in the provision “code shall be supplementary” to special laws, unless
the latter should specifically provide the contrary.

1. Special laws (US v. Serapio) – penal law which punishes acts not defined
and penalized by the Penal Code.
- Penalty from 5 to 10 years or a fine not exceeding P5,000.00, or both, in the
discretion of the court.

2. Supplementary – supplying what is lacking; additional.

Suppletory application of the RPC:

a. Subsidiary Penalty
b. Civil Liability
c. Rules on Service of Sentence
d. Definition on Principals, Accomplices, and Accessories
e. Principle of Conspiracy

3. Unless the latter should specially provide the contrary – if contrary

provisions is absent, the general provisions of the RPC, by their nature, are
necessarily applicable, may be applied suppletory.
 Chapter Two

JUSTIFYING CIRCUMSTANCES
AND CIRCUMSTANCES WHICH EXEMPT FROM
CRIMINAL LIABILITY

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.

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.

Imputability Responsibility
A deed may be imputed to a person. The person must take the consequence
of such a deed.

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.

I. Justifying 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. 11, where the civil liability
is borne by the persons benefited by the act.
2. Basis of Justifying circumstances
- The law recognizes the non-existence of a crime by expressly stating in the
opening sentence of Article 11 that the persons therein mentioned "do not
incur any criminal liability."

Article 11. Justifying circumstances. - The following do not incur any criminal
liability:
 1. Anyone who acts in defense of 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.
2. Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or his relatives by affinity in the same degrees and those
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 revocation was given by
the person attacked, that the one making defense had no part therein.
3. 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.
4. Any person who, in order to avoid an evil or injury, does not 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;
Third. That there be no other practical and less harmful means of
preventing it.
5. Any person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office.
6. Any person who acts in obedience to an order issued by a superior for
some lawful purpose.

There is no crime committed, the act being justified.

Burden of Proof.
- The circumstances mentioned in Art. 11 are matters of defense and it is
incumbent upon the accused, in order to avoid criminal liability, 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.

Par. 1. – Self-defense.
Anyone who acts in defense of 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.

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.

Requites of self-defense.
1. Unlawful aggression
2. Reasonable necessity of the means employed to prevent or repel it
3. Lack of sufficient provocation on the part of the person defending himself.

Sine qua non (necessary condition)

- There can be no self-defense, complete or incomplete, unless the victim has
committed an unlawful aggression against the person defending himself.

Two kinds of aggression

1. Lawful – Fulfillment of duty, Protection of property, Exercise of right.
2. Unlawful – Unlawful aggression is equivalent to assault or at least
threatened assault of an immediate and imminent kind. 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.

Peril to one’s life.

1. Actual – that the danger must be present, that is actually in existence.
 2. Imminent – that the danger is on point of happening. It is not required that
the attack already begins, for it may be too late.

Peril to one’s limb. (Death or bodily harm)

Retaliation is not a 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.

No unlawful aggression
1. Concerted fight
2. There is an agreement to fight
3. The challenge to a fight must be accepted

Unlawful aggression in defense of other rights.

1. Defense of woman’s honor
2. Defense of property
3. Defense of home

Mere threatening attitude is not an unlawful aggression.

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 of the aggressor to cause an injury.

Second requisite:
1. “To prevent”
2. “To repel”

Rational equivalence
- The defense is based on principal factors of emergency, imminent danger,
instinct, of the person being attacked.
1. Necessity of the course of action taken.
2. Place and occasion of the assault considered.
3. The darkness of the night and the surprise which characterized the assault
considered.

Necessity of the means used.

 - The means employed by the person making a defense must be rationally
necessary to prevent or repel an unlawful aggression.

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.

First two requisites common to three kinds of legitimate denfese.

- 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 of the person defending himself."
- 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.

Cases in which third requisite of self-defense considered present.

The third requisite of self-defense is present —
1. 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
4. When, even if a provocation was given by the person defending himself, it
was not proximate and immediate to the act of aggression.

Par. 2 – Defense of relatives.

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 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, parents-in-law, son or daughter-in-law,

and brother or sister-in-law.

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.

Requisites of defense of relatives:

1. Unlawful aggression
2. Reasonable necessity of the means employed to prevent or repel it
3. In case the provocation was given by the person attacked, the one making
the defense had no part therein.

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.

Requisites of defense of stranger:

1. Unlawful aggression
2. Reasonable necessity of the means employed to prevent or repel it
3. The person defending be not induced by revenge, resentment, or other evil
motive.

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 motive" as illegitimate.

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.

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;
Third. That there be no other practical and less harmful means of
preventing it.

"That 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. 11 is not applicable.

"That the injury feared be greater than that done to avoid it."
the instinct of self-preservation will always make one feel that his own safety is of
greater importance than that of another.

“The greater evil should not be brought about by the negligence or imprudence of
the actor. When the accused was not avoiding any evil, he cannot invoke the
justifying circumstance of avoidance of a greater evil or injury.”

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

Fulfillment of duty is different from self-defense.

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

II. Exempting circumstances.

1. Definition
- Exempting circumstances (non-Imputability) 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. Basis
- The exemption from punishment is based on the complete absence of
intelligence, freedom of action, or intent, or on the absence of negligence on
the part of the accused.
- Under the Revised Penal Code, 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.

Article 12. Circumstances which exempt from criminal liability. – the following
are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a
lucid interval.
When the imbecile or an insane person has committed an act which the law
defines as a felony (delito), the court shall order his confinement in one of the
hospitals or asylums established for persons thus afflicted, which he shall not
be permitted to leave without first obtaining the permission of the same court.
2. A person under nine years of age.
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 Art. 80 of this Code.
When such minor is adjudged to be criminally irresponsible, the court, in
conformably with the provisions of this and the preceding paragraph, shall
commit him to the care and custody of his family who shall be charged with
his surveillance and education otherwise, he shall be committed to the care of
some institution or person mentioned in said Art. 80.
 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.
5. Any person who act under the compulsion of irresistible force.
6. Any person who acts under the impulse of an uncontrollable fear of
an equal or greater injury.
7. Any person who fails to perform an act required by law, when
prevented by some lawful insuperable cause.

Par. 1 — An imbecile or an insane person, unless the latter has acted during a
lucid interval.

Difference of insane to imbecile:

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. 12 is one who is deprived completely of
reason or discernment and freedom of the will at the time of committing the crime.

Burden of Proof.
- The defense
- Will always be in favor of sanity.

Evidence of Insanity.
- 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.

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.

Diseases related to insanity:

1. Dementia Praecox
2. Schizophrenia
3. Kleptomania
4. Epilepsy (at the time of the committed offense)

An imbecile cannot discern what is right and wrong.

Non compos mentis – unsound mind, idiot, lunatic

Other cases of lack of intelligence:

1. Committing a crime while in a dream. (Somnambulism or sleepwalking)
a. Hypnotism
2. Committing a crime while suffering from malignant malaria.

Basis of paragraph 1
- The exempting circumstance of insanity or imbecility is based on the
complete absence of intelligence, an element of voluntariness.

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 less;" 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.

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 (15) years
of age.

Basis of paragraph 2.
- The exempting circumstance of minority is based also on the
complete absence of intelligence.
.
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 12 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.
1. 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.
2. 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."

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:
1. The age of absolute irresponsibility — 15 years and below (infancy).
2. The age of conditional responsibility — 15 years and 1 day to 18 years.
3. The age of full responsibility — 18 or over (adolescence) to 70 (maturity).
4. The age of mitigated responsibility — 15 years and 1 day to 18 years, the
offender acting with discernment; 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.

Discernment means the capacity of the child at the time of the commission of the
offense to understand the differences between right and wrong and the
consequences of the wrongful act.

Difference of intent to discernment:

 - “Intent" refers to the desired act of the person while "discernment" relates to
the moral significance that a person ascribes to the said act

Discernment may be shown by:

1. Manner of committing the crime.
2. Conduct of offender.

Determination of age: (any of these)

1. Certified true copy of the certificate of live birth
2. Baptismal certificate or school records, or any pertinent document that
shows date of birth
3. In the absence of these documents due to loss, destruction or unavailability,
the testimony of the child, member of the family either by affinity or
consanguinity, testimonies of other persons, appearance of the child, or other
relevant evidence, shall suffice.

Burden of Proof.
- Any person alleging the age of the child in conflict with the law has the
burden of proving the age of suck child.

Basis of paragraph 3.
- 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:
1. 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.

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
of humanly foreseeable consequences.
- If the consequences are plainly foreseeable, it will be a case of negligence.

Examples of accident not appreciated:

 1. Repeated blows
2. Accidental shooting
3. Altercation

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.

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.

Par. 6. — Any person who acts under the impulse of an uncontrollable fear of
an equal or greater injury.

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 commit;
2. That it promises an evil of such gravity and imminence that the ordinary man
would have succumbed to it.

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.

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
- Complete absence of freedom.

"Actus me invito factus non est meus actus." ("An act done by me against my will
is not my act."

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;
3. That his failure to perform such act was due to some lawful or insuperable
cause.

Basis of paragraph 7.
- The circumstance in paragraph 7 of Art. 12 exempts the accused from
criminal liability, because he acts without intent, the third condition of
voluntariness in intentional felony.

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 criminal. 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 injury by mere accident; failing to perform an act
required by law when prevented by some lawful or insuperable cause) 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.

Instigation is an absolutory cause.

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.

Instigation – the accused is lured into the commission of the offense charged in
order to prosecute him.
Entrapment – Employment of such means for the purpose of trapping or capturing
lawbreaker.

Complete defenses in criminal cases:

1. Any of the essential elements of the crime charged is not proved by the
prosecution and the elements proved do not constitute any crime.
2. The act of the accused falls under any of the justifying circumstances. (Art. 11)
3. The case of the accused falls under any of the justifying 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)
c. 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 lasciviousness. (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 Mitigating circumstances.

1. Definition
Mitigating circumstances are those which, if present in the commission of the
crime, do not entirely free the actor from criminal liability, but serve only to
reduce the penalty.
2. Basis
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
2. Privilege mitigating

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 offender the penalty lower by one or two degrees than
that provided by law for the crime.

Mitigating circumstances only reduce the penalty, but do not change the nature of
the crime.

a. 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.
b. If there is a privileged mitigating circumstance, the penalty for murder
will be reduced by one or two degrees lower.

Chapter Three
 CIRCUMSTANCES WHICH MITIGATE CRIMINAL LIABILITY
Art. 13. Mitigating circumstances. — The following are mitigating
circumstances:
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.
2. That the offender is under eighteen years of age or over seventy years. In
the case of the minor, he shall be proceeded against in accordance with the
provisions of Article 80.
3. That the offender had no intention to commit so grave a wrong as that
committed.
4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act.
5. That the act was committed in the immediate vindication of a grave offense
to the one committing the felony (delito) his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or relatives by affinity
within the same degrees.
6. That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.
7. That the offender had voluntarily surrendered himself to a person in
authority or his agents, or that he had voluntarily confessed his guilt before
the court prior to the presentation of the evidence for the prosecution.
8. Wise suffering some physical defect which thus restricts his means of
action, defense, or communication with his fellow beings.
9. Such illness of the offender as would diminish the exercise of the will-power
of the offender without however depriving him of consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and analogous to
those above-mentioned.
-----------------------------------
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.

Circumstances of justification or exemption:

1. Self-defense (Art. 11, par. 1)
2. Defense of relatives (Art. 11, par. 2);
3. Defense of stranger (Art. 11, par. 3);
4. State of necessity (Art. 11, par. 4);
5. Performance of duty (Art. 11, par. 5);
6. Obedience to order of superior (Art. 11, par. 6);
 7. Minority over 9 and under 15 years of age (Art. 12, par. 3);
8. Causing injury by mere accident (Art. 12, par. 4); and
9. Uncontrollable fear. (Art. 12, par. 6)
---------------------
When all the requisites necessary to justify the act are not attendant.
1. Incomplete self-defense, defense of relatives, and defense of stranger.
- Art. 13, par. 1, applies only when unlawful aggression is present, but the
other two requisites are not present.
2. Incomplete justifying circumstance of avoidance of greater evil
3. Incomplete justifying circumstance of performance of duty.
4. Incomplete justifying circumstance of obedience to an order.

When all the requisites necessary to exempt from criminal liability are not
attendant.
1. Incomplete exempting circumstance of minority over 9 and under 15 years
of age.
2. Incomplete exempting circumstance of accident.
Four requisites in order to be exempt from criminal liability:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident; and
4. Without fault or intention of causing it.

3. Incomplete exempting circumstance of uncontrollable fear.

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 it (uncontrollable).

Par. 2. — That the offender is under eighteen years of age or over seventy years.
In the case of 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 (18) or age shall be exempt from criminal
liability un- less he/she has acted with discernment.

- "Diversion" refers to an alternative, child-appropriate process of determining

the responsibility and treatment of a child in conflict with the law
- "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.
Diversion program examples:
a. Conferencing
b. Mediation
c. Conciliation

Basis of paragraph 2.
- The mitigating circumstances in paragraph 2 of Art. 13 are based on the
diminution of intelligence, a condition of voluntariness.

Par. 3. — That the offender had no intention to commit so grave 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 consequences.

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.

Intention must be judged by considering the weapon used, the injury inflicted, and
his attitude of the mind when the accused attacked the deceased.

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 of the offended party
immediately preceded the act.
Provocation:
- By provocation is understood any unjust or improper conduct or act of the
offended party, capable of exciting, inciting, or irritating anyone.

Requisites:
1. That the provocation must be sufficient.
2. That it must originate from the offended party
3. That the provocation must be immediate to the act, i.e., to the commission of
the crime by the person who is provoked.

Basis of paragraph 4.
- The mitigating circumstance in paragraph 4 of Art. 13 is based on the
diminution of intelligence and intent.

Par. 5. — That the act was committed in the immediate vindication of 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:
1. 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;
2. 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.

Distinguish provocation from vindication.

1. 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 offense 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.
3. 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.
 Basis of paragraph 5.
- The mitigating circumstance in paragraph 5 of Art. 13 is based on the
diminution of the conditions of voluntariness.

Par. 6. — That of having acted upon an impulse so powerful as naturally to

have produced passion or obfuscation.

Requisites:
1. The accused acted upon an impulse.
2. The impulse must be so powerful that it naturally produced passion or
obfuscation in him.

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 of lawlessness; or
2. The act is committed in a spirit of revenge.

Requisites of the mitigating circumstance of passion or obfuscation:

1. 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.

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.

Passion or obfuscation distinguished from irresistible force:

1. 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.
Passion or obfuscation distinguished from provocation:
1. Provocation comes from the injured party; passion or obfuscation is
produced by an impulse which may be caused by provocation.
2. Provocation must immediately precede the commission of the crime; in
passion or obfuscation, the offense which engenders perturbation ofmind
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. Voluntary surrender to a person in authority or his agents.
2. Voluntary confession of guilt before the court prior to the presentation of
evidence for the prosecution.

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.
c. That the surrender was voluntary.

- 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.

Requisites of plea of guilty.

In order that the plea of guilty may be mitigating, the three requisites must be
present:
1. 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 presentation of evidence
for the prosecution.
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.

Reasons why plea of guilty is mitigating.

- It is an act of repentance and respect for the law; it indicates a moral
disposition in the accused, favorable to his reform.

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.

Par. 8. — That the offender is deaf and dumb, blind or otherwise suffering from
some physical defect which thus restricts his means of action, defense, or
communication with his fellow beings.

Physical defect must restrict means of action, defense, or communication with

fellow beings.
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:
1. That the illness of the offender must diminish the exercise of his will-power.
 2. That such illness should not deprive the offender of consciousness of his
acts.

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.

Examples:
a. Over 60 years old with failing sight, similar to over 70 years of age
mentioned in paragraph 2.
b. Outraged feeling of owner of animal taken for ransom analogous to
vindication of a grave offense.
c. Outraged feeling of creditor, similar to passion and obfuscation mentioned in
paragraph 6.
d. Impulse of jealous feeling, similar to passion and obfuscation.
e. Manifestations of Battered Wife Syndrome, analogous to an illness that
diminishes the exercise of will power.
f. Esprit de corps, similar to passion and obfuscation.
g. Voluntary restitution of stolen property, similar to voluntary surrender
mentioned in paragraph 7.
h. Extreme poverty and necessity, similar to incomplete justification based on
state of necessity.
i. Testifying for the prosecution, analogous to plea of guilty.

Mitigating circumstances which are personal to the offenders:

Mitigating circumstances 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.
- Mitigating circumstances which arise from the private relations of the
offender with the offended party.
- Mitigating circumstances which arise from any other personal cause.
Circumstances which are neither exempting nor mitigating.
1. Mistake in the blow or aberration ictus, for under Article 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.)
3. 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.

IV. Aggravating Circumstances.

1. Definition
Aggravating circumstances are those which, if attendant in the commission of the
crime, serve to increase the penalty without, however, exceeding the maximum of
the penalty provided by law for the offense.

2. Basis
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 t h e offended party.

Four kinds of aggravating circumstances.

1. 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,
9,10,14,18,19, and 20, except "by means of motor vehicles," are generic
aggravating circumstances.
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), 15,16,17 and
21 are specific aggravating circumstances.
3. Qualifying — Those that change the nature of the crime.
Example — Alevosia (treachery) or evident premeditation qualifies the killing of a
person to murder.
Art. 248 enumerates the qualifying aggravating circumstances which qualify the
killing of person to murder.
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.

Chapter Four
CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL LIABILITY
Art. 14. Aggravating circumstances. — The following are aggravating
circumstances:
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt of or with insult to the public
authorities.
3. That the act be committed with insult or in disregard of the respect due the
offended party on account of his rank, age, or sex, or that it be committed in
the dwelling of the offended party, if the latter has not given provocation.
4. That the act be committed with abuse of confidence or obvious
ungratefulness.
5. That the crime be committed in the palace of the Chief Executive, or in his
presence, or where public authorities are engaged in the discharge of their
duties or in a place dedicated to religious worship.
6. That the crime be committed in the nighttime or in an uninhabited place, or
by a band, whenever such circumstances may facilitate the commission of the
offense.
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.
7. That the crime be committed on the occasion of a conflagration, shipwreck,
earthquake, epidemic, or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons who
insure or afford impunity.
9. That the accused 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 this Code.
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.
11. That the crime be committed in consideration of a price, reward, or
promise.
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.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strength, or means be employed to
weaken the defense.
16. That the act be committed with treachery (alevosia)
*There is treachery when the offender commits any of the crimes against the
person, employing means, methods or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.
17. That means be employed or circumstances brought about which add
ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a way not intended
for the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door, or
window be broken.
20. That the crime be committed with the aid of persons under fifteen years of
age, or by means of motor vehicle, airships, or other similar means.
21. That the wrong done in the commission of the crime be deliberately
augmented by causing other wrong not necessary for its commission.

Par. 1. — 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.
Meaning:
- The public officer must use the influence, prestige or ascendancy which his
office gives him as the means by which he realizes his purpose. The essence
of the matter is presented in the inquiry, "Did the accused abuse his office in
order to commit the crime?"

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.

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:

1. That the public authority is engaged in the exercise of his functions.
2. That he who is thus engaged in the exercise of said functions is not the
person against whom the crime is committed.
3. The offender knows him to be a public authority.
4. His presence has not prevented the offender from committing the criminal
act.

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.

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.
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.

Not applicable in certain cases.

1. When the offender acted with passion and obfuscation.
2. When there exists a relationship between the offended party and the
offender.
3. When the condition of being a woman is indispensable in the commission of
the crime.

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.

Meaning of provocation in the aggravating circumstance of dwelling.

- The provocation must be:
1. Given by the owner of the dwelling,
2. Sufficient, and
3. Immediate to the commission of the crime.
If all these 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.

What dwelling includes.

- Dwelling includes dependencies, the foot of the staircase and enclosure
under the house.

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 husband, she and her paramour
violated the respect due to the conjugal home and they both thereby injured
and committed a very grave offense against the head of the house.

Abuse of confidence
- 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 facilitating the commission of the crime, the
culprit taking advantage of the offended party's belief that the former would
not abuse said confidence.

Requisites:
1. That the offended party had trusted the offender.
2. That the offender abused such trust by committing a crime against the
offended party.
3. That the abuse of confidence facilitated the commission of the crime.

Par. 4. — That the act be committed with (1) abuse of confidence, or (2)
obvious ungratefulness.

Basis of these aggravating circumstances.

- are based on the greater perversity of the offender, as shown by the means
and ways employed.

Abuse of confidence
- 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 facilitating the commission of the crime, the
culprit taking advantage of the offended party's belief that the former would
not abuse said confidence.

Requisites:
1. That the offended party had trusted the offender.
2. That the offender abused such trust by committing a crime against the
offended party.
3. That the abuse of confidence facilitated the commission of the crime.

Par. 5. — That the crime be committed in the palace of the Chief Executive, or
in his presence, or where the 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.

Par. 6. — That the crime be committed (1) in the nighttime, or (2) in an

uninhabited place, or (3) by a band, whenever such circumstance may facilitate
the commission of the offense.

Basis of the aggravating circumstances.

- They are based on the time and place of the commission of the crime and
means and ways employed.

When aggravating.
Nighttime, uninhabited place or band is aggravating —
1. When it facilitated the commission of the crime; or
2. When especially sought for by the offender to insure the commission of the
crime or for the purpose of impunity
3. When the offender took advantage thereof for the purpose of impunity.

a. Nighttime.
Definition:
- By the word "nighttime" should be understood, according to Viada, that
period of darkness beginning at end of dusk and ending at dawn. Nights are
from sunset to sunrise.

Requisites:
The commission of the crime must begin and be accomplished in the nighttime.
The offense must be actually committed in the darkness of the night.
When the place of the crime is illuminated by light, nighttime is not aggravating.

b. Uninhabited place.
- Whether or not the crime committed is attended by this aggravating
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.

c. By 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.

"By a band" is aggravating in crimes against property or against persons or in the

crime of illegal detention or treason.

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.

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.

Requisites of this aggravating circumstance.

1. That armed men or persons took part in the commission of the crime,
directly or indirectly.
2. That the accused availed himself of their aid or relied upon them when the
crime was committed.

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.

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.

Requisites:
1. That the offender is on trial for an offense;
2. That he was previously convicted by final judgment of another crime;
3. That both the first and the second offenses are embraced in the same title of
the Code;
4. That the offender is convicted of the new offense.

"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.

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:
1. That the accused is on trial for an offense;
2. That he previously served sentence for another offense to which the law
attaches an equal or 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.

"Has been previously punished."

 - This phrase in paragraph 10 means that the accused previously served
sentence for another offense or sentences for other offenses before his trial
for the new offense.
- 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 sentences. even if the penalties provided by law
for the crimes are lighter.

 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.
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.
2. Reiteracion or habituality.
3. Multi-recidivism or habitual delinquency.
4. Quasi-recidivism.

The first two are generic aggravating circumstances, 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 oftener. 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. 9 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.

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 principals—to the former, because he directly
induces the latter to commit the crime, and the latter because he commits it.

Is this paragraph applicable to the one who gave the price or reward?
- 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.
- 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.

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.

When used as a means to kill another person, the crime is murder.

- The killing of the victim by means of such circumstances as inundation, fire,
poison, or explosion qualifies it to murder.

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.

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

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.

Essence of premeditation.
- The essence of premeditation 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.
- Evident premeditation has been fully established. The commission 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.

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.

Keyword: “CLUNG” to his determination to commit the crime.

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 commission of the
crime.

Craft (involves intellectual trickery and cunning on the part of the accused).
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 aggravation.

Fraud (insidious words or machinations used to induce the victim to act in a

manner which would enable the offender to carry out his design).

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 order not to
arouse the suspicion of the victim constitutes craft.

Disguise (resorting to any device to conceal identity).

Disguise, not considered.

- It is also worth mentioning that while appellant reportedly had a sort of a
mask and was using sunglasses, these clumsy accouterments could not
constitute the aggravating circumstance of disguise. Legally, disfraz
contemplates a superficial but somewhat effective dissembling to avoid
identification. Here, even if it is true that he assumed that masquerade,
appellant was readily recognizable because his face could easily be seen
together with the identifying feature of his mustache.

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

 Meaning of "advantage be taken.

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.
Illustrations of no advantage of superior strength.
1. One who attacks another with passion and obfuscation does not take
advantage of his superior strength.
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.
In these two cases, the offenders may or might have superior strength, but they do
not or did not take advantage of it
When abuse of superior strength is aggravating.
- The aggravating circumstance of abuse of superior strength depends on the
age, size and strength of the parties. It is considered whenever there is a
notorious inequality of forces between the victim and the aggressor,
assessing a superiority of strength notoriously advantageous for the
aggressor which is selected or taken advantage of by him in the commission
of the crime.

When there is an allegation of treachery, superior strength is absorbed.

- Like nighttime, superior strength is absorbed and inherent in treachery.

The circumstance of "by a band" and that of "abuse of superior strength,"

distinguished.
- The element of band is appreciated when the offense is com- mitted by more
than three armed malefactors regardless of the comparative 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 vis-à-vis the offended party.

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.

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 execution thereof which
 tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make.
- Treachery means that the offended party was not given opportunity to make
a defense.

Rules regarding treachery.

1. Applicable only to crimes against the person.
This is based on the phrase "crime against the person" in the definition of
treachery.
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 accomplishment, as the law says, "to insure its execution" only.
3. The mode of attack must be consciously adopted.
This is based on the phrase "employing means, methods, or forms in the execution
which tend directly and specially,” in the definition of treachery.

Treachery cannot be presumed; it must be proved by clear and convincing

evidence or as conclusively as the killing, if such be the crime, itself.

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.

When there is no evidence that the accused had, prior to the moment 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.

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.

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 reflected on the means,
methods and forms of killing the victim.

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.

To sustain a finding of treachery, the means, method or form of attack must be

shown to have been deliberately adopted by the appellant.

Requisites of treachery:
1. That at the time of the attack, the victim was not in a position to defend
himself; and
2. That the offender consciously adopted the particular means, method or form
of attack employed by him.

Treachery, abuse of superior strength, and means employed to weaken the defense,
distinguished.
- 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.
- 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 defense, 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 participating 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.
Treachery, evident premeditation and use of superior strength are absorbed in
treason by killings.

Treachery absorbs abuse of superior strength, aid of armed men, by a band and
means to weaken the defense.

Craft is included in and absorbed by treachery.

Age and sex are included in treachery.

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.

Applicable to crimes against chastity, less serious physical injuries, light or grave
coercion, and murder.

"Which add ignominy to the natural effects of the act."

- According to this clause, the means employed or the circumstances brought
about must tend to make the effects of the crime more humiliating or to put
the offended party to shame.

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.

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; hence, the law punishes him with more severity.

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 crime

"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 aggravating 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.
- To be considered as an aggravating circumstance, breaking the door must be
utilized as a means to the commission of the 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.
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 intended to counteract the great
facilities found by modern criminals in said means to commit crime and flee
and abscond once the same is committed.

"With the aid of persons under fifteen years of age."

"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.

"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.

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 crime.
What is cruelty?
- There 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.

Requisites of cruelty:
1. That the injury caused be deliberately increased by causing other wrong;
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 commission of the
crime had a deliberate intention to prolong the suffering of the victim.

Cruelty cannot be presumed.

Ignominy distinguished from cruelty.

- Ignominy (par. 17) involves moral suffering, while cruelty (par. 21) refers to
physical suffering.

Rapes, robbery and other forms of cruelties are aggravating circumstances of

ignominy and cruelty in treason.

Aggravating circumstances peculiar to certain felonies.

Among the aggravating circumstances peculiar to certain felonies are the
following:
1. 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)
3. 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 traffic, 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, etc.) is committed in an
uninhabited place or by a band, etc. 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.

Chapter 5
ALTERNATIVE CIRCUMSTANCES

Art. 15. Their 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.
They are the relationship, intoxication, and the degree of instruction and
education of the offender.
The alternative circumstance of relationship shall be taken into consideration
when the offended party is the spouse, ascendant, descendant, legitimate,
natural, or adopted brother or sister, or relative by affinity in the same degree
of the offender.
The intoxication of the offender shall be taken into consideration as a
mitigating circumstance when the offender has committed a felony in a state
of intoxication, if the same is not habitual or subsequent to the plan to commit
said felony; but when the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance.

The alternative circumstances are:

1. Relationship;
2. Intoxication; and
3. 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,
(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.
- 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.

When mitigating:
- 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)
- 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 malicious mischief
committed or caused mutually by spouses, ascendants, and descendants, or
relatives by affinity in the same line; brothers and sisters and brothers-in-law
and sisters-in-law, if living together.

When exempting:
- In view of the provision of Art. 332, when the crime committed is (1) theft,
(2) swindling or estafa, or (3) malicious mischief, relationship is exempting.
The accused is not criminally liable and there is no occasion to consider a
mitigating or an aggravating circumstance

When 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, a
brother-in-law, a half-brother, or adopted brother.
  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
(subsequent to the plan to commit a felony).

It is intentional when the offender drinks liquor fully knowing its effects, to find in
the liquor a stimulant to commit a crime or a means to suffocate any remorse.

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.

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.

Title Two
PERSONS CRIMINALLY LIABLE FOR FELONIES

Art. 16. Who are criminally liable. — The following are criminally liable for
grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
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.

Rules relative to light felonies:

1. 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 felonies, 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).

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 artificial 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.
 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 malice or
negligence. An artificial or juridical 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.
- 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.

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. Principals. – The following are considered principals:

1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it.
3. Those who cooperate in the commission of the offense by another act
without which it would not have been accomplished.

Illustration of the three types of principals.

- A, by promises of price and reward, induced B to kill C, 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 C.
- Although he did not actually participate in the killing of C, A is a principal,
because he directly induced B to kill C. B is also a principal, because he
took direct part in the execution of the felony by personally killing C. 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 of not have been accomplished.

Difference between Principals and 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.

PAR. 1. - PRINCIPALS BY DIRECT PARTICIPATION.

“Those who take a direct part in the execution of the act.”

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 requisites are present:
1. 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.
Thus, where the two accused each inflicted a serious wound which contributed to
the death of the victim, they are co-principals.

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.

Conspiracy.
- 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, 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 participate in the
transaction with a view to the furtherance of the common design and purpose.
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.
- 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.

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 situation and may be considered collectively as
corroborative and/or confirmatory of the evidence independent therefrom.

b. 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.

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.
b. Active cooperation by all the offenders in the perpetration of the crime will
also create joint responsibility.
c. Contributing by positive acts to the realization of a common criminal intent
also creates joint responsibility
d. Presence during the commission of the crime by a band and lending moral
support thereto, also create joint responsibility with the material executors.
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 participation in the double murder.
 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.

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 end.

When the second requisite is lacking, there is only conspiracy.

PAR. 2. - PRINCIPALS BY INDUCTION.

“Those who directly force or induce others to commit it.”

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 are:
a. By using irresistible force.
b. By causing uncontrollable fear.
In these cases, there is no conspiracy, not even a unity of criminal 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 consideration thereof are principals — the former, by
inducement; and the latter, by direct participation. There is collective criminal
responsibility.

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.
Requisites:
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.

PAR. 3. - PRINCIPALS BY INDISPENSABLE COOPERATION.

“Those who cooperate in the commission of the offense by another act without
which it would not have been accomplished.”

Meaning of the term "cooperate."

- To cooperate means to desire or wish in common a thing. But that common
will or purpose does not necessarily mean previous understanding, for it can
be explained or inferred from the circumstances of each case.

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 performing another act,
without which it would not have been accomplished.

First Requisites:
- 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 participation in the purpose of the
latter is sufficient, because the cooperation is indispensable to the
accomplishment of the commission of the offense.

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.

Art. 18. Accomplices. — Accomplices are the persons who, not being included
in Article 17, cooperate in the execution of the offense by previous or
simultaneous acts.

Quasi-collective criminal responsibility.

 - Between collective criminal responsibility 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 accomplices

“Not being included in Article 17.”

- But the participation or cooperation of the accomplice is not any one of
those mentioned in Article 17, which defines the three concepts of
principals. An accomplice does not fall under any of the three concepts
denned in Art. 17.
- 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 simultaneous acts but cannot be held
liable as principals are accomplices.

Distinction between accomplice and conspirator.

- Conspirators and accomplices have one thing in common: they know and
agree with the criminal design.
- Conspirators, however, 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.

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;
2. That he cooperates in the execution of the offense by previous 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.
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.

Note that before there could be an accomplice, there must be a principal by direct
participation. But the principal originates the criminal design. The accomplice
merely concurs with the principal in his criminal purpose.

2. When the accomplice saw the criminal acts of the principal.

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 indispensable. 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.

Third requisite:
There must be a relation between the criminal act of the principal and the act of the
one charged as accomplice.

Distinguish accomplice from principal in general.

- An accomplice is one who does not take a direct part in the commission 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 cooperates in the execution of the
act by previous or simultaneous actions.

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 cooperation. 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.
Distinguish an accomplice from a principal by direct participation.
1. In both, there is community of criminal design.
2. As to the acts performed, there is no clear-cut distinction between the acts of
the accomplice and those of the principal 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.

Art. 19. Accessories. — Accessories are those who, having knowledge of the
commission of the crime, and without having participated therein, either as
principals or accomplices, take part subsequent to its commission in any of the
following manners:
1. By profiting themselves or assisting the offender to profit by the effects
of the crime;
2. By concealing or destroying the body of the crime or the effects or
instruments thereof, in order to prevent its discovery;
3. 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.

Two classes of accessories are contemplated in paragraph 3 of Article 19.

a. Public officers who harbor, conceal or assist in the escape of the
principal of any crime (no light felony) with abuse of his public
functions.

Requisites:
1. The accessory is a public officer.
2. He harbors, conceals, or assists in the escape of the principal.
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 is known to be habitually guilty of some other crime.

Accessory distinguished from principal and from accomplice.

1. The accessory does not take direct part or cooperate in, or induce, the
commission of the crime.
2. The accessory does not cooperate in the commission of the offense by acts
either prior thereto or simultaneous therewith.
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
subsequently takes part in any of the three ways mentioned in Article 19.

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 relatives by affinity within the same degrees,
with the single exception of accessories falling within the provisions of
paragraph 1 of the next preceding article.

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.

Title Three
PENALTIES
Chapter One
PENALTIES IN GENERAL

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.

Different juridical conditions of penalty:

1. 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.

What is the purpose of the State in punishing crimes?

- To secure justice. The State has an existence 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.

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.

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 deprivation of liberty.
(c) Social defense — shown by its inflexible severity to recidivists and habitual
delinquents.

Constitutional restriction on penalties.

- The Constitution directs that "excessive fines shall not be imposed, nor cruel
and unusual punishment inflicted."
- The punishment is "cruel and unusual" when it is 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.

Art. 21. Penalties that may be imposed. — No felony shall be punishable by any
penalty not prescribed by law prior to its commission.

Art. 21 is not a penal provision. 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.

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.

THERE IS NO CRIME WHEN THERE IS NO LAW PUNISHING IT.

Art. 22. Retroactive effect of penal laws. — Penal laws shall have a retroactive
effect in so far as they favor the person guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5 of Article 62 of this Code, although
at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.
General rule is to give criminal laws prospective effect.

Exception — to give them retroactive effect when favorable to the accused.

Examples: RA No. 9346, RA No. 10592

Reason for the exception.

- The sovereign, in enacting a subsequent 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.

Revised Penal Code was not given retroactive effect.

Giving a law retroactive effect, if unfavorable to accused, will violate the

constitutional inhibition as to ex post facto laws.

The favorable retroactive effect of a new law may find the defendant in one of
these three situations:
1. 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.
In any case, the favorable new statute benefits him and should apply to him.

But when the culprit is a habitual delinquent, he is not entitled to the benefit of the
provisions of the new favorable statute.
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.
Not applicable to civil liability.

Rules applicable to special laws.

Criminal liability under former law is obliterated when the repeal is absolute.
- Criminal liability under the repealed law subsists:
(a) When the provisions of the former law are reenacted; or
(b) When the repeal is by implication; or
(c) When there is a saving clause.
Reenactment
- The right to punish offenses committed under an old penal law is not
extinguished if the offenses are still punished I the repealing penal law.

Repeal by implication
- An implied repeal transpires when a substantial conflict exists between the
new and the prior laws. In the absence of an express repeal, a subsequent
law cannot be construed as repealing prior law unless an irreconcilable
inconsistency and repugnancy exist in the terms of the new and the old laws.

Saving clause
- A saving clause operates to except from the effect of the repealing law what
would otherwise be lost under the new law.

No implied revival of repealed law

- When a law which expressly repeals a prior law itself repealed, the law first
repealed shall not be thereby revived unless expressly so provided.

Revival of law impliedly repealed

- When a law which impliedly repeals a prior law is itself repealed, the prior
law shall thereby be revived, unless the repealing law provides otherwise.

Only that penalty prescribed by law prior to the commission of

the felony may be imposed. (Art. 21
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 commission 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 pardon by the offended
party does not extinguish criminal action except as provided in Article 344 of
this Code; but civil liability with regard to the interest of the injured party is
extinguished by his express waiver.

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 information.
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.

"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.

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.

Art. 24. Measures of prevention or safety which are not considered penalties. —
The following shall not be considered as penalties.
1. The arrest and temporary detention of accused persons, as well as their
detention by reason of insanity or imbecility, or illness requiring their
confinement in a hospital.
2. The commitment of a minor to any of the institutions mentioned in
Article 80 and for the purposes specified therein.
3. Suspension from the employment or public office during the trial or in
order to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their
administrative or disciplinary powers, superior officials may impose
upon their subordinates.
5. Deprivation of rights and the reparations which the civil law may
establish in penal form.

They are not penalties, because they are not imposed as a result of judicial
proceedings. Those mentioned in paragraphs Nos. 1, 3 and 4 are merely
preventive measures before conviction of offenders.

Chapter Two
CLASSIFICATION OF PENALTIES

Art. 25. Penalties which may be imposed. — The penalties which may be
imposed, according to this Code, and their different classes, are those included
in the following:
SCALE
 PRINCIPAL PENALTIES
Capital punishment:
Death

Afflictive penalties:
Reclusion perpetua
Reclusion temporal
Perpetual or temporary absolute disqualification
Perpetual or temporary special disqualification
Prision mayor

Correctional penalties:
Prision correccional
Arresto mayor
Suspension
Destierro

Light penalties:
Arresto menor
Public censure

Penalties common to the three preceding classes:

Fine, and
Bond to keep the peace.

ACCESSORY PENALTIES
Perpetual or temporary absolute disqualification
Perpetual or temporary special disqualification
Suspension from public office, the right to vote and be voted for, the
profession or calling
Civil interdiction
Indemnification
Forfeiture or confiscation of instruments and proceeds of the offense
Payment of cost.

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.
Art. 25 classifies penalties into principal and accessory.
This article classifies penalties into:
1. 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.
1. Reclusion perpetua.
2. Perpetual absolute or special disqualification.
3. Public censure.

Divisible penalties are those that have fixed duration and are divisible into three
periods.

Classification of penalties according to subject-matter:

1. Corporal (death)
2. Deprivation of freedom (reclusion, prision, arresto).
3. Restriction of freedom (destierro).
4. Deprivation of rights (disqualification and suspension)
5. Pecuniary (fine).

Classification of penalties according to their gravity:

1. Capital,
2. Afflictive,
3. Correctional,
4. Light.

Art. 26. Fine — When afflictive, correctional, or light penalty. - A fine, whether
imposed as a single or as an alternative penalty, shall be considered an
afflictive penalty, if it exceeds One million two hundred pesos (P1,200,000); a
correctional penalty, if it does not exceed One million two hundred pesos
(P1,200,000) but is not less than Forty thousand pesos (P40,000); and a light
penalty, if it be less than Forty thousand pesos (P40,000). (As amended by R.A.
No. 10951)

"Whether imposed as a single or as an alternative penalty."

- Fines are imposed in many articles of this Code as an alternative penalty.

Fine is:
1. Afflictive - over P1,200,000.00
2. Correctional – P40,000.00 to P1,200.000.00
3. Light penalty — less than P40,000.00

Bond to keep the peace is by analogy:

1. Afflictive — over P1,200,000.00
2. Correctional – P40,000.00 to P1,200,000.00
3. Light penalty - less than P40,000.00

Chapter Three
DURATION AND EFFECT OF PENALTIES
Section One. — Duration of Penalties

Art. 27. Reclusion perpetua. — The penalty of reclusion perpetua shall be from
twenty years and one day to forty years.
Reclusion temporal. — The penalty of reclusion temporal shall be from twelve
years and one day to twenty years.
Prision mayor and temporary disqualification. — The duration of the penalties
of prision mayor and temporary disqualification shall be from six years and
one day to twelve years, except when the penalty of disqualification is imposed
as an accessory penalty, in which case, its duration shall be that of the
principal penalty.
Prision correccional, suspension, and destierro. — The duration of the
penalties of prision correccional, suspension, and destierro shall be from six
months and one day to six years, except when suspension is imposed as an
accessory penalty, in which case, its duration shall be that of the principal
penalty.
Arresto mayor. — The duration of the penalty of arresto mayor shall be from
one month and one day to six months.
Arresto menor. — The duration of the penalty of arresto menor shall be from
one day to thirty days.
Bond to keep the peace. — The bond to keep the peace shall be required to
cover such period of time as the court may determine. (As amended by R.A.
No. 7659, approved on December 13, 1993)

Duration of each of different penalties.

1. Reclusion perpetua — 20 yrs. and 1 day to 40 yrs.
2. Reclusion temporal — 12 yrs. and 1 day to 20 yrs.
3. Prision mayor and temporary disqualification — 6 yrs. and 1 day to 12 yrs.,
except when disqualification is accessory penalty, in which case its duration
is that of the principal penalty.
4. Prision correccional, suspension, and destierro — 6 mos. and 1 day to 6
yrs., 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.
7. Bond to keep the peace — the period during which the bond shall be
effective is discretionary on the court.

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.

Art. 28. Computation of penalties. — If the offender shall be in prison, the

term of the duration of the temporary penalties shall be computed from the
day on which the judgment of conviction shall have become final.
If the offender be not in prison, the term of the duration of the penalty
consisting of deprivation of liberty shall be computed from the day that the
offender is placed at the disposal of the judicial authorities for the
enforcement of the penalty. The duration of the other penalties shall be
computed only from the day on which the defendant commences to serve his
sentence.

Rules for the computation of penalties.

The prison authorities should compute the penalties imposed upon the convicts,
observing the following rules:
1. When the offender is in prison — the duration of temporary penalties is
from the day on which the judgment of conviction becomes final.
2. When the offender is not in prison — the duration of penalty
3. The duration of other penalties — the duration is from the day on which the
offender commences to serve his sentence.

Computation of duration.
- Article 13 of the Civil Code provides that a year consists of 365 days and a
month consists of 30 days and that in computing a period, the first day shall
be excluded and the last day included.

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 preventive
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 liberty.

- When the offender is not in prison, Rule No. 2 applies.
- 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.

Reason for Rule No. 1

 - 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. — Offenders or accused who have undergone preventive
imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon convicted
prisoners, except in the following cases:
1. When they are recidivists, or have been convicted previously twice or
more times of any crime; and
2. When upon being summoned for the execution of their sentence they
have failed to surrender voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary
rules imposed upon convicted prisoners, he shall be credited in the service of
his sentence with four- fifths of the time during which he has undergone
preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall
be deducted from thirty (30) years.

Whenever an accused has undergone preventive imprisonment for a period

equal to or more than the possible maximum imprisonment of the offense
charged to which he may be sentenced and his case is not yet terminated, he
shall be released immediately without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is under review. Computation
of preventive imprisonment for purposes of immediate release under this
paragraph shall be the actual period of detention with good conduct time
allowance: Provided, however, That if the accused is absent without justifiable
cause at any stage of the trial, the court may motu proprio order the rearrest
of the accused: Provided, finally, That recidivists, habitual delinquents,
escapees and persons charged with heinous crimes are excluded from the
coverage of this Act. In case the maximum penalty to which the accused may
be sentenced is destierro, he shall be released after thirty (30) days of
preventive imprisonment. (As amended by Rep. Act No. 6127, and Exec. Order
No. 214)

When is there preventive imprisonment?

- The accused undergoes preventive imprisonment when the offense charged
is nonbailable, or even if bailable, he cannot furnish the required bail.

1. Full Time of Preventive Imprisonment: if the detention prisoner agrees

voluntarily in writing, after being informed of the effects thereof, and with
the assistance of counsel, to abide by the same disciplinary rules imposed
upon convicted prisoners.
2. Four-Fifths of Time of Preventive Imprisonment: If the detention prisoner
does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with the assistance of a
counsel.

Destierro constitutes "deprivation of liberty."

- Although destierro does not constitute imprisonment (which is a typical
example of deprivation of liberty), it is nonetheless a deprivation of liberty.

Child in conflict with law, credited with full time spent in confinement.
- Under Section 41 of R.A. No. 9344, 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.

Offenders not entitled to the full time or four-fifths of the time of preventive
imprisonment:
1. Recidivist or those convicted previously twice or more times if any crime.
2. Those who, upon being summoned for the execution of their sentence, failed
to surrender voluntarily.
3. Habitual delinquents or those who, within a period of ten years from the date
of his release or last conviction of the crimes or serious or less serious
physical injuries, robbery, theft, estafa, or falsification, is found guilty of any
of said crimes a third time or oftener;
4. Escapees;
5. Persons charged with heinous crimes.

Section Two. — Effects of the penalties according to their respective nature

Art. 30. Effects of the penalties of perpetual or temporary absolute
disqualification. — The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the
offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular
elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is comprised in
paragraphs 2 and 3 of this Article shall last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office
formerly held.

Art. 31. Effects of the penalties of perpetual or temporary special

disqualification. — The penalties of perpetual or temporary special
disqualification for public office, profession, or calling shall produce the
following effects:
1. The deprivation of the office, employment, profession or calling
affected.
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence, according to the extent
of such disqualification.

Art. 32. Effects of the penalties of perpetual or temporary special

disqualification for the exercise of the right of suffrage. — The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for
any public office or to be elected to such office. Moreover, the offender shall
not be permitted to hold any public office during the period of his
disqualification.

Art. 33. Effects of the penalties of suspension from any public office, profession,
or calling, or the right of suffrage. — The suspension from public office,
profession, or calling, and the exercise of the right of suffrage shall disqualify
the offender from holding such office or exercising such profession or calling
or right of suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another
having similar functions during the period of his suspension.
Art. 34. Civil interdiction. — Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or
guardianship, either as to the person or property of any ward, of marital
authority, of the right to manage his property, and of the right to dispose of
such property by any act or any conveyance inter vivos.

Art. 35. Effects of bond to keep the peace. — It shall be the duty of any person
sentenced to give bond to keep the peace, to present two sufficient sureties
who shall undertake that such person 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 in its judgment, or otherwise to deposit such
amount in the office of the clerk of the court to guarantee said undertaking.

The court shall determine, according to its discretion, the period of duration
of the bond.

Should the person sentenced fail to give the bond as required he shall be
detained for a period which shall in no case exceed six months, if he shall have
been prosecuted for a grave or less grave felony, and shall not exceed thirty
days, if for a light felony.

Disqualification is withholding of privilege, not a denial of right.

Art. 36. Pardon; its effects. — A pardon 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.
A pardon shall in no case exempt the culprit from the payment of the civil
indemnity imposed upon him by the sentence.
Effects of pardon by the President.
1. A pardon shall not restore the right to hold public office or
the right of suffrage
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:

1. That the power can be exercised only after conviction;
2. That such power does not extend to cases of impeachment.
Art. 37. Costs — What are included. — Costs shall include fees and
indemnities in the course of the judicial proceedings, whether they be fixed or
unalterable amounts previously determined by law or regulations in force, or
amounts not subject to schedule.

The following are included in costs:

1. Fees, and
2. Indemnities, in the course of judicial proceedings.

No costs shall be allowed against the Republic of the Philippines, unless otherwise
provided by law.

Art. 38. Pecuniary liabilities — Order of payment. — In case the property of

the offender should not be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of the consequential damages.
3. The fine.
4. The costs of the proceedings.

When is Art. 38 applicable?

- It is applicable "in case the property of the offender should not be sufficient
for the payment of all his pecuniary liabilities." 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.

Art. 39. Subsidiary penalty. — If the convict has no property with which to
meet the fine mentioned in paragraph 3 of the next preceding Article, he shall
be subject to a subsidiary personal liability at the rate of one day for each
equivalent to the highest minimum wage rate prevailing in the Philippines at
the time of the rendition of judgment of conviction by the trial court, subject
to the following rules:

1. If the principal penalty imposed be prision correccional or arresto and fine,

he shall remain under confinement until his fine referred in the preceding
paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-
third of the term of the sentence, and in no case shall it continue for more than
one year, and no fraction or part of a day shall be counted against the
prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary

imprisonment shall not exceed six months, if the culprit shall have been
prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if
for a light felony.

3. When the principal penalty imposed is higher than prision correccional no

subsidiary imprisonment shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by confinement in a

penal institution, but such penalty is of fixed duration, the convict, during the
period of time established in the preceding rules, shall continue to suffer the
same deprivations as those of which the principal penalty consists.

5. The subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him from the fine in case his financial
circumstances should improve. (As amended by R.A. Nos. 10951 and 5465)

No subsidiary penalty in the following cases:

1. When the penalty imposed is higher than prision correccional.
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 be executed by
confinement in a penal institution and which has no fixed duration.

Section Three. — Penalties in which other accessory penalties are inherent

Art. 40. Death — Its accessory penalties. — The death penalty, when it is not
executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty
years following the date of sentence, unless such accessory penalties have been
expressly remitted in the pardon.

Art. 41. Reclusion perpetua and reclusion temporal — Their accessory

penalties. — The penalties of reclusion perpetua and reclusion temporal shall
carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Art. 42. Prision mayor — Its accessory penalties. — The penalty prision mayor
shall carry with it that of temporary absolute disqualification and that of
perpetual special disqualification from the right of suffrage which the
offender shall suffer although pardoned as to the principal penalty, unless the
same shall have been expressly remitted in the pardon.

Art. 43. Prision correccional — Its accessory penalties. — The penalty of

prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, if the duration of said
imprisonment shall exceed eighteen months. The offender shall suffer the
disqualification provided in this article although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Art. 44. Arresto — Its accessory penalties. — The penalty of arresto shall carry
with it that of suspension of the right to hold office and the right of suffrage
during the term of the sentence.

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime.
— Every penalty imposed for the commission of a felony shall carry with it
the forfeiture of the proceeds of the crime and the instruments or tools with
which it was committed.

Such proceeds and instruments or tools shall be confiscated and forfeited in

favor of the Government, unless they be the property of a third person not
liable for the offense, but those articles which are not subject of lawful
commerce shall be destroyed.
Chapter Four
APPLICATION OF PENALTIES
Section One. — Rules for the application of penalties to the persons criminally
liable and for the graduation of the same.

Art. 46. Penalty to be imposed upon principals in general. — The penalty

prescribed by law for the commission of a felony shall be imposed upon the
principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony in general terms, it shall
be understood as applicable to the consummated felony.

Art. 47. In what cases the death penalty shall not be imposed; Automatic review
of death penalty cases. — The death penalty shall be imposed in all cases in
which it must be imposed under existing laws, except when the guilty person is
below
(18) years of age at the time of the commission of the crime or is more than
seventy years of age or when upon appeal or automatic review of the case by
the Supreme Court, the required majority vote is not obtained for the
imposition of the death penalty, in which cases the penalty shall be reclusion
perpetua.

In all cases where the death penalty is imposed by the trial court, the records
shall be forwarded to the Supreme Court for automatic review and judgment
by the court en banc, within twenty (20) days but not earlier than fifteen (15)
days after promulgation of the judgment or notice of denial of any motion for
new trial or reconsideration. The transcript shall also be forwarded within ten
(10) days after the filing thereof by the stenographic reporter. (As amended by
R.A. No. 7659)

Republic Act No. 9346 which was enacted 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. It repealed R.A. 7659 which restored the death
penalty for certain heinous crimes.

The 1987 Constitution merely suspended the imposition of the death penalty.

Appeals in cases where penalty imposed is death, reclusion perpetua, or life

imprisonment.
(1) Where the Penalty Imposed Is Death: No notice of appeal is
necessary. The Court of Appeals will automatically review the
Judgment. (Rule 122, Sec 3 [d], Rules of Court)
(2) Where the Penalty Imposed Is Reclusion Perpetua or Life
Imprisonment: by Notice of Appeal (Rule 122, Sec. 3[c], Rules of
Court)

Death penalty is not imposed in the following cases:

1. 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.

What is the justification for death penalty?

- Social defense and exemplarity justify the penalty of death.

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 punishment implies something
inhuman and barbarous, something more than the mere extinguishment of
life.

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, (11) rape with
homicide, (12) plunder, (13) certain violations of the Dangerous Drugs Act,
and (14) carnapping.

Art. 48. Penalty for complex crimes. — When a single act constitutes two or
more grave or less grave felonies, or when an offense is a necessary means for
committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period. (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 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.

Two kinds of complex crimes:

 1. When a single act constitutes two or more grave or less grave felonies.
2. 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 crimes

"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.
2. That the single act produces (1) 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.

"When an offense is a necessary means for committing the other.

- 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:
1. That at least two offenses are committed.
2. That one or some of the offenses must be necessary to commit the other.
3. That both or all the offenses must be punished under the same statute.

In complex crime, when the offender executes various acts, he must have a single
purpose.
Subsequent acts of intercourse, after forcible abduction with rape, are separate acts
of rape.
No complex crime when trespass to dwelling is a direct means to commit a grave
offense.
No complex crime, when one offense is committed to conceal the other.
No complex crime where one of the offenses is penalized by a special law.
Illegal possession of firearm is not a necessary means to commit homicide.

Art. 48 is intended to favor the culprit.

A composite crime, also known as a special complex crime, is composed of two or

more crimes that the law treats as a single indivisible and unique offense for being
the product of a single criminal impulse. It is a specific crime with a specific
penalty provided by law, and differs from a compound or complex crime under
Article 48 of the Revised Penal Code.
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 conviction has yet
been declared.

Kinds of plurality of crimes.

1. formal or ideal plurality – There is one criminal liability
2. real or material plurality – there are different crimes in law as well as in the
conscience of the offender. In such cases, the offender shall be punished for
each and every offense that he committed.

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, consisting 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 unintermittent 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 committed. Hence,
only one penalty shall be imposed.
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.

A continued, continuous or continuing crime is different from a transitory crime in

criminal procedure to determine venue. An example 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 province 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 crime, 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 constitute 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 cases in which the felony committed is
different from that which the offender intended to commit, the following rules
shall be observed.
1. If the penalty prescribed for the felony committed be higher than that
corresponding to the offense which the accused intended to commit, the
penalty corresponding to the latter shall be imposed in its maximum period.
2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the penalty
for the former shall be imposed in its maximum period.
3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also constitute an
attempt or frustration of another crime, if the law prescribes a higher penalty
for either of the latter offenses, in which case the penalty provided for the
attempt or the frustrated crime shall be imposed in the
maximum period.

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).

Art. 50. Penalty to be imposed upon principals of a frustrated crime. — The

penalty next lower in degree than that prescribed by law for the consummated
felony shall be imposed upon the principals in a frustrated felony.

Art. 51. Penalty to be imposed upon principals of attempted crime. — The

penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to
commit a felony.

Art. 52. Penalty to be imposed upon accomplices in a consummated crime. —

The penalty next lower in degree than that pre- scribed by law for the
consummated felony shall be imposed upon the accomplices in the commission
of a consummated felony.

Art. 53. Penalty to be imposed upon accessories to the commission of a

consummated felony. — 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 con- summated felony.

Art. 54. Penalty to be imposed upon accomplices in a frustrated crime. — The

penalty next lower in degree than that prescribed by law for the frustrated
felony shall be imposed upon the accomplices in the commission of a
frustrated felony.

Art. 55. Penalty to be imposed upon accessories of a frustrated crime. — The

penalty lower by two degrees than that prescribed by law for the frustrated
felony shall be imposed upon the accessories to the commission of a frustrated
felony.
Art. 56. Penalty to be imposed upon accomplices in an attempted crime. — The
penalty next lower in degree than that prescribed by law for an attempt to
commit a felony shall be imposed upon the accomplices in an attempt to
commit the felony.
Art. 57. Penalty to be imposed upon accessories of an attempted crime. — The
penalty lower by two degrees than that pre- scribed by law for the attempt
shall be imposed upon the accessories to the attempt to commit a felony.

Diagram of the application of Arts. 50-57.

Consummated Frustrated Attempted
Principals 0 1 2
Accomplices 1 2 3
Accessories 2 3 4

"0" represents the penalty prescribed by law in denning a crime, 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.

Exception in Arts. 50-57.

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)

 What are the bases for the determination of the extent of penalty to be
imposed under the Revised Penal Code?
1. The stage reached by the crime in its development (either attempted,
frustrated or consummated).
2. The participations therein of the persons liable.
3. The aggravating or mitigating circumstances which attended the commission
of the crime.

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)
- A period of a divisible penalty, when prescribed by the Code as a penalty for
a felony, is in itself a degree.

Art. 58. Additional penalty to be imposed upon certain accessories. — Those

accessories falling within the terms of paragraph 3 of Article 19 of this Code
who should act with abuse of their public functions, shall suffer the additional
penalty of absolute perpetual disqualification if the principal offender shall be
guilty of a grave felony, and that of absolute temporary disqualification if he
shall be guilty of a less grave felony.

Art. 59. Penalty to be imposed in case of failure to commit the crime because the
means employed or the aims sought are impossible. — When the person
intending to commit an offense has already performed the acts for the
execution of the same but nevertheless the crime was not produced by reason
of the fact that the act intended was by its nature one of impossible
accomplishment or because the means employed by such person are
essentially inadequate to produce the result desired by him, the court, having
in mind the social danger and the degree of criminality shown by the offender,
shall impose upon him the penalty of arresto mayor or a fine ranging from 200
to 500 pesos.

Basis for imposition of proper penalty:

(1) social danger, and
(2) degree of criminality shown by the offender.

Art. 60. Exceptions to the rules established in Articles 50 to 57. — The

provisions contained in Articles 50 to 57, inclusive, of this Code shall not be
applicable to cases in which the law expressly prescribes the penalty provided
for a frustrated or attempted felony, or to be imposed upon accomplices or
accessories.

Accomplice, punished as principal.

1. The ascendants, guardians, curators, teachers and any person who by abuse
of authority or confidential relationship, 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)

Certain accessories are punished with a penalty one degree lower, instead of two
degrees.
1. 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)

Art. 61. Rules for graduating penalties. — For the purpose of graduating the
penalties which, according to the provisions of Articles fifty to fifty-seven,
inclusive, of this Code, are to be imposed upon persons guilty as principals of
any frustrated or attempted felony, or as accomplices or accessories, the
following rules shall be observed:
1. When the penalty prescribed for the felony is single and indivisible, the
penalty next lower in degree shall be that immediately following that
indivisible penalty in the respective graduated scale prescribed in Article 71 of
this Code.
2. When the penalty prescribed for the crime is com- posed of two indivisible
penalties, or of one or more divisible penalties to be imposed to their full
extent, the penalty next lower in degree shall be that immediately following
the lesser of the penalties prescribed in the respective graduated scale.
3. When the penalty prescribed for the crime is com- posed of one or two
indivisible penalties and the maximum period of another divisible penalty, the
penalty next lower in degree shall be composed of the medium and minimum
periods of the proper divisible penalty and the maximum period of that
immediately following in said respective graduated scale.
4. When the penalty prescribed for the crime is com- posed of several periods,
corresponding to different divisible penalties, the penalty next lower in degree
shall be composed of the period immediately following the minimum
prescribed and of the two next following, which shall be taken from the
penalty prescribed if possible; otherwise from the penalty immediately
following in the above mentioned respective graduated scale.
5. When the law prescribes a penalty for a crime in some manner not specially
provided for in the four preceding rules, the courts, proceeding by analogy,
shall impose the corresponding penalties upon those guilty as principals of the
frustrated felony, or of attempt to commit the same, and upon
accomplices and accessories. (As amended by Com. Act No. 217.

According to Arts. 50 to 57, the penalty prescribed by law for the felony shall be
lowered by one or two degrees, as follows:
1. For the principal in frustrated felony — one degree lower;
2. For the principal in attempted felony — two degrees lower;
3. For the accomplice in consummated felony — one degree lower; and
4. For the accessory in consummated felony — two degrees lower.

Scale No. 1 in Art. 71 enumerates the penalties in the following order:

1. Death
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional
6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure
10.Fine

The indivisible penalties are: (1) death, (2) reclusion perpetua, and (3) 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.

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.
71, 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 temporal;
and two divisible penalties to be imposed to their full extent are prision
correccional to prision mayor. The penalty immediately following the
divisible penalty of reclusion temporal in Scale No. 1 of Art. 71 is prision
mayor; and the penalty immediately following the lesser of the penalties of
prision correccional to prision 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
period of a divisible penalty.
- The penalty for murder (Art. 248) is reclusion temporal in its maximum
period to death. Reclusion perpetua, being between reclusion 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 of reclusion temporal in its
maximum period.
- The proper divisible penalty is reclusion temporal. The penalty immediately
following reclusion temporal is prision 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.

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 contemplates a penalty
composed of at least three periods.
- The several periods must correspond to different divisible penal- ties.
- The penalty which is composed of several periods corresponding to different
visible 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. 71 since it cannot be taken from the penalty
prescribed.

Fifth rule: (by analogy, because "not specially provided for in the
four preceding rules."
When the penalty has two periods.
Certain offenses denned in the Code are punished with a penalty composed of two
periods, either of the same penalty —
(1) For abduction (Art. 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.

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 prision mayor in its
maximum period is prision mayor in its medium period.
- If the penalty is reclusion temporal in its medium period, the penalty next
lower in degree is reclusion temporal in its minimum period.
- 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.

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, "When
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 aggravating 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 and/or aggravating circumstances should be considered.

Section Two. – Rules for the application of penalties with regard to the
mitigating and aggravating circumstances, and habitual delinquency.

Art. 62 Effects of the attendance of mitigating or aggravating circumstances and

of habitual delinquency. — Mitigating or aggravating circumstances and
habitual delinquency shall be taken into account for the purpose of
diminishing or increasing the penalty in conformity with the following rules:
1. Aggravating circumstances which in themselves constitute a crime
specially punishable by law or which are included by the law in denning
a crime and prescribing the penalty therefor shall not be taken into
account for the purpose of increasing the penalty.
1(a). When in the commission of the crime, advantage was taken by the
offender of his public position, the penalty to be imposed shall be in its
maximum regardless of mitigating circumstances.
The maximum penalty shall be imposed if the offense was committed by
any person who belongs to an organized/syndicated crime group.
 An organized/syndicated 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.
2. The same rule shall apply with respect to any aggravating
circumstances inherent in the crime to such a degree that it must of
necessity accompany the commission thereof.
3. Aggravating or mitigating circumstances which arise from the moral
attributes of the offender, or from his private relations with the
offended party, or from any other personal cause, shall only serve to
aggravate or mitigate the liability of the principals, accomplices, and
accessories as to whom such circumstances are attendant.
4. The circumstances which consist in the material execution of the act, or
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.
5. Habitual delinquency shall have the following effects:
(a) Upon a third conviction, the culprit shall be sentenced to the penalty
provided by law for the last crime of which he be found guilty and to
the additional penalty of prision correccional in its medium and
maximum periods;
(b)Upon a fourth conviction, the culprit shall be sentenced to the
penalty provided for the last crime of which he be found guilty and
to the additional penalty of prision mayor in its minimum and
medium periods; and
(c) Upon a fifth or additional conviction, the culprit shall be sentenced to
the penalty provided for the last crime of which he be found guilty
and to the additional penalty of prision mayor in its maximum period
to reclusion temporal in its minimum period.

Notwithstanding the provisions of this article, the total of the two

penalties to be imposed upon the offender, in conformity herewith, shall in no
case exceed 30 years.
For the purposes of this article, a person shall be deemed to be 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, robo,
hurto, estafa, or falsification, he is found guilty of any of said crimes a third
time or oftener. (As amended by Republic Act No. 7659.)

Paragraph 5----
Who is a habitual delinquent?
 - 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.

Requisites of habitual delinquency.

1. 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.
3. That after his conviction of, or after serving sentence for, the second offense,
he again committed, and, within 10 years from his last release or last
conviction, he was again convicted of any of said offenses, the third time or
oftener.

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 prision correccional in its medium and maximum
periods.
2. Upon a fourth conviction, the culprit shall also be sentenced to the
additional penalty of prision mayor in its minimum and medium periods.

3. Upon a fifth or additional conviction, the culprit shall also be sentenced to

the additional penalty of prision mayor in its minimum period to reclusion
temporal in its minimum period.

Habitual delinquency distinguished from recidivism.

(1) 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
delinquency, the crimes are specified.
(2) As to the period of time the crimes are committed. In recidivism, 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. Bernal, 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.

Reason for the rule:

- The purpose of the law in imposing additional penalty on a habitual
delinquent is to punish him more severely.

Art. 63. Rules for the application of indivisible penalties. — In all cases in
which the law prescribes a single indivisible penalty, it shall be applied by the
courts regardless of any mitigating or aggravating circumstances that may
have attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible
penalties the following rules shall be observed in the application thereof:
1. When in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall be applied.
2. When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating
circumstance and there is no aggravating circum- stance, the lesser
penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the
commission of the act, the courts shall reasonably allow them to offset
one another in consideration of their number and importance, for the
purpose of applying the penalty in accordance with the preceding rules,
according to the result of such compensation.

Exception —
When a privileged mitigating circumstance under Art. 68 or Art. 69 is present.
- But if the circumstance present is a privileged mitigating circumstance 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.

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 penalties, each
one of which forms a period in accordance with the provisions of Articles 76
and 77, the courts shall observe for the application of the penalty the following
rules, according to whether there are
or are no mitigating or aggravating circumstances:
1. When there are neither aggravating nor mitigating circumstances, they
shall impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of
the act, they shall impose the penalty in its minimum period.
3. When only an aggravating circumstance is present in the commission of
the act, they shall impose the penalty in its maximum period.
4. When both mitigating and aggravating circum- stances are present, the
court shall reasonably offset those of one class against the other
according to their relative weight.
5. When there are two or more mitigating circum- stances 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.
6. Whatever may be the number and nature of the aggravating
circumstances, the courts shall not impose a greater penalty than that
prescribed by law, in its maximum period.
7. Within the limits of each period, the courts shall determine the extent of
the penalty 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.

Outline of the rules:

1. No aggravating and no mitigating — medium period.
2. Only a mitigating — minimum period.
3. Only an aggravating — maximum period.
4. When there are aggravating and mitigating — the court shall offset those of
one class against the other according to their relative weight.
5. Two or more mitigating and no aggravating — penalty next lower, in the
period applicable, according to the number and nature of such
circumstances.
6. No penalty greater than the maximum period of the penalty prescribed by
law shall be imposed, no matter how many aggravating circumstances are
present.
7. 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.

Art. 65. Rules in cases in which the penalty is not composed of three periods. —
In cases in which the penalty prescribed by law is not composed of three
periods, the courts shall apply the rules contained in the foregoing articles,
dividing into three equal portions the time included in the penalty prescribed,
and forming one period of each of the three portions.

Art. 66. Imposition of fines. — In imposing fines the courts may fix any
amount within the limits established by law; in fixing the amount in each case
attention shall be given, not only to the mitigating and aggravating
circumstances, but more particularly to the wealth or means of the culprit.

Art. 67. Penalty to be imposed when not all the requisites of exemption of the
fourth circumstance of Article 12 are present. — When all the conditions
required in circumstance number 4 of Article 12 of this Code to exempt from
criminal liability are not present, the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period shall be imposed upon
the culprit, if he shall have been guilty of a grave felony, and arresto mayor in
its minimum and medium periods, if of a less grave felony.

Art. 68. Penalty to be imposed upon a person under eighteen years of age. —
When the offender is a minor under eighteen years and his case is one coming
under the provisions of the paragraph next to the last of Article 80 of this
Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not exempted
from liability by reason of the court having declared that he acted with
discernment, a discretionary penalty shall be imposed, but always lower by
two degrees at least than that prescribed by law for the crime which he
committed.
2. Upon a person over fifteen and under eighteen years of age the penalty next
lower than that prescribed by law shall be imposed, but always in the proper
period.

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 in the several cases mentioned in Articles 11 and 12,
provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present or lacking.

Art. 70. Successive service of sentences. — When the culprit has to serve two
or more penalties, he shall serve them simultaneously if the nature of the
penalties will so permit; otherwise, the following rules shall be observed:
In the imposition of the penalties, the order of their respective severity
shall be followed so that they may be executed successively or as nearly as
may be possible, should a pardon have been granted as to the penalty or
penalties first imposed, or should they have been served out.
For the purpose of applying the provisions of the next preceding paragraph
the respective severity of the penalties shall be determined in accordance with
the following scale:
1. Death
2. Reclusion Perpetua
3. Reclusion Temporal
4. Prision Mayor
5. Prision Correccional
6. Arresto mayor
7. Arresto menor
8. Destierro
9. Perpetual absolute disqualification
10. Temporary absolute disqualification
11. Suspension from public office, the right to vote and be voted for, the
right to follow profession or calling, and
12. Public Censure
Notwithstanding the provisions of the rule next preceding, the maximum
duration of the convict's sentence shall not be more than threefold the length
of time corresponding to the most severe of the penalties imposed upon him.
No other penalty to which he may be liable shall be inflicted after the sum of
those imposed equals the said maximum period.
Such maximum period shall in no case exceed forty years.
In applying the provisions of this rule the duration of perpetual penalties
(pena perpetua) shall be computed at thirty years. (As amended by Com. Act
No. 217.)

The three-fold rule.

 - According to the three-fold rule, the maximum duration of the convict’s
sentence shall not be more than three times the length of time corresponding
to the most severe of the penalties imposed upon him.

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 information which may
be filed in the same court or in different courts, at the same time or at
different times.

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:
(1) The material accumulation system;
(2) The juridical accumulation system; and
(3) The absorption system (the lesser penalties are absorbed by the graver
penalties).

Art. 71. Graduated scales. — In the cases in which the law prescribes a penalty
lower or higher by one or more degrees than another given penalty, the rules
prescribed in Article 61 shall be observed in graduating such penalty.
The lower or higher penalty shall be taken from the graduated scale in
which is comprised the given penalty.
The courts, in applying such lower or higher penalty, shall observe the
following graduated scales:

SCALE NO. 1
1. Death
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional
6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure

SCALE NO. 2
1. Perpetual absolute disqualification
 2. Temporary absolute disqualification
3. Suspension from public office, the right to vote and be voted for, and
the right to follow a profession or calling
4. Public censure
5. Fine.

Art. 72. Preference in the payment of the civil liabilities. — The civil liabilities
of a person found guilty of two or more offenses shall be satisfied by following
the chronological order of the dates of the final judgments rendered against
him, beginning with the first in order of time.

Section Three. — Provision common to the last two preceding sections.

Art. 73. Presumption in regard to the imposition of accessory penalties. —

Whenever the courts shall impose a penalty which by provision oflaw, 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.

Art. 74. Penalty higher than reclusion perpetua in certain cases. — In cases in
which the law prescribes a penalty higher than another given penalty, without
specifically designating the name of the former, if such higher penalty should
be that of death, the same penalty and the accessory penalties of Article 40,
shall be considered as the next higher penalty.

Reason for the provision of this article.

- The penalty higher than reclusion 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. —
Whenever it may be necessary to increase or reduce the penalty of fine by one
or more degrees, it shall be increased or reduced, respectively, for each
degree, by one- fourth of the maximum amount prescribed by law, without
however, changing the minimum.
The same rules shall be observed with regard to fines that do not consist
of a fixed amount, but are made proportional.

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.

1. 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 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.

Art. 76. Legal period of duration of divisible penalties. — The legal period of
duration of divisible penalties shall be considered as divided into three parts,
forming three periods, the minimum, the medium, and the maximum in the
manner shown in the following table.

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE

TIME INCLUDED IN EACH OF THEIR PERIODS

Distinction between "period" and "degree."

- The Revised Penal Code, unlike the old Penal Code, clearly establishes a
distinction between "period" and "degree," by designating as a "period" each
of the three equal parts of a divisible penalty and designating 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 cases in which the law prescribes a penalty composed of three distinct
penalties, each one shall form a period; the lightest of them shall be the
minimum, the next the medium, and the most severe the maximum period.

Whenever the penalty prescribed does not have one of the forms specially
provided for in this Code, the periods shall be distributed, applying by
analogy the prescribed 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.

When the penalty is composed of three distinct penalties.

- When the law prescribes a penalty composed of three distinct penalties, each
one shall form a period.

INDETERMINATE SENTENCE LAW

PROBATION LAW
(Presidential Decree No. 968, as Amended by Presidential Decree No. 1257, and as
Further Amended by Batas Pambansa Blg. 76 And Presidential Decree No. 1990

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AMNESTY looks backward while ABSOLUTE PARDON looks forward.

Amnesty restores public office and rights, while absolute pardon does not unless
expressly stated by the President.

Amnesty needs not to be convicted, but absolute pardon needs a sentence to be

pardon.